Unknown. Final rule

88,043 words·~400 min read·/register/2007/07/18/07-3479

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-07-18.xml --- 72 137 Wednesday, July 18, 2007 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 39378 E7-13837 Animal Animal and Plant Health Inspection Service RULES Livestock improvement: Alternative numbering systems, 39301-39307 E7-13932 Plant-related quarantine, foreign:

Fruits and vegetables import regulations; revision, 39482-39528 E7-13708 NOTICES Environmental statements; availability, etc.: Populous species and hybrids; genetically engineered; controlled field release, 39378-39379 E7-13922 Reports and guidance documents; availability, etc.: Eggplant, okra and peppers from Ghana; pest risk analysis, 39379-39380 E7-13911 Husked, silk-free baby corn from Kenya; pest risk analysis, 39380-39381 E7-13913 Peeled baby carrots from Kenya; pest risk analysis, 39381-39382 E7-13914 Ribes species fruits from South Africa; pest risk analysis, 39382-39383 E7-13912 Antitrust Antitrust Division NOTICES Competitive impact statements and proposed consent judgments:

Federation of Physicians and Dentists, et al., 39450-39462 07-3421 Army Army Department See Engineers Corps Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities CIA Central Intelligence Agency RULES Freedom of Information Act; implementation; Processing fees, 39315-39316 E7-13931 Coast Guard Coast Guard RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Lake Ontario, Oswego, NY, 39316-39318 E7-13844 Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 39385 E7-13938 Defense Defense Department See Engineers Corps Education Education Department NOTICES Meetings:

National Assessment Governing Board, 39385-39387 E7-13919 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: VyTech Industries, Inc., et al.; correction, 39463-39464 E7-13875 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Meetings: Climate Change Science Program Product Development Advisory Committee, 39387 E7-13923 Engineers Engineers Corps PROPOSED RULES Navigation regulations: Naval Support Activity, Panama City, Fl.; restricted areas establishment, 39355-39357 E7-13933 EPA Environmental Protection Agency RULES Pesticides; tolerances in food, animal feeds, and raw agricultural commodities:

Alachlor, etc., 39318-39325 E7-13830 Solid wastes: Granular mine tailings in asphalt concrete and portland cement concrete in transportation construction projects; mandatory criteria, 39325 E7-13544 NOTICES Agency information collection activities; proposals, submissions, and approvals, 39406-39409 E7-13898 Air pollution control: Citizens suits; proposed settlements— American Lung Association of Metropolitan Chicago, 39412-39413 E7-13902 People of the State of Illinois, 39410-39412 E7-13901 Sierra Club, 39413-39414 E7-13903 Citizen suits; proposed settlements— Citizens Against Ruining the Environment, 39409-39410 E7-13908 State operating permit programs— Pennsylvania, 39414-39415 E7-13896 Meetings:

Board of Scientific Counselors Executive Committee, 39415 E7-13895 Pesticide Program Dialogue Committee, 39415-39416 E7-13629 Pesticide programs: Risk assessments— 2-Octyl-3 (2H)-isothiazolone (Octhilinone); comment period extension, 39418-39420 E7-13805 Bromonitrostyrene, 39416-39418 E7-13804 Water pollution control: Total maximum daily loads— Louisiana, 39420 E7-13897 Equal Equal Employment Opportunity Commission NOTICES Meetings; Sunshine Act, 39420-39421 07-3517 Executive Executive Office of the President See Central Intelligence Agency See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness directives:

Airbus, 39307-39310 E7-13322 British Aerospace Regional Aircraft, 39310-39312 E7-13793 FCC Federal Communications Commission PROPOSED RULES Common carrier services: Satellite communications— Ku-band frequencies allocated to fixed-satellite services; spectrum allocation and licensing of vehicle-mounted earth stations, 39357-39370 E7-13718 Television broadcasting: Cable Communications Policy Act; implementation— Video programming delivery; market competition, 39370-39377 E7-13827 NOTICES Committees; establishment, renewal, termination, etc.:

Consumer Advisory Committee, 39422-39423 E7-13918 Common carrier services: Telecommunication relay services— State certification renewal, 39423-39424 07-3480 Debarment proceedings: Federowicz, Scott A., 39425-39426 E7-13831 *Applications, hearings, determinations, etc.:* Genesis Communications International, Inc., 39421-39422 E7-13722 FDIC Federal Deposit Insurance Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 39426-39427 E7-13877 Federal Emergency Federal Emergency Management Agency NOTICES Disaster and emergency areas:

Oklahoma, 39431 E7-13906 E7-13909 Texas, 39432 E7-13915 E7-13916 E7-13917 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints filed: BP West Coast Products LLC et al., 39397-39398 E7-13857 Nexen Marketing U.S.A., Inc., 39398 E7-13855 NSTAR Electric Co., 39398-39399 E7-13858 Electric rate and corporate regulation combined filings, 39399-39401 E7-13818 Environmental statements; notice of intent: Rockies Express Pipeline LLC, 39401-39402 E7-13819 Wyoming Interstate Company, Ltd., 39402-39403 E7-13873 Hydroelectric applications, 39403-39404 E7-13862 Meetings:

Enforcement authority implementation, 39404 E7-13870 Meetings; Sunshine Act, 39404-39406 E7-13850 *Applications, hearings, determinations, etc.:* Carolina Gas Transmission Corp., 39387 E7-13867 Columbia Gas Transmission Corp., 39388 E7-13851 E7-13853 Equitrans, L.P., 39388-39389 E7-13820 Golden Triangle Storage, Inc., 39389-39390 E7-13852 Guardian Pipeline, L.L.C., 39390-39391 E7-13860 Iroquois Gas Transmission System, L.P., 39391 E7-13856 Natural Gas Pipeline Co. of America, 39391-39392 E7-13863 Northern Border Pipeline Co., 39392 E7-13861 Northern Natural Gas Co., 39392-39393 E7-13864 E7-13868 Ozark Gas Transmission, L.L.C., 39393-39394 E7-13821 Public Service Co. of New Mexico, 39394 E7-13822 Rockies Express Pipeline LLC, 39394 E7-13866 Southern Natural Gas Co., 39394-39395 E7-13869 Texas Eastern Transmission, LP, 39395-39396 E7-13865 E7-13871 Transcontinental Gas Pipe Line Corp., 39396-39397 E7-13859 E7-13872 West Texas Gas, Inc.; gas cost reconciliation report, 39406 E7-13854 FMC Federal Maritime Commission NOTICES Agreements filed, etc., 39427 E7-13930 Ocean transportation intermediary licenses:

ABAD Air, Inc., et al., 39427 E7-13929 Saphire Cargo Movers, Inc., et al., 39428 E7-13939 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings; Sunshine Act, 39479 07-3520 Federal Reserve Federal Reserve System NOTICES Agency information collection activities; proposals, submissions, and approvals, 39428-39430 E7-13899 E7-13900 Banks and bank holding companies: Formations, acquisitions, and mergers, 39430 E7-13883 Permissible nonbanking activities, 39430-39431 E7-13884 FTC Federal Trade Commission PROPOSED RULES Industry guides:

Select leather and imitation leather products Correction, 39355 E7-13833 Fish Fish and Wildlife Service NOTICES Environmental statements; availability, etc.: Kanuti National Wildlife refuge, AK; comprehensive conservation plan, 39438-39439 E7-13942 Overabundant light goose population; management alternatives, 39439-39440 E7-13935 Rainwater Basin Wetland Management District, NE, 39440-39441 E7-13887 Forest Forest Service NOTICES Environmental statements; notice of intent: Plumas National Forest, CA, 39383-39384 07-3479 Meetings:

Resource Advisory Committees— Ketchikan, 39384 07-3489 Lassen County, 39384 07-3478 North Central Idaho, 39384 07-3477 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See U.S. Customs and Border Protection Housing Housing and Urban Development Department PROPOSED RULES Fair housing: International Building Code (2006); accessibility requirements review, 39540-39544 E7-13886 Public and Indian housing: Capital Fund or Operating Fund programs; financing activities, 39546-39554 E7-13846 NOTICES Reports and guidance documents; availability, etc.:

Accessibility provisions of the International Building Code, 39432-39438 E7-13885 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service See Reclamation Bureau See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service RULES Income taxes: Subsidiary stock; determinations and adjustments in transactions involving members of a consolidated group, 39313-39315 E7-13839 International International Trade Commission NOTICES Import investigations:

Honey from— Argentina and China, 39445 E7-13838 NOR and NAND flash memory devices and products containing same, 39444-39445 E7-13893 Off-the-road tires from— China, 39445 E7-13829 Sub-Saharan Africa; factors affecting trade patterns of selected industries; annual report, 39445-39446 E7-13828 Justice Justice Department See Antitrust Division See Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 39447-39450 E7-13888 E7-13889 E7-13890 E7-13891 E7-13907 Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 39462-39463 E7-13940 Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 39463 E7-13876 Land Land Management Bureau NOTICES Realty actions; sales, leases, etc.:

Colorado, 39441-39442 E7-13798 Mine Mine Safety and Health Administration NOTICES Petitions for safety standards modification; application, processing, disposition, etc., 39464-39466 E7-13921 National Foundation National Foundation on the Arts and the Humanities NOTICES Meetings: Humanities Panel, 39466-39467 E7-13841 National Park National Park Service NOTICES Meetings: Flight 93 National Memorial Advisory Commission, 39442 07-3488 National Register of Historic Places; pending nominations, 39442-39443 E7-13849 Realty actions; sales, leases, etc.:

Colorado, 39443 E7-13943 National Science National Science Foundation NOTICES Meetings; Sunshine Act, 39467 E7-13968 Nuclear Nuclear Regulatory Commission PROPOSED RULES Rulemaking petitions: Martinelli, Sherwood, 39354-39355 E7-13924 NOTICES Environmental statements; availability, etc.: National Bureau of Standards Reactor, MD, 39467 E7-13934 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Railroad Railroad Retirement Board NOTICES Agency information collection activities; proposals, submissions, and approvals, 39469 E7-13910 Reclamation Reclamation Bureau PROPOSED RULES Use of Bureau of Reclamation land, facilities, and waterbodies, 39530-39538 E7-13847 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes:

Boston Stock Exchange, Inc., 39469-39472 E7-13879 E7-13881 Chicago Board Options Exchange, Inc., 39472-39474 E7-13874 NYSE Arca, Inc., 39474-39479 E7-13878 E7-13880 E7-13882 SBA Small Business Administration NOTICES Meetings: Regulatory Fairness Boards— Region IX; hearing, 39479 E7-13920 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 39443-39444 07-3486 Trade Trade Representative, Office of United States NOTICES World Trade Organization:

Dispute settlement panel proceedings— Canada; subsidies and other domestic support for corn and other agricultural products, 39467-39468 E7-13941 European communities and certain member states; measures affecting trade in large civil aircraft, 39468-39469 E7-13945 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration Treasury Treasury Department See Internal Revenue Service U.S. U.S.-China Economic and Security Review Commission NOTICES Hearings, 39479-39480 E7-13927 MISSING FOR:

U.S. Customs and Border Protection U.S. Customs and Border Protection RULES Automated Commercial Environment Truck Manifest System: Advance electronic truck cargo information; ports of entry— Maine and Minnesota, 39312-39313 E7-13848 Separate Parts In This Issue Part II Agriculture Department, Animal and Plant Health Inspection Service, 39482-39528 E7-13708 Part III Interior Department, Reclamation Bureau, 39530-39538 E7-13847 Part IV Housing and Urban Development Department, 39540-39544 E7-13886 Part V Housing and Urban Development Department, 39546-39554 E7-13846 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 137 Wednesday, July 18, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 71, 77, 78, 79, and 80 [Docket No. 04-052-2] RIN 0579-AC48 Livestock Identification; Use of Alternative Numbering Systems AGENCY:

Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. SUMMARY: We are adopting as a final rule, with several changes, an interim rule that, among other things, amended the regulations to allow for the use of additional numbering systems for purposes of animal and premises identification. As amended by this document, the rule recognizes additional numbering systems for the identification of animals in interstate commerce and State/Tribe/Federal/industry cooperative disease control and eradication programs.

Additionally, the rule amends the regulations to authorize the use of a numbering system to identify premises where animals are managed or held. These regulatory changes are necessary to allow the use, for official purposes, of the new numbering systems in the National Animal Identification System. Use of the new numbering systems is not required by this final rule. EFFECTIVE DATE: July 18, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Neil Hammerschmidt, NAIS Coordinator, Surveillance and Identification Programs, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 200, Riverdale, MD 20737-1231;

(301)734-5571. SUPPLEMENTARY INFORMATION: Background In an interim rule effective and published in the **Federal Register** on November 8, 2004 (69 FR 64644-64651, Docket No. 04-052-1), we amended the regulations to recognize additional numbering systems for the identification of animals in interstate commerce and State/Federal/industry cooperative disease control and eradication programs. Additionally, the interim rule amended the regulations to authorize the use of a numbering system to identify premises where animals are managed or held. Specifically, the interim rule recognized the animal identification number

(AIN)for the identification of individual animals, the group/lot identification number

(GIN)for the identification of groups or lots of animals, and the premises identification number

(PIN)for the identification of premises. These new numbering systems are key elements in the National Animal Identification System (NAIS). The changes we made to the regulations in the interim rule were necessary to allow the use of these new numbering systems for official purposes in disease control and eradication programs. The interim rule did not require use of the new numbering systems, however. Finally, the interim rule amended the regulations to prohibit the removal of official identification devices and to eliminate potential regulatory obstacles to the recognition of emerging technologies that could offer viable alternatives to existing animal identification devices and methods. Comments on the interim rule were required to be received on or before January 7, 2005. We received 16 comments by that date. They were from beef, cattle, sheep, goat, and poultry producers; producers associations; and State governments. The comments are discussed below. There were several comments pertaining to our definition of the AIN. Issues discussed included the need for a nationally unique AIN, the recognition of different types of AINs, a possible alternative to the AIN, and the need for having a sunset date for other types of identification numbers so that the AIN will be in effect nationally. One commenter stated that the definition of the AIN contained in our November 2004 interim rule does not require that the number be “nationally unique” or indicate that there is a need to avoid duplication with existing numbers. It would be useful, according to this commenter, to include this requirement in the definition of AIN so that the rule is clear and specific throughout. We agree with this comment and are changing the definition accordingly. Since the NAIS is a national system, it is important that each AIN be nationally unique and that duplication be avoided. This final rule amends the definition of *animal identification number* ( *AIN* ) to read as follows: “A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording.” The same commenter, noting that the interim rule recognized three types of AINs (those beginning with an “840” country code, with the alpha characters “USA”, and with a numeric code assigned to the manufacturer of the device), stated that it was appropriate to identify the three types of numbers as “official numbering systems” and that the latter two forms should be referred to using alternative terminology, *e.g.* , “American ID” for the “USA” number, in order to prevent confusion. The commenter expressed the concern that only the “840” number will be recognized in the NAIS. We are not making any changes to the final rule in response to this comment. Because a uniform animal identification numbering system is needed to make the NAIS successful, we do intend that, in the future, only the “840” AIN will be recognized for official use, to the extent practical. The interim rule recognized the “USA” and manufacturer's code numbers in order to avoid placing an excessive burden on producers who were already using those numbering systems for identifying their animals. We view these numbering systems as transitional, however, and anticipate phasing them out as we progress toward full implementation of the NAIS. Additional information about this phasing-out process and timelines for the transition to APHIS' recognition of only the “840” AIN for official use will be provided in future rulemaking or other documents. Another commenter recommended that we adopt a “universal animal identification number (UAIN)” in place of our AIN. While the UAIN could have the same format as the AIN, the former would be a permanent and unique database number for a single animal and would be linked with all physical device identifiers associated with the animal, including radio frequency identification devices (RFIDs), visual tags, retinal scans, DNA, brands, and unlimited alternate identifiers. The commenter stated that the UAIN could be used at the producer's option as the RFID number, or another ISO-compliant number could be used as an alternative. According to the commenter, the UAIN alternative would make it possible for both currently accepted and new identification technologies to be easily adopted without having to reengineer the official database over time. The UAIN would also allow easy retagging or reidentification, as retagging would link a new physical identifier to the original UAIN. There would be only one UAIN linked with one animal. We are not making any changes in response to this comment. In the NAIS, the AIN will provide the same capabilities as would the commenter's recommended UAIN. The initial AIN assigned to an animal will be its lifetime number. Additionally, there is merit in having the animal's AIN attached to the animal for visual collection and subsequent recording for routine animal health tests, as well as health certificates. When a tag is lost and it is necessary to assign a new AIN to an animal, the pertinent NAIS databases will cross-reference the replacement AIN with the animal's original AIN. It is acknowledged that in some cases, the animal's original AIN may not be known, and thus cross-referencing of the two AINs will not be possible. Another commenter suggested that, as soon as possible, a reasonable sunset date for identification numbers other than the “840” AIN should be established and communicated to industry. The commenter stated that the goal of the AIN implementation period should be to minimize labor for producers whose livestock are already identified and to increase the number of animals that can be easily recorded in the system, while at the same time transitioning all livestock to be identified using one uniform, standardized, and technology-neutral numbering system for the NAIS. While we are not making any changes to the final rule as the result of this comment, which is beyond the scope of the present rulemaking, we do agree with the commenter. As noted above, we view the “USA” and manufacturer's code AINs as transitional and intend to phase them out as we progress toward full implementation of the NAIS, leaving the “840” AIN as the only one recognized for official use, to the extent practical. A date will be set for the sunset of the “USA” and manufacturer's code numbers, and advance notice will be provided to ensure a smooth transition to the “840” number for official use in disease control and eradication programs. A commenter suggested that the definition of *group/lot identification number (GIN)* should be amended in the final rule to state that each animal reported in a group movement be required to have an individual animal group identification tag and that the number of head being moved in each group should be reported to the official database. In the absence of these requirements, according to the commenter, one has no way to prove that the animals were part of the group being moved once they are intentionally or accidentally commingled at a premises. We are not making any changes to the final rule in response to this comment. Requiring an identification tag for each individual animal in a group would defeat the purpose and utility of group/lot identification. The intent behind the GIN is that the group of animals is referenced by a unique number so that each individual animal does not need to be tagged. We did determine, however, that we needed to change the format of the GIN slightly. The November 2004 interim rule defined the GIN as consisting of a seven-character PIN and a six-digit representation of the date on which the group or lot of animals was assembled. That format made no provision for situations where more than one group of animals may be moved from a premises on the same day. Several of the species working groups that are working with APHIS on the NAIS—the sheep industry in particular—believed that the format needed to be revised in order to allow for the assignment of multiple GINs to multiple groups of animals moving from a premises on a single day. Therefore, the GIN has been revised by adding two digits. These two additional digits will provide for the identification of up to 99 groups/lots of animals moving from a premises on the same day. In this final rule, we are amending the definition of the GIN to reflect this change in format. Other commenters discussed issues pertaining to the PIN. Concerns expressed by these commenters included the need for a nationally unique PIN, potential ambiguity about who will assign PINs, and the PIN format. The same commenter who stated that we needed to specify that the AIN would be a “nationally unique” number offered a similar comment about the PIN. Noting that the definition contained in the November 2004 interim rule states that the PIN is a “unique number,” the commenter argued that the final rule should state that the PIN is a “nationally unique number.” We agree with this comment as well. As with the AIN, it is important to avoid duplication with the PIN. We are amending the definition of *premises identification number (PIN)* in this final rule to indicate that it is a nationally unique number. We are also making some additional modifications to the definition of *premises identification number (PIN)* in this final rule for the sake of comprehensiveness, clarity, and flexibility. While the definition in the interim rule refers to PINs being assigned by State or Federal animal health authorities, the definition in this final rule provides for Tribal authorities to do so as well. Secondly, whereas the PIN is currently defined, in part, as a nationally unique number representing a geographically distinct location from other livestock production units, the definition in this final rule refers to a geographically distinct location from other premises. This change, complemented by a new definition of *premises* as a location where livestock or poultry are held or kept that we are adding to § 71.1, makes the definition of the PIN more inclusive than the one in the interim rule. Finally, the definition of the PIN in the interim rule also stated, among other things, that the number is associated with an address or legal land description. In this final rule, the definition indicates that the PIN is associated with an address, geospatial coordinates, and/or other location descriptors which provide a verifiably unique location. The new definition provides greater flexibility by allowing for additional means of determining specific locations that will be associated with PINs. The same commenter also expressed concern about the potential for confusion regarding who assigns PINs to premises. The commenter noted that the interim rule indicated that the PIN can be assigned by a State or Federal animal health official and that the assignment of the number is based on the judgment of either the State or Federal animal health official that the premises is a geographically distinct location from other livestock production units. According to the commenter, this provision appears to open up possibilities for jurisdictional conflict and could result in producers receiving conflicting information. The commenter argued that the PINs should be assigned to premises by the authorized animal health official, who, in most cases, would be the designated State animal health official. We are not making any changes to the final rule as a result of this comment. While it is a State or Tribe's responsibility to maintain the system to register premises within its geographic area and to be the direct contact for producers registering their premises, the NAIS, as a State-Tribal-Federal cooperative program, necessitates cooperative efforts for the interpretation of premises definitions to ensure consistent interpretation nationwide. The definition of *premises identification number (PIN)* contained in the interim rule reflected the cooperative nature of this enterprise, a point we are further reinforcing by adding the reference to Tribal authorities to the definition in the final rule. Another commenter expressed some concerns about the format of the PIN, as defined in our November 2004 interim rule. The interim rule recognized a new PIN format for official use: A seven-character alphanumeric code, with the right-most character being a check digit. This commenter suggested that adding an alphanumeric checksum character to a six-character code could increase the number of transcription errors because a seventh character could exceed the normal range of short-term memory. The commenter's preferred solution would have the numbers of digits in PINs vary according to the primary function of a particular premises. Commercial poultry producers' premises would have five-digit PINs assigned to them. There would be six-digit PINs assigned to swine producers, seven-digit PINs to beef producers, eight-digit PINs to dairy producers, and nine-digit PINs to other producers. Such a system, according to the commenter, would reserve the shorter PINs for those sections of agriculture that will be the primary users of the numbering system, support the implementation of species-specific identification tags, make tattoos easier to read, decrease transcription errors, and allow for the recording of numbers into electronic ID systems. We do not support this recommendation. The PIN is intended to identify a geographical location where livestock or poultry are managed or held rather than the species present at the premises. The agricultural activity at a given premises may change over time due to changes in ownership or other factors. The PIN, as defined in the rulemaking, allows for that possibility. Under the commenter's proposal, on the other hand, a change in the primary species produced at a premises would necessarily result in that premises having to be assigned a new PIN. One commenter asserted that while the definition of *official eartag* contained in the interim rule indicated that the official eartag must “provide unique identification for individual animals,” it did not specify how this was to be done. We do not agree with this comment. The definition of *official eartag* in the interim rule specified numbering systems that may be used on the eartags for the identification of individual animals in the NAIS. The same commenter also argued that while the official eartag requirements seem appropriate for the future, they may not be entirely so at present. The definition of *official eartag* provided in the interim rule stated that an official eartag must bear the U.S. shield. As the commenter pointed out, many animals currently carry tags that meet all the interim rule's requirements for an official eartag with the exception of having the U.S. shield printed on the tag. In addition, many such tags have been manufactured and are ready to be used in cooperative agreements to begin the implementation of the NAIS. By requiring animals carrying these tags, with verifiably unique numbers, to be retagged in order for their eartags to be recognized as official, APHIS would place a significant burden on producers and delay implementation of the program, according to the commenter. The implementation of the NAIS would be facilitated and industry would benefit if the requirement for printing the U.S. shield on official eartags were set at some future specific date and if tags currently in use that meet all other criteria continue to be recognized as official eartags until that date. We recognize that we would be placing a significant burden on producers if we required them to retag their animals in order that the eartags used meet the U.S. shield requirement. Therefore, we are going to allow producers employing the transitional “USA” and manufacturer's code numbers, as well as PIN-based numbers, to continue to use eartags that meet all the other specifications but do not have the U.S. shield imprinted upon them. In this final rule, we have amended the definition of *official eartag* to require the U.S. shield only for eartags using “840” AINs. Another commenter stressed the importance of having official identification devices be “tamper evident” and having provisions in the regulations stating that the removal of such devices prior to slaughter would be subject to penalties. The commenter also stated that minimum retention rates for such devices should be established in partnership with the livestock industry, and manufacturer compliance with those rates should be required for participation in the NAIS. We are not making any changes to the final rule in response to these comments. The definition of *official eartag* in the November 2004 interim rule states that an official eartag “must be tamper resistant and have a high rate of retention in the animal.” The commenter did not indicate how “tamper evident” differs from “tamper resistant.” The species working groups recommend specific technologies and performance requirements, including minimum retention rates, for those technologies. Based on those recommendations, APHIS has developed an evaluation process for device manufacturers seeking to have their devices approved for use in the NAIS. This process includes the evaluation of minimum retention rates for the identification devices used in the NAIS. The interim rule did add prohibitions on removing identification devices prior to slaughter to parts 71 and 93, though penalties were not specified. Generally, our regulations do not include descriptions of the penalties provided for by the Animal Health Protection Act and other statutes. Another commenter cautioned against relying completely on official tags as the sole or primary physical identifier of animals in the NAIS. Physical identifiers, the commenter noted, are not necessarily permanent. Tags of all types are lost, damaged, malfunction, or become unreadable. The commenter recommended that, in place of existing tag requirements, we adopt for use in the NAIS a Device Animal Identification Number—Radio Frequency Identification (DAIN-RF) tag. The DAIN-RF tag would be required to be attached to each animal or subdermally implanted in each animal, as determined by each species group, and would have to meet ISO standards so that each identification number would be unique. The DAIN-RF tag would be unofficial and would not bear the U.S. shield. The tag would be required to display the encoded ISO number on the outside. The use of these tags in the NAIS would not require manufacturers to change their normal manufacturing processes or to establish a unique color for official identification. The commenter also argued that DAIN-RF tags used for beef production should not be limited to a one-time use, since reusable tags have been employed to identify animals in the beef industry for over 10 years. The use of reusable tags reduces the costs of animal identification. We are not making any changes to the final rule in response to this comment. The commenter is certainly correct in saying that tags get lost; however, while some tag loss is expected, the requirement contained in the interim rule's definition of *official eartag* that such tags have high retention rates will provide adequate protection. Additional methods to validate identification when tags are lost will be considered as technology becomes practical and affordable, but to require identification that is absolutely permanent for all animals is not practical today. One-time use of official identification devices has been an important factor in maintaining the integrity of animal identification for many years, and we feel strongly this practice should continue. Additionally, the species working groups support the use of official tags. The same commenter also recommended that we add a definition of *AIN manager* to the final rule. The commenter stated that *AIN manager* should be defined as a representative of a company that receives allocations from the USDA of UAINs (as defined by this commenter and referred to earlier in this document) to be used as permanent database identification for the animal. AIN managers would be data service providers, data trustees, or others who participate in linking an ISO RFID device on the animal and subsequent alternate identification devices to the UAIN in a database. We are not making any changes to the final rule in response to this comment. The comment goes beyond the scope of this rulemaking, the primary intent of which is to allow for the use of new numbering systems for the identification of animals and premises for official purposes in disease control and eradication programs. In the NAIS User Guide, a document that was made available to the public in November 2006 and that represents the most up-to-date information about the program, we defined an *AIN device manager* , in part, as an “entity that represents an AIN device manufacturer for the distribution of AIN devices.” Additional description of the roles and responsibilities of the AIN device manager is provided in that definition and elsewhere in the NAIS User Guide. We will follow the recommendations of the NAIS Draft Program Standards, which were updated and released in February 2007 as the “Program Standards and Technical Reference” document, for the allocation of AINs to AIN device manufacturers and the distribution of AIN devices through AIN device managers and resellers. The same commenter also recommended that we adopt a new definition of *officially identified* . Based on this commenter's recommendation, which was discussed earlier in this document, that we adopt the UAIN as the official means of identification for individual animals in the NAIS, the suggested new definition of *officially identified* would read as follows: “An animal that is uniquely and officially identified with a tamper-proof database identifier allocated to data service providers or data trustees by USDA and known as a UAIN. An officially identified animal is one that has been reported to the official database for purposes of NAIS tracing. The UAIN will be linked to the physical identifiers associated with an animal.” We are not making any changes to the final rule as a result of this comment. As noted earlier, the AIN will serve as an animal's lifetime identification number and will provide the same capabilities as the UAIN that the commenter recommends. Having the AIN printed on an animal's official tag will aid in the administration of animal health programs. The same commenter also suggested that we needed to add certain definitions to the regulations in order to avoid ambiguity. While the regulations provide specific definitions of *commingling* for swine and sheep, no such definition is provided for cattle. The commenter recommended that the regulations should state that, for cattle, *commingling* means that an animal was not prohibited from coming in contact with another animal. The commenter also stated that the definition for a unit of animals varies among species, resulting in potential ambiguity in the establishment of group identification, and that production systems can be interpreted to have variable meanings within and across species. We will take these suggestions into consideration, though they appear to go beyond the scope of the present rulemaking, which is primarily concerned with allowing for the use of alternative numbering systems for identifying animals and premises. The GIN standards contained in this rule pertain to the numbering system. In the NAIS User Guide, published on the NAIS Web site on November 22, 2006, we defined the term *commingle* as referring “to events where animals are mixed or brought together with animals from other farms, ranches, or other production systems.” This definition was applicable to all species. A number of commenters stated that the voluntary Scrapie Flock Certification Program, which has worked effectively for small producers, should be continued in its current form rather than being replaced by a new identification system. (Numbering systems that are accepted for official use in this program are described in 9 CFR 79.2, which also contains a list of approved means of identification.) One of these commenters stressed the importance of producers with small goat herds being allowed to continue to use microchip implants as a means of animal identification. Implants, according to this commenter, are more reliable than eartags or tattoos, which are less likely to be permanent and are more vulnerable to tampering. We agree with these comments, but note that they do not necessitate any changes to the final rule. Producers with small goat herds will still be able to use microchip implants, since the definition of *official identification device or method* contained in the interim rule is sufficiently flexible to allow for the use of such devices. One commenter suggested that when the NAIS is fully implemented, health certificates for cattle should be eliminated. The commenter stated that the health certificates would be a duplication of the tracking function of the NAIS and would no longer be necessary. This comment does not appear to be relevant to the current rulemaking. Finally, in addition to the changes discussed above, we are adding a definition of *animal identification number (AIN)* to § 79.1 and revising the existing definition of *official eartag* in that section so that it matches the one described earlier in this document. These changes will ensure that the definitions in part 79 are consistent with the definitions found elsewhere in our regulations pertaining to the interstate movement of animals. Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule, with the changes discussed in this document. This final rule also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act. List of Subjects 9 CFR Part 71 Animal diseases, Livestock, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements, Transportation. 9 CFR Part 77 Animal diseases, Bison, Cattle, Reporting and recordkeeping requirements, Transportation, Tuberculosis. 9 CFR Part 78 Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and recordkeeping requirements, Transportation. 9 CFR Part 79 Animal diseases, Quarantine, Sheep, Transportation. 9 CFR Part 80 Animal diseases, Livestock, Transportation. Accordingly, we are amending 9 CFR parts 71, 77, 78, 79, and 80 as follows: PART 71—GENERAL PROVISIONS 1. The authority citation for part 71 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 2. Section 71.1 is amended by revising the definitions of *animal identification number (AIN), group/lot identification number (GIN), official eartag,* and *premises identification number (PIN)* and by adding a definition of *premises* to read as follows: § 71.1 Definitions. *Animal identification number (AIN)* . A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. *Group/lot identification number (GIN)* . The identification number used to uniquely identify a “unit of animals” of the same species that is managed together as one group throughout the preharvest production chain. The GIN consists of a seven-character premises identification number (PIN), as defined in this section, a six-digit representation of the date on which the group or lot of animals was assembled (MM/DD/YY), and two additional digits, ranging from 01 to 99, for the numbering of different groups or lots of animals assembled on the same premises on the same day. When more than one group of animals is assembled, the groups will be designated consecutively as 01, 02, 03, etc. *Official eartag* . An identification tag providing unique identification for individual animals. An official eartag which contains or displays an AIN with an 840 prefix must bear the U.S. shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal. Official eartags must adhere to one of the following numbering systems:

(1)National Uniform Eartagging System.

(2)Animal identification number (AIN).

(3)Premises-based number system. The premises-based number system combines an official premises identification number (PIN), as defined in this section, with a producer's livestock production numbering system to provide a unique identification number. The PIN and the production number must both appear on the official tag.

(4)Any other numbering system approved by the Administrator for the identification of animals in commerce. *Premises* . A location where livestock or poultry are housed or kept. *Premises identification number (PIN)* . A nationally unique number assigned by a State, Tribal, and/or Federal animal health authority to a premises that is, in the judgment of the State, Tribal, and/or Federal animal health authority, a geographically distinct location from other premises. The premises identification number is associated with an address, geospatial coordinates, and/or location descriptors which provide a verifiably unique location. The premises identification number may be used in conjunction with a producer's own livestock production numbering system to provide a unique identification number for an animal. It may also be used as a component of a group/lot identification number (GIN). The premises identification number may consist of:

(1)The State's two-letter postal abbreviation followed by the premises' assigned number; or

(2)A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm. PART 77—TUBERCULOSIS 3. The authority citation for part 77 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 4. Section 77.2 is amended by revising the definitions of *animal identification number (AIN), official eartag,* and *premises identification number (PIN)* to read as follows: § 77.2 Definitions. *Animal identification number (AIN)* . A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. *Official eartag* . An identification tag providing unique identification for individual animals. An official eartag which contains or displays an AIN with an 840 prefix must bear the U.S. shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal. Official eartags must adhere to one of the following numbering systems:

(1)National Uniform Eartagging System.

(2)Animal identification number (AIN).

(4)Any other numbering system approved by the Administrator for the identification of animals in commerce. *Premises identification number (PIN)* . A nationally unique number assigned by a State, Tribal, and/or Federal animal health authority to a premises that is, in the judgment of the State, Tribal, and/or Federal animal health authority, a geographically distinct location from other premises. The premises identification number is associated with an address, geospatial coordinates, and/or other location descriptors which provide a verifiably unique location. The premises identification number may be used in conjunction with a producer's own livestock production numbering system to provide a unique identification number for an animal. The premises identification number may consist of:

(1)The State's two-letter postal abbreviation followed by the premises' assigned number; or

(2)A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm. PART 78—BRUCELLOSIS 5. The authority citation for part 78 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 6. Section 78.1 is amended by revising the definitions of *animal identification number (AIN)* and *official eartag* to read as follows: § 78.1 Definitions. *Animal identification number (AIN)* . A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. *Official eartag* . An identification tag providing unique identification for individual animals. An official eartag which contains or displays an AIN with an 840 prefix must bear the U.S. shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal. Official eartags must adhere to one of the following numbering systems:

(a)National Uniform Eartagging System.

(b)Animal identification number (AIN).

(c)Premises-based number system. The premises-based number system combines an official premises identification number (PIN), as defined in § 71.1 of this chapter, with a producer's livestock production numbering system to provide a unique identification number. The PIN and the production number must both appear on the official tag.

(d)Any other numbering system approved by the Administrator for the identification of animals in commerce. PART 79—SCRAPIE IN SHEEP AND GOATS 7. The authority citation for part 79 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 8. Section 79.1 is amended as follows: a. In the definition of *premises identification* , by removing the words “number, as” and adding the words “number (PIN), as” in their place. b. By revising the definitions of *official eartag* and *premises identification number (PIN)* and adding a definition of *animal identification number (AIN)* to read as set forth below. § 79.1 Definitions. *Animal identification number (AIN)* . A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. *Official eartag* . An identification tag providing unique identification for individual animals. An official eartag which contains or displays an AIN with an 840 prefix must bear the U.S. shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal. Official eartags must adhere to one of the following numbering systems:

(1)National Uniform Eartagging System.

(2)Animal identification number (AIN).

(1)The State's two-letter postal abbreviation followed by the premises' assigned number; or

(2)A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm. PART 80—JOHNE'S DISEASE IN DOMESTIC ANIMALS 9. The authority citation for part 80 continues to read as follows: Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. 10. Section 80.1 is amended by revising the definitions of *animal identification number* *(AIN), official eartag,* and *premises identification number (PIN)* to read as follows: § 80.1 Definitions. *Animal identification number (AIN)* . A numbering system for the official identification of individual animals in the United States providing a nationally unique identification number for each animal. The AIN contains 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording. *Official eartag* . An identification tag providing unique identification for individual animals. An official eartag which contains or displays an AIN with an 840 prefix must bear the U.S. shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users, subject to the approval of the Administrator. The official eartag must be tamper-resistant and have a high retention rate in the animal. Official eartags must adhere to one of the following numbering systems:

(1)National Uniform Eartagging System.

(2)Animal identification number (AIN).

(1)The State's two-letter postal abbreviation followed by the premises' assigned number; or

(2)A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm. Done in Washington, DC, this 12th day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-13932 Filed 7-17-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27154; Directorate Identifier 2006-NM-139-AD; Amendment 39-15127; AD 2007-14-05] RIN 2120-AA64 Airworthiness Directives; Airbus Model A310 and A300-600 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for all Airbus Model A310 and A300-600 series airplanes. This AD requires revising the Airworthiness Limitations section of the Instructions for Continued Airworthiness by incorporating new and revised certification maintenance requirements. This AD results from the manufacturer determining that additional and revised certification maintenance requirements are necessary in order to ensure continued operational safety of the affected airplanes. We are issuing this AD to prevent safety-significant latent failures that would, in combination with one or more other specific failures or events, result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. DATES: This AD becomes effective August 22, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of August 22, 2007. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1622; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the airworthiness directive

(AD)docket on the Internet at *http://dms.dot.gov* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone

(800)647-5527) is located on the ground floor of the West Building at the street address stated in the ADDRESSES section. Discussion The FAA issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to all Airbus Model A310 airplanes and Model A300-600 series airplanes. That NPRM was published in the **Federal Register** on February 6, 2007 (72 FR 5362). That NPRM proposed to require revising the Airworthiness Limitations section of the Instructions for Continued Airworthiness by incorporating new and revised certification maintenance requirements (CMRs). Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Request for Transition Period/Grace Period for Certain Maintenance Significant Item

(MSI)Tasks Airbus requests that we give a transition/grace period of approximately 2,000 flight hours (or twelve months) for the tasks specified in MSI 78.30.00 of the CMRs, “thrust reverser actuation and cowling for airplanes that have installed a third line of defense (TLOD).” Airbus states that the service bulletins that introduce the TLOD have been available since 2001. Airbus notes that this means that some airplanes might have exceeded the 7,000-flight-hour threshold for doing the MSI requirements and, per the NPRM, the actions specified in the MSI would be required for those airplanes within 3 months after the effective date of the AD. Based upon approximate annual utilization data, Airbus proposes a transition period of 2,000 flight hours or 12 months. We agree to add a transition/grace period for the MSI 78.30.00 tasks for the reasons Airbus stated. We have determined that providing this period for the tasks specified in MSI 78.30.00, as recommended by the manufacturer, will not adversely affect safety. We have added a new paragraph

(g)to this AD that gives a transition/grace period for MSI 78.30.00 tasks, and we have revised paragraph

(f)of this AD to refer to that new paragraph. Request To Allow for Adjustments of Two Star CMRs FedEx requests that the NPRM include a mechanism to allow for adjustments of two star CMRs in accordance with an operator's approved escalation practices or by an approved reliability program. FedEx states that the NPRM would require that operators request an alternative method of compliance

(AMOC)in order to escalate compliance times specified in the CMRs and this would increase the burden for operators. In addition, FedEx believes that any adjustments should be able to be granted by the FAA, and not the Direction Generale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, as specified in the CMRs. We partially agree with the commenter. As discussed in advisory circular AC 25-19, task intervals for two star CMRs may be adjusted using an operator's approved escalation practice or an approved reliability program. However, two star CMRs require an FAA-approved letter for any tasks to be changed or deleted. This AD allows adjustments to intervals as specified in Section 4 of the CMRs, “Handling of Certification Maintenance Requirements” and requires that the task may not be changed or deleted without prior approval from the aircraft certification office

(ACO)of the FAA. Therefore, an AMOC is required for changes to a task but not for adjustments of the task intervals. We agree that adjustments should be granted by the FAA. We have revised paragraph

(f)of this AD to clarify that “where the CMRs specify to contact the DGAC, operators are required to contact the FAA for such approvals.” Request To Allow Short-Term Extensions FedEx requests that we allow for exceptional short-term flight-hour or flight-cycle extensions for specific tasks. FedEx states that the CMRs specify these extensions are to be submitted to the DGAC for approval, but believes that these extensions should be granted by the FAA. We partially agree with the commenter's request. We already allow for short-term extensions as specified in the CMRs. The short-term extension mechanism is clearly stated in Section 5 of the CMRs, “Exceptional Short-Term Extensions.” It is further stated in Section 5, that short-term extensions up to the maximum values may be granted without consultation with the DGAC. Therefore, only extensions in excess of those defined in Section 5 require further FAA approval. In this case, operators will need to request an AMOC from the FAA. We have not revised this AD in this regard. However, as stated previously, we have revised paragraph

(f)of this AD to clarify that where the CMRs specify to contact the DGAC, the operators must contact the FAA. Request To Revise Model Designations Air Transport Association

(ATA)and UPS request that we revise the model designations in the NPRM. ATA notes that because we have called out all the Model A300-600 designations earlier in the NPRM, we should refer to only the Model A300-600 series aircrafts in paragraph

(f)of the NPRM. UPS points out that the model designations for the CMRs in paragraph

(f)of the NPRM need to be revised. We agree to revise the model designations. Since the NPRM was issued, the type certificate data sheet for the affected models has been revised. We have revised the applicability and model designations specified in the AD to identify model designations as published in the most recent type certificate data sheet for the affected models. Request for Clarification of Proposed Requirements FedEx requests that we clarify the proposed requirements. FedEx questions whether revision of an operator's approved maintenance program to include the latest CMR revision would be all that is required by the NPRM, or if individual CMR inspections would be deemed mandatory and therefore would require repetitive tracking. Concerning FedEx's request for clarification, we infer that the commenter is wondering if, after revising its copy of the Airworthiness Limitation section, there are other required actions such as ensuring that the operator's maintenance program is updated to incorporate the actions specified in the revised Airworthiness Limitations. Ensuring that one's maintenance program and the actions of its maintenance personnel are in accordance with the Airworthiness Limitations is required but not by the AD. Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies that no person may operate an aircraft for which airworthiness limitations have been issued unless those limitations have been complied with. Therefore, there is no need to further expand the requirements of the AD beyond that which was proposed because section 91.403(c) already imposes the appropriate required action after the airworthiness limitations are revised. We have not revised this AD in this regard. Request To Reference Later Approved Revisions FedEx and UPS request that we refer to later approved revisions of the CMRs. FedEx notes that the CMRs seem to be revised regularly. We cannot use the phrase “or later FAA-approved revisions” in an AD when referring to the service document because doing so violates Office of the **Federal Register**

(OFR)regulations for approval of materials “incorporated by reference” in rules. In general terms, we are required by these OFR regulations to either publish the service document contents as part of the actual AD language, or submit the service document to the OFR for approval as “referenced” material—in which case we may only refer to such material in the text of an AD. Since later approved revisions do not exist when the rule is issued, they cannot be submitted to the OFR for approval. To allow operators to use later revisions of the referenced document (issued after publication of the AD), either we must revise the AD to refer to specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with this AD under the provisions of paragraph

(h)of this AD. We have not revised this AD in this regard. Request To Revise the Instructions in Paragraph

(f)of the NPRM UPS requests that we revise the instructions in paragraph

(f)of the NPRM. UPS notes that paragraph

(f)specifies to revise the Airworthiness Limitations Section

(ALS)of the Instructions for Continued Airworthiness. UPS states that this document is controlled by the manufacturer and cannot be revised by the operator. UPS concludes that operators cannot comply with this proposed requirement and suggests rewording the requirement to state, “revise the Operators Maintenance Program.” We do not agree. The intent is to have all airworthiness limitations, regardless whether imposed by original type certification or by later AD, located in one immediately recognizable document. In 1980, the FAA identified the Airworthiness Limitations section of the Instructions for Continued Airworthiness as the appropriate document. We consider that not having all airworthiness limitations in one document could lead to confusion as to what is or is not a mandatory maintenance action as identified in Federal Aviation Regulation, part 25, Appendix H, section H25.4. This is the basis of our requirement to have each operator maintain a current copy of the Airworthiness Limitations section. Each operator is provided with a copy of the Airworthiness Limitations section of the Instructions for Continued Airworthiness and it is the operator's copy that this AD requires to be revised to incorporate the latest revisions provided by the manufacturer. We have not revised this AD in this regard. Clarification of AMOC Paragraph We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this AD. Estimated Costs Action Work hours Average labor rate per hour Cost per airplane Number of U.S.- registered airplanes Fleet cost Revision of maintenance program 1 $80 $80 203 $16,240 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

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

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

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-14-05 Airbus:** Amendment 39-15127. Docket No. FAA-2007-27154; Directorate Identifier 2006-NM-139-AD. Effective Date

(a)This AD becomes effective August 22, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to all Airbus Model A310 series airplanes and Model A300-600 series airplanes, certificated in any category. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph

(h)of this AD. The request should include a description of changes to the required inspections that will ensure the continued damage tolerance of the affected structure. The FAA has provided guidance for this determination in Advisory Circular

(AC)25.1529-1. Unsafe Condition

(d)This AD results from the manufacturer determining that additional and revised certification maintenance requirements are necessary in order to ensure continued operational safety of the affected airplanes. We are issuing this AD to prevent safety-significant latent failures that would, in combination with one or more other specific failures or events, result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Revise the Airworthiness Limitations Section of the Instructions for Continued Airworthiness

(f)Within three months after the effective date of this AD, revise the Airworthiness Limitations section of the Instructions for Continued Airworthiness by incorporating Airbus A300-600 Certification Maintenance Requirements

(CMRs)AI/ST5/829/85, Issue 12, dated February 2005 (for Model A300-600 series airplanes); or Airbus A310 CMR AI/ST5/849/85, Issue 12, dated February 2005 (for Model A310 series airplanes); as applicable. Accomplish the actions specified in the applicable CMRs at the intervals specified in the applicable CMRs, except as provided by paragraph

(g)of this AD. Where the CMRs specify to contact the Direction Générale de l'Aviation Civile (DGAC), operators are required to contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, for such approvals. The actions must be accomplished in accordance with the applicable CMRs. Transition/Grace Period for Maintenance Significant Item

(MSI)78.30.00 Tasks

(g)For tasks identified in MSI 78.30.00, “Thrust Reverser Actuation and Cowling,” of Section 2, “CMR ‘Two Star’ Tasks,” of Airbus A300-600 CMR AI/ST5/829/85, Issue 12, dated February 2005; and Airbus A310 CMR AI/ST5/849/85, Issue 12, dated February 2005: The initial compliance time is within 2,000 flight cycles or 12 months after the effective date of this AD, whichever occurs later. Thereafter, actions identified in MSI 78.30.00 must be accomplished within the repetitive interval specified in the applicable CMRs. Where the CMRs specify to contact the DGAC, operators are required to contact the Manager, International Branch, ANM-116, for such approvals. The actions must be accomplished in accordance with the applicable CMRs. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information

(i)French airworthiness directive F-2005-123, dated July 20, 2005, also addresses the subject of this AD. Material Incorporated by Reference

(j)You must use Airbus A300-600 Certification Maintenance Requirements AI/ST5/829/85, Issue 12, dated February 2005; or Airbus A310 Certification Maintenance Requirements AI/ST5/849/85, Issue 12, dated February 2005; as applicable; to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Renton, Washington, on June 26, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-13322 Filed 7-17-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27861 Directorate Identifier 2007-CE-035-AD; Amendment 39-15130; AD 2007-15-01] RIN 2120-AA64 Airworthiness Directives; British Aerospace Regional Aircraft Jetstream HP.137 Jetstream Mk.1, Jetstream Series 200, Jetstream Series 3101, and Jetstream Model 3201 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final Rule. SUMMARY: We are adopting a new airworthiness directive

(AD)for the products listed above. This AD results from mandatory continuing airworthiness information

(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: In-service reports have been received by BAE of failed bolts fitted to frame 199 wing spigot post assembly. If left uncorrected failure of these bolts will severely compromise the structural integrity of the wing to fuselage attachment. Failure of which would lead to loss of the aircraft. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective August 22, 2007. On August 22, 2007, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Taylor Martin, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4138; facsimile:

(816)329-4090. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on May 18, 2007 (72 FR 28005). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: In-service reports have been received by BAE of failed bolts fitted to frame 199 wing spigot post assembly. If left uncorrected failure of these bolts will severely compromise the structural integrity of the wing to fuselage attachment. Failure of which would lead to loss of the aircraft. To address these concerns, BAE issued SB 57-JA020740 original issue in February 2003 mandated by CAA AD 006-02-2003. Recently received additional information has caused BAE to raise the Service Bulletin to revision 2. Revision 2 of the SB introduces various changes. One is substantive, it relates to the need to check for correct washer installation. Incorrect installation could lead to fretting and fatigue crack initiation in the fitting followed by failure or bending loads in the bolt leading to failure of the affected bolts. If left uncorrected failure of these bolts or a wing fitting will severely compromise the structural integrity of the wing to fuselage attachment. Failure of which would lead to loss of the aircraft. This substantive change to the service bulletin necessitates the raising of this superseding AD. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 195 products of U.S. registry. We also estimate that it will take about 50 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $100 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. We estimate the cost of this AD to the U.S. operators to be $799,500, or $4,100 per product. In addition, we estimate that any necessary follow-on actions will take about 25 work-hours and require parts costing $100, for a cost of $2,100 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:

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

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

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2007-15-01 British Aerospace Regional Aircraft:** Amendment 39-15130; Docket No. FAA-2007-27861; Directorate Identifier 2007-CE-035-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective August 22, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Jetstream HP.137 Jetstream Mk.1, Jetstream Series 200, Jetstream Series 3101, and Jetstream Model 3201 airplanes, all serial numbers, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 57: Wings. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: In-service reports have been received by BAE of failed bolts fitted to frame 199 wing spigot post assembly. If left uncorrected failure of these bolts will severely compromise the structural integrity of the wing to fuselage attachment. Failure of which would lead to loss of the aircraft. To address these concerns, BAE issued SB 57-JA020740 original issue in February 2003 mandated by CAA AD 006-02-2003. Recently received additional information has caused BAE to raise the Service Bulletin to revision 2. Revision 2 of the SB introduces various changes. One is substantive, it relates to the need to check for correct washer installation. Incorrect installation could lead to fretting and fatigue crack initiation in the fitting followed by failure or bending loads in the bolt leading to failure of the affected bolts. If left uncorrected failure of these bolts or a wing fitting will severely compromise the structural integrity of the wing to fuselage attachment. Failure of which would lead to loss of the aircraft. This substantive change to the service bulletin necessitates the raising of this superseding AD. Actions and Compliance

(f)Unless already done, do the following actions using British Aerospace Jetstream Series 3100 and 3200 Service Bulletin 57-JA020740, Revision 2, dated November 2, 2005.

(1)Inspect and torque check the bolts at frame 199 at the following compliance times:

(i)Initially within the next 90 days after August 22, 2007 (the effective date of this AD) or within the next 100 hours time-in-service

(TIS)after August 22, 2007 (the effective date of this AD), whichever occurs first; and

(ii)Repetitively thereafter at intervals not to exceed 4,000 hours TIS.

(2)If any discrepancies are found in any of the inspections required in paragraph (f)(1) of this AD, before further flight, correct any discrepancies. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: We added repetitive inspection requirements in this AD to coincide with the service bulletin. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)Alternative Methods of Compliance (AMOCs): The Manager, Standards Staff, FAA, ATTN: Taylor Martin, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4138; fax:

(816)329-4090; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to European Aviation Safety Agency

(EASA)AD No: G-2006-0003, dated February 2, 2006; and BAE SYSTEMS Jetstream Series 3100 and 3200 Service Bulletin 57-JA020740, Revision 2, dated November 2, 2005, for related information. Material Incorporated by Reference You must use BAE SYSTEMS Jetstream Series 3100 and 3200 Service Bulletin 57-JA020740, Revision 2, dated November 2, 2005, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)For service information identified in this AD, contact BAE Systems, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland.

(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Kansas City, Missouri, on July 9, 2007. Sandra J. Campbell, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-13793 Filed 7-17-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection 19 CFR Part 123 [CBP Dec. 07-53] Advance Electronic Presentation of Cargo Information for Truck Carriers Required To Be Transmitted Through ACE Truck Manifest at Ports in the States of Maine and Minnesota AGENCY: Customs and Border Protection, Department of Homeland Security. ACTION: Final rule. SUMMARY: Pursuant to section 343(a) of the Trade Act of 2002 and implementing regulations, truck carriers and other eligible parties are required to transmit advance electronic truck cargo information to Customs and Border Protection

(CBP)through a CBP-approved electronic data interchange. In a previous document, CBP designated the Automated Commercial Environment

(ACE)Truck Manifest System as the approved interchange and announced that the requirement that advance electronic cargo information be transmitted through ACE would be phased in by groups of ports of entry. This document announces that at all land border ports in Maine and Minnesota truck carriers will be required to file electronic manifests through the ACE Truck Manifest System. DATES: Trucks entering the United States through land border ports of entry in the states of Maine and Minnesota will be required to transmit the advance information through the ACE Truck Manifest system effective October 16, 2007. FOR FURTHER INFORMATION CONTACT: Mr. James Swanson, via e-mail at *james.d.swanson@dhs.gov.* SUPPLEMENTARY INFORMATION: Background Section 343(a) of the Trade Act of 2002, as amended (the Act; 19 U.S.C. 2071 note), required that CBP promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP-approved electronic data interchange

(EDI)system before the cargo is brought into or departs the United States by any mode of commercial transportation (sea, air, rail or truck). The cargo information required is that which is reasonably necessary to enable high-risk shipments to be identified for purposes of ensuring cargo safety and security and preventing smuggling pursuant to the laws enforced and administered by CBP. On December 5, 2003, CBP published in the **Federal Register** (68 FR 68140) a final rule to effectuate the provisions of the Act. In particular, a new section 123.92 (19 CFR 123.92) was added to the regulations to implement the inbound truck cargo provisions. Section 123.92 describes the general requirement that, in the case of any inbound truck required to report its arrival under section 123.1(b), if the truck will have commercial cargo aboard, CBP must electronically receive certain information regarding that cargo through a CBP-approved EDI system no later than 1 hour prior to the carrier's reaching the first port of arrival in the United States. For truck carriers arriving with shipments qualified for clearance under the FAST (Free and Secure Trade) program, section 123.92 provides that CBP must electronically receive such cargo information through the CBP-approved EDI system no later than 30 minutes prior to the carrier's reaching the first port of arrival in the United States. ACE Truck Manifest Test On September 13, 2004, CBP published a notice in the **Federal Register** (69 FR 55167) announcing a test allowing participating Truck Carrier Accounts to transmit electronic manifest data for inbound cargo through ACE, with any such transmissions automatically complying with advance cargo information requirements as provided in section 343(a) of the Trade Act of 2002. Truck Carrier Accounts participating in the test were given the ability to electronically transmit the truck manifest data and obtain release of their cargo, crew, conveyances, and equipment via the ACE Portal or electronic data interchange messaging. A series of notices announced additional deployments of the test, with deployment sites being phased in as clusters. Clusters were announced in the following notices published in the **Federal Register** : 70 FR 30964 (May 31, 2005); 70 FR 43892 (July 29, 2005); 70 FR 60096 (October 14, 2005); 71 FR (January 24, 2006); 71 FR 23941 (April 25, 2006); 71 FR 42103 (July 25, 2006), 71 FR 77404 (December 26, 2006); 72 FR 7058 (February 14, 2007); 72 FR 14127 (March 26, 2007); and 72 FR 32135 (June 11, 2007). CBP has now tested ACE at all of the planned ports, with the exception of Alaska. CBP expects to announce the test of the ACE truck manifest system at the land border ports in Alaska in a future notice in the **Federal Register** . Designation of ACE Truck Manifest System as the Approved Data Interchange System In a notice published October 27, 2006 (71 FR 62922), CBP designated the Automated Commercial Environment

(ACE)Truck Manifest System as the approved EDI for the transmission of required data and announced that the requirement that advance electronic cargo information be transmitted through ACE would be phased in by groups of ports of entry. ACE will be phased in as the required transmission system at some ports even while it is still being tested at other ports. However, the use of ACE to transmit advance electronic truck cargo information will not be required in any port in which CBP has not first conducted the test. The October 27, 2006, document identified all land border ports in the states of Washington and Arizona and the ports of Pembina, Neche, Walhalla, Maida, Hannah, Sarles, and Hansboro in North Dakota as the first group of ports where use of the ACE Truck Manifest System is mandated. Subsequently, CBP announced on January 19, 2007 (72 FR 2435) that, after 90 days notice, the use of the ACE Truck Manifest System will be mandatory at all land border ports in the states of California, Texas and New Mexico. On February 23, 2007 (72 FR 8109), CBP announced that, after 90 days notice, the ACE Truck Manifest System will be mandatory at all land border ports in Michigan and New York. On April 13, 2007 (72 FR 18574), CBP announced that, after 90 days notice, the ACE Truck Manifest System will be mandatory at all land border ports in Vermont and New Hampshire, and at the land border ports in North Dakota at which ACE had not been required by any previous notice. On May 8, 2007 (72 FR 25965), CBP announced that, again after 90 days notice, the ACE Truck Manifest System will be mandatory at all land border ports in the states of Idaho and Montana, as well. ACE Mandated at Land Border Ports of Entry in Maine and Minnesota Applicable regulations (19 CFR 123.92(e)) require CBP, 90 days prior to mandating advance electronic information at a port of entry, to publish notice in the **Federal Register** informing affected carriers that the EDI system is in place and fully operational. Accordingly, CBP is announcing in this document that, effective 90 days from the date of publication of this notice, truck carriers entering the United States through land border ports of entry in the states of Maine and Minnesota will be required to present advance electronic cargo information regarding truck cargo through the ACE Truck Manifest System. Although other systems that have been deemed acceptable by CBP for transmitting advance truck manifest data will continue to operate and may still be used in the normal course of business for purposes other than transmitting advance truck manifest data, use of systems other than ACE will no longer satisfy advance electronic cargo information requirements at the ports of entry announced in this document as of October 16, 2007. Compliance Sequence CBP has now either required the use of ACE for the transmission of advance electronic truck cargo information, or provided 90 days notice that it intends to do so, at every land border port in which CBP originally planned to require the use of ACE, with the exception of the land border ports in the state of Alaska. Following the testing of the ACE truck manifest system at the land border ports in Alaska, CBP expects to announce in a **Federal Register** notice that it is providing 90 days' notice before ACE will be the mandatory transmission system for those ports as well. Dated: July 12, 2007. Deborah J. Spero, Acting Commissioner, Customs and Border Protection. [FR Doc. E7-13848 Filed 7-17-07; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9341] RIN 1545-BE87 Treatment of Excess Loss Accounts AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. SUMMARY: This document contains final regulations under section 1502. Section 1.1502-19(d) governs basis determinations and adjustments of subsidiary stock in certain transactions involving members of a consolidated group. Section 1.1502-80(c) governs the determination of when subsidiary stock is treated as worthless under section 165. These final regulations affect affiliated groups of corporations filing consolidated returns. DATES: *Effective Date:* These final regulations are effective on July 18, 2007. *Applicability Dates:* Section 1.1502-19(d) applies to transactions occurring on or after July 18, 2007. Section 1.1502-80(c) applies to taxable years for which the original consolidated Federal income tax return is due (without extensions) after July 18, 2007. FOR FURTHER INFORMATION CONTACT: For questions regarding § 1.1502-19(d), contact Theresa M. Kolish,

(202)622-7530 (not a toll-free number). For questions regarding § 1.1502-80(c), contact Theresa Abell,

(202)622-7700 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background On January 26, 2006, the IRS and Treasury Department published a notice of proposed rulemaking (REG-138879-05, 71 FR 4319) by cross-reference to a temporary regulation under § 1.1502-19 (TD 9244, 71 FR 4264). Prior to the publication of the proposed and temporary regulations, the direction of a transaction determined whether an excess loss account would be reduced or eliminated. For example, if P had owned all the stock of S with an excess loss account of $100 and all of the stock of T with a basis of $150, and T had merged into S in a reorganization described in section 368(a)(1)(D) in which P received additional shares of S stock, under § 1.1502-19(d), P's excess loss account in its original shares of S stock was first eliminated. Therefore, P's original S shares would have had an aggregate basis of $0 and P's new S shares would have had an aggregate basis of $50. However, if S instead had merged into T in a reorganization described in section 368(a)(1)(D) in which P received additional shares of T stock, § 1.1502-19(d) would not have applied because P did not already have T shares with an excess loss account. Therefore, P's original T shares would have had a basis of $150 and P's new T shares would have had an excess loss account of $100. The IRS and Treasury Department found the electivity of the rule based on the direction of the transaction to be undesirable. Accordingly, the IRS and Treasury Department added § 1.1502-19T(d), which provides that, if a member would otherwise determine shares of a class of S's stock (a new share) to have an excess loss account and such member owns one or more other shares of the same class of S's stock, the basis of such other shares is allocated to eliminate and equalize any excess loss account that would otherwise be in the new shares. No public hearing regarding the proposed regulation was requested or held. However, a few informal comments regarding the proposed and temporary regulations were received. In particular, the commentators noted that § 1.1502-19T(d) would appear to apply in the earlier example if P had excess loss accounts in its shares of both S and T. For example, assume that P owned S and T (which were of equal value), P had a $50 excess loss account in its S stock and a $100 excess loss account in its T stock, and T merged into S in a reorganization described in section 368(a)(1)(D) in which additional shares were issued. Under § 1.1502-19T(d), the excess loss accounts in the two blocks of S stock would be equalized so that P would have a $75 excess loss account in each block. The commentators asked whether this outcome was intended. The IRS and Treasury Department believe that the excess loss accounts in this example should be equalized and affirm that § 1.1502-19 does apply under the facts of presented. This application eliminates the disparity between excess loss accounts in order to better reflect P's investment in its subsidiary stock. The proposed regulation under § 1.1502-19 is adopted by this Treasury decision and the temporary regulation is removed. Additionally, on January 23, 2007, the IRS and Treasury Department published a notice of proposed rulemaking (REG-157711-02, 72 FR 2964) under § 1.1502-80(c) regarding when the stock of a member is treated as worthless under section 165. The proposed regulation is adopted without substantive modification by this Treasury Decision, and is applicable to tax years for which the original consolidated Federal income tax return is due (without extensions) after July 18, 2007. Section 1.1502-80T is removed. Consistent with the prior final regulations, these regulations provide that subsidiary stock is not treated as worthless before the earlier of the time that the subsidiary ceases to be a member of the group or the time that the stock of the subsidiary is worthless within the meaning of § 1.1502-19(c)(1)(iii). Section 1.1502-19(c)(1)(iii) identifies three separate events that cause a share of subsidiary stock to be treated as worthless and therefore disposed of for purposes of taking into account an excess loss account in the share. Section 1.1502-19(c)(1)(iii)(A) applies when the subsidiary disposes of substantially all of its assets, and the deferral of any worthless securities deduction until that time implements single-entity principles. While an event identified in either § 1.1502-19(c)(1)(iii)(B) or

(C)(generally dealing with debt cancellations) will likely occur in connection with an event identified in § 1.1502-19(c)(1)(iii)(A), either may occur independently. In light of the single-entity purpose of the regulations, the IRS and Treasury Department are requesting comments regarding whether these regulations should refer only to the time stock is treated as worthless within the meaning of § 1.1502-19(c)(1)(iii)(A). Special Analyses It has been determined that this Treasury Decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. Pursuant to 5 U.S.C. 553(d)(3) it has been determined that that a delayed effective date is unnecessary because this rule finalizes currently effective temporary rules regarding the treatment of excess loss accounts without substantive change. It is hereby certified that these final regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these regulations will primarily affect affiliated groups of corporations that have elected to file consolidated returns, which tend to be larger businesses. Moreover, the number of taxpayers affected and the average burden are minimal. Accordingly, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notices of proposed rulemaking preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Drafting Information The principal author of § 1.1502-19 is Theresa M. Kolish of the Office of the Associate Chief Counsel (Corporate), IRS. The principal author of § 1.1502-80(c) is Theresa Abell of the Office of the Associate Chief Counsel (Corporate), IRS. However, other personnel from the IRS and the Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 is amended by removing the entries for §§ 1.1502-19T and 1.1502-80T to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.1502-19 and § 1.1502-80 are also issued under 26 U.S.C. 1502. * * * **Par. 2.** Section 1.1502-19 is amended by revising paragraphs (d),

(g)Example 2, and (h)(2)(iv) to read as follows: § 1.1502-19. Excess loss accounts.

(d)*Special allocation of basis in connection with an adjustment or determination* —(1) *Excess loss account in original shares.* If a member has an excess loss account in shares of a class of S's stock at the time of a basis adjustment or determination under the Internal Revenue Code with respect to shares of the same class of S's stock owned by the member, the adjustment or determination is allocated first to equalize and eliminate that member's excess loss account. See § 1.1502-32(c) for similar allocations of investment adjustments to prevent or eliminate excess loss accounts.

(2)*Excess loss account in new S shares.* If a member would otherwise determine shares of a class of S's stock (new shares) to have an excess loss account and such member owns one or more other shares of the same class of S's stock, the basis of such other shares is allocated to eliminate and equalize any excess loss account that would otherwise be in the new shares.

(g)* * * Example 2. Basis determinations under the Internal Revenue Code in intercompany reorganizations—transfer of shares without an excess loss account.

(i)*Facts* . P owns all of the sole class of stock of each of S and T. P has 150 shares of S stock that it acquired on Date 1. Each S share has a $1 basis and a fair market value of $1. P has 100 shares of T stock that it acquired on Date 2. Each T share has a $1.20 excess loss account and a fair market value of $1. P transfers S's stock to T without receiving additional T stock. The transfer is an exchange described in both section 351 and section 354.

(ii)*Analysis* . Under sections 351 and 354, P does not recognize gain in connection with the transfer. Under § 1.358-2(a)(2)(iii), P is deemed to receive 150 shares of T stock of the same class. Without regard to the application of paragraph

(d)of this section, under section 358 and § 1.358-2(a)(2)(i), P would have a $1 basis in each such share. However, because the basis of the additional shares of T stock will be determined when P has an excess loss account in its original shares of T stock, under paragraph (d)(1) of this section, the basis that P would otherwise have in such additional shares will eliminate the excess loss account in P's original shares of T stock such that each original share of T stock will have a basis of $0 and each share of T stock deemed received will have a basis of $0.20. Then, under § 1.358-2(a)(2)(iii), the T stock is deemed to be recapitalized in a reorganization under section 368(a)(1)(E) in which P receives 100 shares of T stock (those shares P actually owns immediately after the transfer) in exchange for those 100 shares of T stock that P held immediately prior to the transfer and those 150 shares of T stock P is deemed to receive in the transfer. Under § 1.358-2(a)(2)(i), immediately after the transfer, P holds 100 shares of T stock, 60 of which take a basis of $0.50 each and 40 of which take a basis of $0 each. In addition, T takes a $1 basis in each share of S stock under section 362. (If P had actually received an additional 150 shares of T stock of the same class, paragraph (d)(1) of this section would apply to shift basis from such additional T shares to P's original T shares because the basis of the additional T stock would be determined when P had an excess loss account in its original T shares. P would have a basis of $0 in each of the original T shares and a basis of $0.20 in each of the additional T shares.)

(iii)*Transfer of shares with an excess loss account* . The facts are the same as in paragraph

(i)of this *Example 2* , except that P transfers T's stock to S without receiving additional S stock. The transfer is an exchange described in both section 351 and section 354. Under paragraph

(c)of this section, P's transfer is treated as a disposition of T's stock. Under sections 351 and 354 and paragraph (b)(2) of this section, P does not recognize gain from the disposition. Under § 1.358-2(a)(2)(iii), P is deemed to have received 100 shares of S stock of the same class. Without regard to the application of paragraph

(d)of this section, P would have a $1.20 excess loss account in each such share. However, because P will have an excess loss account in such shares and P owns other shares of S stock of the same class, under paragraph (d)(2) of this section, the excess loss account that P would otherwise have in such shares will decrease P's basis in its original shares of S's stock such that each such original share will have a basis of $0.20 and each share deemed received will have a basis of $0. Then, under § 1.358-2(a)(2)(iii), the S stock is deemed to be recapitalized in a reorganization under section 368(a)(1)(E) in which P receives 150 shares of S stock (those shares P actually owns immediately after the transfer) in exchange for those 150 shares of S stock that P held immediately prior to the transfer and those 100 shares of S stock that P is deemed to receive in connection with the transfer. Under § 1.358-2(a)(2)(i), immediately after the transfer, P holds 150 shares of S stock, 90 of which take a basis of $0.33 each and 60 of which take a basis of $0 each. In addition, S takes an excess loss account of $1.20 in each share of T stock under section 362. (If P had actually received 100 additional shares of S stock of the same class, paragraph (d)(2) of this section would apply to shift basis from P's original S stock because P would have otherwise had an excess loss account in such additional shares and P owned other shares of S stock of the same class. The excess loss account that P would have otherwise had in such additional shares would have decreased P's basis in its original shares of S's stock. P would have had a basis of $0.20 in each of the original shares and a basis of $0 in each of the additional shares.)

(iv)*Intercompany merger—shares with excess loss account retained.* The facts are the same as in paragraph

(i)of this *Example 2* , except that S merges into T in a reorganization described in section 368(a)(1)(A) (and in section 368(a)(1)(D)), and P receives 150 additional shares of T stock of the same class in the reorganization. Under section 354, P does not recognize gain. Without regard to the application of paragraph

(v)*Intercompany merger—shares with excess loss account surrendered* . The facts are the same as in paragraph

(i)of this *Example 2* , except that T merges into S in a reorganization described in section 368(a)(1)(A) (and in section 368(a)(1)(D)), and P receives 100 additional shares of S stock of the same class in the reorganization. Under section 354 and paragraph (b)(2) of this section, P does not recognize gain from the disposition. Without regard to the application of paragraph

(d)of this section, under section 358 and § 1.358-2(a)(2)(i), P would have a $1.20 excess loss account in each additional share of S stock received. However, because P would have an excess loss account in such shares and P owns other shares of S stock of the same class, under paragraph (d)(2) of this section, the excess loss account that P would otherwise have in such shares decreases P's basis in its original shares of S's stock such that each original share of S stock has a basis of $0.20 and each additional share of S stock has a basis of $0.

(h)* * *

(2)* * *

(iv)*Intercompany reorganizations* . Paragraphs

(d)and

(g)*Example 2* of this section apply to transactions occurring on or after July 18, 2007. For transactions occurring on or after January 23, 2006, and before July 18, 2007, see § 1.1502-19T as contained in 26 CFR part 1 in effect April 1, 2007. For transactions occurring before January 23, 2006, see § 1.1502-19 as contained in 26 CFR part 1 in effect April 1, 2005. § 1.1502-19T [Removed] **Par. 3.** Section 1.1502-19T is removed. **Par. 4.** Section 1.1502-80 is amended by revising paragraph

(c)to read as follows: § 1.1502-80 Applicability of other provisions of law.

(c)*Deferral of section 165* —(1) *General rule* . Subsidiary stock is not treated as worthless under section 165 until immediately before the earlier of the time—

(i)The stock is worthless within the meaning of § 1.1502-19(c)(1)(iii); or

(ii)The subsidiary for any reason ceases to be a member of the group.

(2)*Cross reference* . See §§ 1.337(d)-2 and 1.1502-35 for additional rules relating to loss on subsidiary stock.

(3)*Effective/applicability date* . This paragraph

(c)applies to taxable years for which the original consolidated Federal income tax return is due (without extensions) after July 18, 2007. However, taxpayers may apply this paragraph

(c)to taxable years beginning on or after January 1, 1995. § 1.1502-80T [Removed] **Par. 5.** Section 1.1502-80T is removed. Kevin M. Brown, Deputy Commissioner for Services and Enforcement. Approved: July 10, 2007. Eric Solomon, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E7-13839 Filed 7-17-07; 8:45 am] BILLING CODE 4830-01-P CENTRAL INTELLIGENCE AGENCY 32 CFR Part 1900 FOIA Processing Fees AGENCY: Central Intelligence Agency. ACTION: Final rule. SUMMARY: On January 8, 2007, the Central Intelligence Agency submitted a proposed rule for public comment on Freedom of Information Act processing fees to the **Federal Register** . The CIA has reviewed and carefully considered all of the comments that were submitted in response to our proposal. As a result of that review, the CIA hereby issues its final rule on FOIA processing fees. EFFECTIVE DATE: July 18, 2007. FOR FURTHER INFORMATION CONTACT: Scott A. Koch, Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505 or by telephone, 703-613-1287. SUPPLEMENTARY INFORMATION: In the January 8, 2007 edition of the **Federal Register** , the CIA published a proposed rule which reflected a zero-based review of its public FOIA regulations on processing fees. The proposed rule was an expansive attempt to streamline our administrative approach in order to improve our processing of FOIA requests. The proposed system contained a number of innovative features to make this new approach workable. The CIA received comments that supported some aspect of the proposed rule, while also receiving comments which were very critical of other aspects of this approach. After a review and consideration of all of the comments, it was clear that there was no way to reconcile the positive and negative comments into a refinement of our approach that was workable. We concluded that if any features of the proposed system were dropped, the advantages would not outweigh the disadvantages of adopting this system. Since there was no support to proceed with the proposed rule as originally drafted, rather than implementing the sweeping changes set forth in the proposed rule, we have a more modest change by simply adopting the definition of “news media” contained in the March 27, 1987, Office of Management and Budget FOIA Guidelines. Although, the CIA remains confident in the adequacy and sufficiency of its previous interpretation of “news media” fee status, it has concluded that it is preferable to avoid sterile and unproductive technical litigation and the associated diversion of resources from more productive pursuits that that entails. List of Subjects in 32 CFR Part 1900 Classified information, Freedom of Information. As stated in the preamble, the CIA is amending 32 CFR part 1900 as follows: PART 1900—PUBLIC ACCESS TO CIA RECORDS UNDER THE FREEDOM OF INFORMATION ACT

(FOIA)1. The authority citation for part 1900 continues to read as follows: Authority: The Freedom of Information Act (FOIA), as amended (5 U.S.C. 552); the CIA Information Act of 1984 (50 U.S.C. 431); sec. 102 of the National Security Act of 1947, as amended (50 U.S.C. 403); and sec. 6 of the Central Intelligence Agency Act of 1949, as amended (50 U.S.C. 403(g)). 2. In § 1900.02, revise paragraph (h)(3) to read as follows: § 1900.02 Definitions.

(h)* * *

(3)*Representative of the News Media* refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of “freelance” journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but agencies may also look to the past publication record of a requestor in making this determination: Dated: July 9, 2007. Edmund Cohen, Chief of Information Management Services. [FR Doc. E7-13931 Filed 7-17-07; 8:45 am] BILLING CODE 6310-02-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-055] RIN 1625-AA00 Safety Zone; Oswego Harborfest 2007, Oswego, NY AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on Lake Ontario, Oswego, NY. This zone is intended to restrict vessels from a portion of Lake Ontario during the Oswego Harborfest Fireworks display on July 28, 2007. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays. DATES: This rule is effective from 9 p.m. to 10 p.m. on July 28, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket CGD09-07-055 and are available for inspection or copying at U.S. Coast Guard Sector Buffalo, 1 Fuhrmann Boulevard, Buffalo, NY 14203 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LT Tracy Wirth, U.S. Coast Guard Sector Buffalo;

(716)843-9573. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. Background and Purpose This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port Zones, and the explosive hazards of fireworks, the Captain of the Port Buffalo has determined that fireworks launches proximate to watercraft pose a significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks. Discussion of Rule A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Oswego Harborfest 2007 fireworks display. The fireworks display will occur between 9 p.m. and 10 p.m. on July 28, 2007. The safety zone for the fireworks will encompass all waters of Lake Ontario, Oswego, NY within a thousand foot radius of position 43°28′10″ N, 076° 31′04″W. [DATUM: NAD 83]. All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port Buffalo or the on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the safety zone's activation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of Lake Ontario, Oswego, NY between 9 p.m. and 10 p.m. on July 28, 2007. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only one hour for this event. Vessel traffic can safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Buffalo to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that this safety zone and fishing rights protection need not be incompatible. We have also determined that this Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have determined that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone therefore paragraph (34)(g) of the Instruction applies. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A new temporary section 165.T09-055 is added as follows: § 165.T09-055 Safety Zone; Oswego Harborfest 2007, Oswego, NY.

(a)*Location* . The following area is a temporary safety zone: All waters of Lake Ontario, Oswego, NY within a thousand foot radius of position 43°28′10″ N, 076°31′04″ W. [DATUM: NAD 83].

(b)*Enforcement period* . This regulation will be enforced from 9 p.m. to 10 p.m. on July 28, 2007.

(c)*Regulations* .

(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Buffalo, or his on-scene representative.

(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his on-scene representative.

(3)The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf. The on-scene representative of the Captain of the Port Buffalo will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.

(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

(5)Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo or his on-scene representative. Dated: July 3, 2007. S.J. Ferguson, Captain, U.S. Coast Guard, Captain of the Port Buffalo. [FR Doc. E7-13844 Filed 7-17-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2005-0050; FRL-8135-3] Alachlor, Chlorothalonil, Metribuzin; Denial of Objections AGENCY: Environmental Protection Agency (EPA). ACTION: Final order. SUMMARY: In this order, EPA denies objections to an order denying a petition requesting the modification or revocation of the pesticide tolerances for alachlor, chlorothalonil, and metribuzin, established under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA). The petition was filed on December 17, 2004, by the States of New York, California, Connecticut, and Massachusetts. The petitioners claimed that EPA had improperly removed an additional safety factor for the protection of infants and children from the risk assessments for these pesticide tolerances and that inclusion of this safety factor rendered the tolerances unsafe. EPA issued an order denying that petition, in part, on August 2, 2006. On October 2, 2006, New York, Connecticut, and Massachusetts filed objections to EPA's denial order. DATES: This final order is effective July 18, 2007. Supplemental objections, as described in Unit VII.C., may be submitted on or before September 17, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2005-0050. 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. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Public Docket, in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open 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: Terria Northern, Special Review and Reregistration Division, (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-305-7093; e-mail address: *northern.terria@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), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities that are potentially affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr.* You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr.* C. Can I File an Objection or Hearing Request? EPA is permitting supplemental objections to be filed under section 408(g) of the FFDCA concerning one issue described in Unit VII.C. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0050 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 17, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2005-0050, 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 204607-0001. • 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 Facility telephone number is

(703)305-5805. II. Introduction A. What Action Is the Agency Taking? In this order, EPA denies objections to an order denying a petition requesting the modification or revocation of the pesticide tolerances for alachlor, chlorothalonil, and metribuzin, among other pesticides, established under section 408 of the FFDCA. The petition was filed on December 17, 2004, by the States of New York, California, Connecticut, and Massachusetts (“the States”) (Ref. 1). The States contended that EPA is lacking data for each of the challenged pesticides on developmental neurotoxicity, endocrine effects, and/or cumulative effects of exposure to pesticides with a common mechanism of toxicity. This lack of data, the States argued, mandates that EPA must retain the statutory additional tenfold

(10X)safety factor for the protection of infants and children. The States further alleged that once the 10X safety factor is retained, the challenged tolerances no longer meet the safety standard under FFDCA section 408 and must be modified or revoked. On August 2, 2006, EPA denied the petition with regard to alachlor, chlorothalonil, and metribuzin. (71 FR 43906, August 2, 2006). As to alachlor and metribuzin, EPA denied the petition because the tolerances for these pesticides would continue to meet the safety standard even if the additional 10X safety factor sought by the States is applied. For chlorothalonil, EPA denied the petition on the ground that there is reliable data on chlorothalonil showing that the additional 10X safety factor is not needed to protect the safety of infants and children. The petition is still pending before EPA as to two other pesticides, methomyl and thiodicarb. On October 2, 2006, objections were filed to EPA's denial order by the States of New York, Connecticut, and Massachusetts (although California did not join the objections, for simplicity, the objectors are still referred to as the “States” in this order). (Ref. 2) The objections renew the States' claim that EPA has unlawfully removed the children's 10X safety factor and also argue that EPA has “manipulated” exposure assessments in making its safety determination. It is these objections that are addressed in today's order. B. What Is the Agency's Authority for taking this Action? The procedure for filing objections to tolerance actions and EPA's authority for acting on such objections is contained in section 408(g) of the FFDCA and regulations at 40 CFR part 178. (21 U.S.C. 346a(g)). III. Statutory and Regulatory Background A. Statutory Background 1. *In general* . EPA establishes maximum residue limits, or “tolerances,” for pesticide residues in food under section 408 of the FFDCA. (21 U.S.C. 346a). Without such a tolerance or an exemption from the requirement of a tolerance, a food containing a pesticide residue is “adulterated” under section 402 of the FFDCA and may not be legally moved in interstate commerce. (21 U.S.C. 331, 342). Monitoring and enforcement of pesticide tolerances are carried out by the U.S. Food and Drug Administration and the U.S. Department of Agriculture. Section 408 was substantially rewritten by the Food Quality Protection Act of 1996 (“FQPA”), which added the provisions discussed below establishing a detailed safety standard for pesticides, additional protections for infants and children, tolerance reassessment requirements, and the estrogenic substances screening program. EPA also regulates pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), (7 U.S.C. 136 et seq.). While the FFDCA authorizes the establishment of legal limits for pesticide residues in food, FIFRA requires the approval of pesticides prior to their sale and distribution, (7 U.S.C. 136a(a)), and establishes a registration regime for regulating the use of pesticides. FIFRA regulates pesticide use in conjunction with its registration scheme by requiring EPA review and approval of pesticide labels and specifying that use of a pesticide inconsistent with its label is a violation of Federal law. (7 U.S.C. 136j(a)(2)(G)). In the FQPA, Congress integrated action under the two statutes by requiring that the safety standard under the FFDCA be used as a criterion in FIFRA registration actions as to pesticide uses which result in dietary risk from residues in or on food, (7 U.S.C. 136(bb)), and directing that EPA coordinate, to the extent practicable, revocations of tolerances with pesticide cancellations under FIFRA. (21 U.S.C. 346a(l)(1)). 2. *Safety standard for pesticide tolerances* . A pesticide tolerance may only be promulgated by EPA if the tolerance is “safe.” (21 U.S.C. 346a(b)(2)(A)(i)). “Safe” is defined by the statute to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” (21 U.S.C. 346a(b)(2)(A)(ii)). Section 408(b)(2)(D) directs EPA, in making a safety determination, to: consider, among other relevant factors- . . . .

(v)Available information concerning the cumulative effects of such residues and other substances that have a common mechanism of toxicity; . . .

(vi)Available information concerning the aggregate exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide chemical residue and to other related substances, including dietary exposure under the tolerance and all other tolerances in effect for the pesticide chemical residue, and exposure from other non-occupational sources.. . . .

(viii)Such information as the Administrator may require on whether the pesticide chemical may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen or other endocrine effects. . . . (21 U.S.C. 346a(b)(2)(D)(v),

(vi)and (viii)). In its first denial order, EPA explained in detail the risk assessment process it follows in making safety determinations under these statutory provisions. (71 FR at 43908-43910). Section 408(b)(2)(C) requires EPA to give special consideration to risks posed to infants and children. Specifically, this provision states that EPA: shall assess the risk of the pesticide chemical based on- . . .

(II)available information concerning the special susceptibility of infants and children to the pesticide chemical residues, including neurological differences between infants and children and adults, and effects of *in utero* exposure to pesticide chemicals; and

(III)available information concerning the cumulative effects on infants and children of such residues and other substances that have a common mechanism of toxicity. . . . (21 U.S.C. 346a(b)(2)(C)(i)(II) and (III)). This provision further directs that “[i]n the case of threshold effects, . . . an additional tenfold margin of safety for the pesticide chemical residue and other sources of exposure shall be applied for infants and children to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children.” (21 U.S.C. 346a(b)(2)(C)). EPA is permitted to “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children.” (Id.). [The additional safety margin for infants and children is referred to throughout this order as the “children's safety factor.”] EPA's policy regarding implementation of the children's safety factor provision is described in the first denial order. (71 FR at 43910, 43918-43919). 3. *Procedures for establishing, amending, or revoking tolerances.* Tolerances are established, amended, or revoked by rulemaking under the unique procedural framework set forth in the FFDCA. Generally, the rulemaking is initiated by the party seeking to establish, amend, or revoke a tolerance by means of filing a petition with EPA. (See 21 U.S.C. 346a(d)(1)). EPA publishes in the **Federal Register** a notice of the petition filing and requests public comment. (21 U.S.C. 346a(d)(3)). After reviewing the petition, and any comments received on it, EPA may issue a final rule establishing, amending, or revoking the tolerance, issue a proposed rule to do the same, or deny the petition. (21 U.S.C. 346a(d)(4)). Once EPA takes final action on the petition by either establishing, amending, or revoking the tolerance or denying the petition, any affected party has 60 days to file objections with EPA and seek an evidentiary hearing on those objections. (21 U.S.C. 346a(g)(2)). EPA's final order on the objections is subject to judicial review. (21 U.S.C. 346a(h)(1)). 4. *Tolerance reassessment and FIFRA reregistration.* The FQPA requires, among other things, that EPA reassess the safety of all pesticide tolerances existing at the time of its enactment. (21 U.S.C. 346a(q)). In this reassessment, EPA is required to review existing pesticide tolerances under the new “reasonable certainty that no harm will result” standard set forth in section 408(b)(2)(A)(i). (21 U.S.C. 346a(b)(2)(A)(i)). This reassessment was substantially completed by the August, 2006 deadline. Tolerance reassessment is generally handled in conjunction with a similar program involving reregistration of pesticides under FIFRA. (7 U.S.C. 136a-1). Reassessment and reregistration decisions are generally combined in a document labeled a Reregistration Eligibility Decision (“RED”). 5. *Estrogenic substances screening program.* Section 408(p) of the FFDCA creates the estrogenic substances screening program. (21 U.S.C. 346a(p)). This provision gives EPA 2 years from enactment of the FQPA to “develop a screening program . . . to determine whether certain substances may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect as the Administrator may designate.” (21 U.S.C. 346a(p)(1)). This screening program must use “appropriate validated test systems and scientifically relevant information.” (Id.). Once the program is developed, EPA is required to take public comment and seek independent scientific review of it. Following the period for public comment and scientific review, and not later than 3 years following enactment of the FQPA, EPA is directed to “implement the program.” (21 U.S.C. 346a(p)(2)). The scope of the estrogenic screening program was expanded by an amendment to the Safe Drinking Water Act

(SDWA)passed contemporaneously with the FQPA. That amendment gave EPA the authority to provide for the testing, under the FQPA estrogenic screening program, “of any other substance that may be found in sources of drinking water if the Administrator determines that a substantial population may be exposed to such substance.” (42 U.S.C. 300j-17). The steps taken by EPA in implementing the endocrine screening program are described in the first denial order. (71 FR at 43910-43911, 43920-43921). B. Evaluating the Safety of Tolerances through the Use of Risk Assessment Including the Use of Safety Factors In the order denying the petition, EPA explained its risk assessment process for assessing the safety of tolerances in great detail. (71 FR at 43908-43910). That level of detail is not repeated here; however, a brief summary of the risk assessment process with an emphasis on how safety factors are incorporated into the process is included below for the convenience of the reader. Evaluation of the safety of a pesticide tolerance includes both examination of the pesticide's toxicity and the amount of exposure to the pesticide. EPA principally evaluates a pesticide's toxicity by attempting to establish safe levels of exposure for humans with regard to the adverse effects seen in animal studies conducted with the pesticide. Safe levels of exposure are established by first identifying the doses in animal studies at which no adverse effects were seen, and then dividing these dose levels with safety factors to provide an extra measure of protection for humans. Traditionally, EPA has used 2 safety factors of 10 when establishing a safe human dose level based on animal studies. One factor of 10 is applied to account for potentially increased sensitivity of humans vis-a-vis the test animals and a second factor of 10 is used to account for variable sensitivity in humans. (71 FR at 43909). The FQPA imposed a presumptive additional ten-fold factor to provide extra protection for infants and children. Having derived a safe dose level for humans, EPA then compares this dose level to aggregate human exposure to the pesticide. EPA follows a tiered approach in assessing exposure to pesticide residues. EPA initially uses the very conservative (health-protective) assumption that all food that legally may contain residues of a pesticide actually does contain such residues at the maximum legal level (Tier 1). Only if this analysis suggests that exposure may be a concern does EPA undertake the more resource-intensive effort of refining its exposure assessment to produce a more realistic estimate of exposure. In the first level of refinement of its worst case assessment, EPA incorporates data on the percentage of a crop treated with a pesticide and/or data on anticipated residues in food from crop field trials (Tier 2). Further refinements rely heavily on pesticide residue monitoring data of food in commerce and may include information from residue decline and degradation studies and studies evaluating the effect of commercial and consumer practices such as washing, cooking, and peeling on pesticide residues (Tiers 3-4). (Ref. 3; 71 FR at 43909-43910). IV. The Challenged Tolerances In its first denial order, EPA presented detailed information on the pesticides whose tolerances are at issue. (71 FR at 43911-43912). This information is briefly summarized below. *Alachlor* . Alachlor is a selective herbicide used in agriculture for the control of broadleaf weeds and grasses. Alachlor is registered under FIFRA for use on corn, soybeans, sorghum, peanuts, and beans and 37 FFDCA tolerances are currently associated with those uses. (40 CFR 180.249). In December 1998, EPA released a RED for alachlor finding it eligible for reregistration. (Ref. 4). The RED also reassessed alachlor's tolerances concluding that 22 met the requirements of section 408 but that 16 would have to be revised or revoked. (Id. at 184-187; Ref. 5 at 13-14). (The current number of tolerances for alachlor and the other two pesticides may not match the number of reassessed tolerances due to subsequent actions to establish or revoke tolerances as well as to a generic administrative action amending tolerance nomenclature. (68 FR 39428, July 1, 2003)). In making its safety determination as to alachlor, EPA removed the 10X children's safety factor based on its determination that

(1)the toxicology database was complete;

(2)the toxicology data showed no evidence of neurotoxicity and thus there was no need for a developmental neurotoxicity study for alachlor;

(3)the toxicology data showed no evidence of increased susceptibility in the young; and

(4)the exposure estimate was unlikely to understate exposure to infants and children. (Ref. 4 at 50). *Chlorothalonil* . Chlorothalonil is a broad spectrum, non-systemic protectant pesticide mainly used as a fungicide to control fungal foliar diseases of vegetable, field, and ornamental crops. In connection with these uses there are 66 FFDCA tolerances currently established for chlorothalonil. (40 CFR 180.275). In April 1999, EPA released a RED for chlorothalonil finding it eligible for reregistration so long as various uses were prohibited and numerous risk mitigation steps were taken. (Ref. 6 at v-vi). The RED also reassessed chlorothalonil's tolerances concluding that all met the requirements of section 408 except one that would have to be raised. Further, an additional tolerance was found to be necessary in connection with one use site. (Id. at 171-174; Ref. 5 at 58-59). Except as to acute risks, EPA removed the 10X children's safety factor for chlorothalonil based on its determination that

(1)the toxicology database was complete;

(2)the toxicology data showed no evidence of increased susceptibility in the young; and

(3)the exposure estimate was unlikely to understate exposure to infants and children. (Ref. 6 at 170; 66 FR 56233, 56242, November 7, 2001). Because a chlorothalonil acute study did not identify a dose with no adverse effects, EPA retained an additional FQPA safety factor of 3X in assessing acute risks. (Ref. 6 at 23). *Metribuzin* . Metribuzin is a herbicide used on a wide range of sites, including vegetable and field crops, turf grasses (recreational areas), and non-crop areas, to selectively control certain broadleaf weeds and grassy weed species. In connection with these uses there are 61 FFDCA tolerances currently established for metribuzin (40 CFR 180.332). In February 1999, EPA released a RED for metribuzin finding it eligible for reregistration based on various risk mitigation steps proposed by the registrant. (Ref. 7 at iv). The RED also reassessed metribuzin's tolerances concluding that 22 met the requirements of section 408 but that 38 would have to be revised or revoked. (Id. at 101-107; Ref. 5 at 187-188). EPA removed the 10X children's safety factor for metribuzin based on its determination that the toxicology database was complete and it showed no evidence of increased susceptibility in the young. (Ref. 7 at 51). V. Prior Proceedings A. The Petition to Modify or Revoke The States' petition requested that EPA modify or revoke all of the tolerances for alachlor, chlorothalonil, methomyl, metribuzin, and thiodicarb. (Ref. 1 at 1). These tolerances must be modified or revoked, the States asserted, because they do not meet the safety standard in section 408 of the FFDCA. (Id. at 2). The States argued that the tolerances are unsafe because EPA's latest safety conclusion for these tolerances did not include the full 10X children's safety factor and, if that full 10X safety factor is included, EPA cannot make the required reasonable certainty of no harm determination. The States claimed that “as a matter of law” the full 10X children's safety factor must be retained for each of these pesticides because of missing data concerning developmental neurotoxicity, endocrine effects, and/or cumulative effects of pesticides having a common mechanism of toxicity. It is “legally impermissible,” the States asserted, if any of these data are absent for EPA to conclude that there are “reliable data” to choose an additional safety factor other than 10X. (Id. at 2, 5, 9, 11). As statutory support for this allegation, the States cited several provisions in section 408. First, as to developmental neurotoxicity, the States pointed to section 408(b)(2)(C)'s requirement that EPA assess the risk to children based on “available information concerning the special susceptibility of infants and children to the pesticide chemical residues, including neurological differences between infants and children and adults . . . .” The States noted that EPA has announced that it plans to require developmental neurotoxicity (“DNT”) studies on all pesticides that are neurotoxic. (Ref. 1 at 10 citing 64 FR 42945, August 6, 1999). Second, as to endocrine effects, the States cited both the provision in section 408(b)(2)(D)(vii) requiring consideration of “such information as the Administrator may require on whether the pesticide chemical may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen or other endocrine effects” and the requirement in section 408(p) for EPA to develop and implement an endocrine screening program. Finally, with regard to cumulative effects, the States referenced the provision in section 408(b)(2)(D)(v) requiring consideration of “available data on the cumulative effects of such residues and other substances that have a common mechanism of toxicity,” and the requirement in section 408(b)(2)(C) mandating that EPA assess the risk to children based on similar considerations. B. EPA's Denial of the Petition Following consideration of the petition and comments received on the petition, EPA issued an order on August 2, 2006, denying the requested revocation as to alachlor, chlorothalonil, and metribuzin. (71 FR 43906, August 2, 2006). EPA did not address the requested revocation of methomyl and thiodicarb tolerances because those tolerances are still being evaluated as part of the tolerance reassessment program. The reasons for denying the petition are described below. 1. *Alachlor and metribuzin.* The States' petition was denied as to alachlor and metribuzin because EPA found that, even if it accepted as accurate the States' claim that it should have retained the 10X children's safety factor for these pesticides, the States had not shown that the tolerances were unsafe. (71 FR at 43916). As to alachlor, the States had based their conclusion that alachlor would be unsafe if an additional 10X factor was applied relying on an unrefined risk estimate in the alachlor RED. EPA pointed out, however, that “the RED also contained a revised risk assessment for alachlor that showed the highest aggregate risk estimate to be that exposure of children aged 1-6 is 4 percent of the [maximum safe dose],” and that “incorporating an additional 10X safety factor into such a risk estimate would increase the risk estimate to no greater than 40 percent of the [maximum safe dose], or still well within the safe level.” (Id.). A similar conclusion was reached as to metribuzin. (Id.). Again, the States had relied upon a risk estimate based on an unrefined exposure assessment to argue that application of the additional 10X safety factor would show that the metribuzin tolerances are unsafe. EPA showed that a slight refinement of the exposure and risk assessment made the requested retention of the additional 10X safety factor irrelevant to the safety determination. EPA made clear that, in moving from an unrefined, worst case exposure assessment to a more refined assessment, it had still taken a very conservative, health-protective approach to estimating exposure. An example is the manner in which EPA incorporated monitoring data on the level of metribuzin residues in potatoes into the exposure assessment. Data from the U.S. Department of Agriculture had shown that only 1 out of 1,472 samplings of potatoes revealed any detectable residue of metribuzin. “Nonetheless, in its risk assessment, EPA assumed that all potatoes contained metribuzin at the level found in that one sample (0.05 parts per million).” (Id. at 43917). Therefore, EPA did not evaluate the merits of the States' claim that the 10X children's safety factor should have been retained for alachlor and metribuzin. Instead it denied the petition as to these two pesticides because the petition, even if its claims were accepted as true, did not demonstrate that the pesticide tolerances were unsafe. 2. *Chlorothalonil.* Based on its conclusion that application of an additional 10X safety factor to the chlorothalonil risk assessment may have raised a safety issue, EPA evaluated the merits of the States' claims that EPA should have retained the 10X children's safety factor for chlorothalonil. The States had argued that the children's safety factor must be retained for chlorothalonil due to the lack of data on cumulative effects and potential endocrine disruption. Further, although the States did not specifically claim that EPA should retain the children's safety factor due to a lack of developmental neurotoxicity data on chlorothalonil, its general allegations could be read as suggesting as much. As to developmental neurotoxicity data, EPA pointed out that it only required such data for pesticides that were neurotoxins. The States, EPA found, had made no plausible argument that developmental neurotoxicity data were needed for non-neurotoxic pesticides nor had they alleged that chlorothalonil was neurotoxic. Further, EPA confirmed that its review of the chlorothalonil database did not show chlorothalonil to be neurotoxic. Accordingly, EPA rejected the States' claim that data bearing on developmental neurotoxicity were needed for chlorothalonil. (Id. at 43919). The States contended that data was lacking on cumulative effects due to EPA's finding that chlorothalonil was a member of a related group of chemicals. In response, EPA reviewed the data on chlorothalonil and these chemicals and concluded that chlorothalonil did not share a common mechanism of toxicity with these chemicals, and thus combined exposure to chlorothalonil and these chemicals would not produce cumulative effects. Therefore, EPA found that no additional data was needed on potential cumulative effects from exposure to chlorothalonil and these chemicals. (Id. at 43922). On endocrine effects data, the States' entire argument was that because EPA had not obtained data under the endocrine screening program on chlorothalonil it was legally obligated to retain the 10X children's safety factor. EPA responded that the States had misread the statute and not considered the factual information bearing on chlorothalonil. The children's safety provision, EPA noted, does not impose rigid rules regarding retaining the children's safety factor if particular pieces of data are missing. Rather, EPA pointed out that the safety provision gives EPA the discretion to evaluate the completeness of the database and determine if reliable data are available to choose an additional safety factor different than 10X that is protective of the safety of children. Nothing in the endocrine screening provision or its legislative history, EPA concluded, overturned this discretion granted EPA under the children's safety provision. (Id. at 43920). Further, EPA took into account that its existing data requirements for pesticides included testing very similar to that which had been proposed for use in the endocrine screening program. A review of the relevant test data for chlorothalonil showed that chlorothalonil is not an endocrine disruptor. EPA concluded that it had adequate reliable data on chlorothalonil's potential to cause endocrine effects to determine that it was safe to remove the children's safety factor. (Id. at 43921). Given its conclusion - based on interpretation of the statute as well as a thorough review of all of the extensive test data on chlorothalonil - that adequate, reliable data were available on developmental toxicity, cumulative effects, and endocrine effects, EPA rejected the States' claim that EPA was required to retain the 10X children's safety factor for chlorothalonil. Because the States' argument that the chlorothalonil tolerances are unsafe and must be revoked was based entirely on retention of the 10X children's safety factor, EPA denied its petition to revoke these tolerances. VI. The States' Objections On October 2, 2006, three of the four petitioning States (New York, Connecticut, and Massachusetts) filed objections to EPA's denial of their petition. (Ref. 2). EPA finds the objections to be somewhat unclear. To the best of its understanding, EPA believes the objecting States are making four separate, but related, objections. First, the States take issue with EPA's denial of the petition as to alachlor and metribuzin based on the conclusion that application of the children's safety factor for these pesticides would not change the determination on these pesticides' safety. The States claim that EPA made its determination on the need for the children's safety factor based on the size of the risk posed by these pesticides as opposed to the “merits.” (Id. at 7). Second, the States claim that EPA “manipulated” exposure data using “statistical sleight-of-hand techniques” to make pesticide exposure levels appear to be lower. (Id. at 2, 5). The objected-to techniques are reliance on data showing the percent of a crop treated with a pesticide and data showing the effect of food processing on residue amounts. The States argue that “EPA's use of such techniques are [sic] counter to the intent of the FQPA to protect infants and children from unsafe exposure to pesticides.” (Id. at 5). Third, the States renew their claim that EPA lacks data on endocrine disruption. The States allege that “[e]ndocrine disruption was not considered in the FQPA assessment because EPA does not yet have in place the endocrine disruption screening program that was required by the FQPA to have been completed by 1999.” (Id. at 3). Additionally, the States argue that EPA has ignored “the growing body of evidence that the effects of endocrine disrupting chemicals can be associated with very low doses, especially if exposure occurs in vulnerable stages such as fetal development.” (Id. at 4). Finally, the States argue that EPA removed the children's safety factor for these pesticides despite lingering uncertainty concerning their safety. As support for the assertion of uncertainty, the objecting States cite to EPA's description of the adverse effects seen in animal studies with several of the pesticides. (Id. at 7-8). The States do not include in their objections any of the claims in their petition regarding lack of data on developmental neurotoxicity or cumulative effects. VII. EPA's Response to the Objections For the reasons stated below, EPA denies each of the four objections lodged by the States. EPA's response to objections is necessarily circumscribed by the scope of the objections. Section 408 contains a mandatory exhaustion provision which requires that issues be presented and resolved by EPA in administrative proceedings prior to judicial review. (21 U.S.C. 346a(g) and (h)). This exhaustion requirement is designed to “bring the agency's experience to bear on a contested question” and make a full record on the dispute to aid in any judicial review of EPA's action. *Nader* v. *US EPA* , 859 F.2d 747, 753-54 (9th Cir. 1988). EPA cannot bring its experience to bear or make a record on challenges that have not been made. To ensure that EPA can evaluate the challenges that are made, the statute requires that objections “specif[y] with particularity the provisions of the regulation or order deemed objectionable and stating reasonable grounds therefor,” and EPA's regulations make clear that for an objection to be properly presented it must explain “with particularity . . . [its] basis . . . .” (40 CFR 178.25(a)(2)). For EPA to go beyond the specific arguments raised in objections, or to treat vague allegations as a general challenge to an EPA decision, and address matters not raised with particularity would undermine the purpose for exhaustion and merely invite objectors to improperly raise issues on judicial review which had not been exhausted before the Agency. A. Addressing the “Merits” of the Children's Safety Factor Determination for Alachlor and Metribuzin For alachlor and metribuzin, EPA denied the States' petition because grounds for the petition (failure to retain the children's safety factor) did not support the relief requested (revocation of the tolerances). The States object to this determination arguing that EPA should not decide whether to apply the children's safety factor based on the risks posed by a pesticide but instead based on the “merits.” Although EPA does not disagree with the general thrust of this proposition, EPA does not believe it has any relevance to EPA's decision on the petition as to alachlor and metribuzin. In responding to the States' petition, EPA did not decide whether the children's safety factor should be retained for alachlor and chlorothalonil. To the contrary, EPA simply assumed that the State's contention on the children's safety factor was correct for the purpose of determining whether it affected the safety determination. When it became clear the State's contention (that the children's safety factor should be retained) did not support their claim that the tolerances were unsafe, EPA denied the petition for failing to show the tolerances were unsafe. EPA believes it is appropriate for it to refuse to adjudicate the merits of claims where it can be shown that the claims - even if true -- do not justify the relief requested. In related circumstances, the Supreme Court has refused to require agencies to undertake such an “exercise in futility.” ( *Weinberger* v. *Hynson, Westcott & Dunning, Inc* ., 412 U.S. 609, 621

(1973)(upholding FDA's authority to deny an administrative hearing on a new drug application when the hearing requestor had not offered any evidence showing the statutory standard for approval could be met)). EPA has enshrined this principle in its regulations governing objections and requests for hearings by providing that hearings will not be granted as to “factual issues that are not determinative with respect to the action requested. For example, a hearing will not be granted if the Administrator concludes that the action would be the same even if the factual issue were resolved in the manner sought.” (40 CFR 178.32(b)(3)). Accordingly, EPA denies the objection that it was required to determine whether the children's safety factor should be applied for alachlor and metribuzin on the “merits.” EPA is not required to adjudicate issues that, even if substantiated, would not support the relief requested in the petition. B. Use of Data on Percent Crop Treated and Residue Reduction from Processing 1. *Overview/failure to raise issue in petition.* The States object to the lawfulness of EPA's reliance on percent crop treated information and food processing factors in assessing the risk to the three pesticides. According to the States, reliance on percent crop treated data runs “counter to the intent of the FQPA to protect infants and children from unsafe exposure to pesticides . . . because EPA's methods have resulted in a failure to address individual exposures.” (Ref. 2 at 5, 6). Individuals are not protected, the States contend, when EPA, in estimating pesticide exposure, takes percent crop treated data into account by assuming that consumers eat a mixture of pesticide-treated and untreated food and thus are exposed to an average of the residues on the treated and untreated commodities. This approach, the States argue, spreads a pesticide's exposure - by a “statistical sleight-of-hand” -- over the entire population instead of focusing on the individuals who eat the treated commodities. The States assert that if EPA's approach was applied to the enforcement of drunk driving laws, highway patrol officers could not make drunk driving arrests based on an individual driver's blood alcohol level but instead would have to examine the average blood alcohol levels of all drivers. As to the effect of food processing on residue levels, the States allege that EPA assumes that reductions in pesticide residues that occur as a result of food processing will also occur in unprocessed raw foods. Finally, they also assert that EPA has limited data on food processing's effect on residue levels. As an intial matter, EPA believes that such an objection is improper, for the most part, as beyond the scope of the denial order. The objection is appropriate, if at all, only as to EPA's decision as to metribuzin, and even then, only as to reliance on percent crop treated data. Objections must be made with “particularity [as to] the provisions of the . . . order deemed objectionable . . . .” (21 U.S.C. 346a(g)(2)). The FFDCA's tolerance revocation procedures are not some sort of “game,” whereby a party may petition to revoke a tolerance on one ground, and then, after the petition is denied, file objections to the denial based on an entirely new ground not relied upon by EPA in denying the petition. (See *Vermont Yankee Nuclear Power Corp.* v. *NRDC* , 435 U.S. 519, 553 (1978)). Although it is clear on the face of the alachlor and chlorothalonil REDs that EPA relied on percent crop treated and processing data and factors in assessing the chronic risk these pesticides posed, (Ref. 4 at 56, 83-83; Ref. 6 at 28-31), the States did not once mention a concern with the lawfulness of this practice in their petition to revoke tolerances. Understandably, given the States' silence regarding reliance on percent crop treated data and processing factors, EPA did not address this issue in its denial order as to alachlor and chlorothalonil. To the contrary, EPA's denial order for these pesticides was based on other grounds. For chlorothalonil, EPA denied the States' claim that EPA must retain the 10X children's safety factor by rejecting the States' arguments that the safety factor must be retained because of missing data on neurotoxicity, endocrine effects, and cumulative effects. As to alachlor, the denial order was based on an even more narrow ground - that the States had failed to show that retention of the 10X children's safety factor would render the alachlor tolerances unsafe. The States' error, EPA pointed out, was in misreading the RED's explicit conclusions on the size of the alachlor risk. The only issue, therefore, that the order resolved was what the RED stated with regard to the risk of alachlor. Accordingly, because the denial order as it pertains to alachlor and chlorothalonil did not address reliance on percent crop treated data and processing factors, the States' objection to use of percent crop treated data and processing factors is not an objection to the “provisions of the . . . order.” (21 U.S.C. 346a(g)(2)). Arguably, the States' objection to the use of percent crop treated data is timely and appropriate as to reliance on percent crop treated data for metribuzin because EPA relied on percent crop treated data for the first time in denying the petition as to that pesticide. However, as with alachlor and chlorothalonil, there does not appear to be any basis for the processing factor objection as to metribuzin. Not only does the metribuzin RED discuss processing data that was relied upon, but also the only processing factors used in the revised risk assessment cited in the petition denial were factors used to increase estimated exposure values in processed food. (Ref. 7 at 26, 102; Ref. 8 at 5). Notably, the only specific processing factor cited in the objections as problematic is a processing factor that pertains to a different pesticide (chlorothalonil) and was used to show residues were reduced upon food processing. (Ref. 2 at 6). Turning to the merits, for the reasons explained below, EPA finds the States' objection to the use of percent crop treated data and processing factors to be without basis. In brief, EPA concludes that: i. It has ample legal authority to consider percent crop treated data and food processing factors in making a safety determination under section 408 of FFDCA; ii. Reliance on percent crop treated data in risk assessment is not inconsistent with protection of individuals and was used in a conservative fashion in estimating metribuzin exposure; and iii. Processing factors are only applied to processed foods. 2. *Legal authority.* It is not clear from the States' objections as to whether they are arguing that EPA may never use percent crop treated and food processing data in estimating pesticide exposure or whether EPA has used it in an impermissible fashion with regard to the challenged pesticide tolerances. To the extent that the States are contending that the “intent of the FQPA” bars EPA as a legal matter from relying on percent crop treated information and processing data factors in estimating pesticide exposure and risk, they are mistaken. Such an interpretation is contrary to the plain language of the statute. Section 408(b)(2)(D)(vi) directs that EPA “shall consider, among other relevant factors -- . . . available information concerning the aggregate exposure levels of consumers . . . to the pesticide chemical residue . . . .” (21 U.S.C. 346a(b)(2)(D)). The extent of use of a pesticide and the degree to which a pesticide residue degrades or concentrates during processing are clearly relevant information “concerning aggregate exposure levels of consumers.” Further, Congress expressly recognized in the FQPA that this type of information is relevant and appropriate to a FQPA safety analysis. The statute, as amended by the FQPA, contains special provisions placing certain requirements upon EPA when it relies upon percent crop treated data in chronic risk assessments or anticipated residue data. (21 U.S.C. 346a(b)(2)(E) and (F)). Anticipated residue data is a term of art encompassing, among other things, data on the effect food processing has on pesticide residue levels. (70 FR at 46731-46732; Ref. 9) This term was in use by EPA well before such language was adopted in the FQPA. (Ref. 10; see, e.g., 54 FR 33044, 33045, August 11, 1989). Given this clear legal authority, the States' vague allegations that the use of percent crop treated data or processing factors runs counter to the intent of the FQPA are meritless. 3. *Use of percent crop treated data and individual exposure.* The States' claim that EPA's use of percent crop treated data is not protective of individuals appears to be based on a lack of understanding of

(1)the differences between acute and chronic risks and

(2)the different techniques EPA uses for incorporating percent crop treated information into risk assessments. At times, EPA uses percent crop treated data in estimating exposure for both chronic and acute risk assessments. Such data, however, is used in a different manner in these assessments due to the differences in how acute and chronic exposures may result in harm. Moreover, as to both acute and chronic risk, EPA is concerned with the risk to an individual within major, identifiable population subgroups and incorporates percent crop treated data in a manner consistent with that concern. Further explanation of this approach is provided below. With a chronic risk, EPA is concerned with adverse effects that occur from the cumulative effect of repeated exposures over an extended time period (i.e., generally a period of 1 year or more for dietary exposure). The focus for a chronic exposure assessment is not on the level of any one exposure or even the variation in exposure from day-to-day so much as the general level of the continuing exposure. Thus, in estimating chronic pesticide exposure, EPA uses average daily pesticide exposure over the appropriate time period. In estimating average daily pesticide exposure, EPA takes into account that, given the national distribution of food in the United States, over a chronic timeframe a person will consume food from a mixture of sources—regional, national, and international—as well as food grown at different times of the growing season. It is likely, therefore, that to the extent a food commodity is not uniformly treated with a given pesticide, the consumer will over time be exposed to a fairly representative sample of treated and untreated commodities. Accordingly, in refined exposure estimates for chronic pesticide exposures, EPA generally averages dietary pesticide exposure from a food based on the percentage of that food that has been treated with the pesticide. For example, if the estimated residue value for a pesticide on treated blueberries is 1 part per million

(ppm)and half of the blueberry crop is treated, EPA would estimate the chronic pesticide exposure level from blueberries using the assumption that all blueberries contain 0.5 ppm of the pesticide (i.e., treated blueberries bear 1 ppm pesticide residues and over time a person gets an equal mixture of treated and untreated blueberries). EPA has long used percent crop treated data in this manner in chronic risk assessments and Congress explicitly recognized the appropriateness of this method of estimating pesticide exposure in the FQPA. (21 U.S.C. 346a(b)(2)(F)). With acute hazards, EPA is concerned with an adverse effect that can result from a single pesticide exposure or pesticide exposure over a single day to an individual. Thus, acute pesticide exposure assessments are designed to measure or estimate the maximum amount of residue that may be present in a single commodity serving or meal. EPA's traditional method of using percent crop treated data in chronic risk assessments is problematic for acute risk assessments because it masks the highest levels of pesticide residues expected in food by averaging residue values from treated and untreated commodities in estimating pesticide exposure. For this reason, EPA, up until the mid-1990's, did not use percent crop treated data in acute risk assessments. Instead, for acute risk assessments, EPA assumed that all commodities for which a pesticide had a tolerance contain residues at the tolerance level. That changed, however, with the introduction in the last decade of probabilistic risk assessment analysis. Probabilistic analysis, when used in pesticide exposure/risk assessment, is “a statistical method where the range of exposures to pesticide residues and the probability of exposure to any particular level is quantified.” (Ref. 3 at 22). Probabilistic exposure assessments are particularly helpful in realistically estimating pesticide exposure levels from short-term exposures (e.g., a single meal) where there are multiple variables affecting pesticide exposure levels. For pesticide exposures from food these variables can include: i. Several different foods may be consumed in differing amounts; ii. The consumed foods may or may not have been treated with the pesticide in question; and iii. Foods that are treated may have a wide range of residue levels. Integral to probabilistic analysis of pesticide exposure is information on differing consumption patterns among individuals, the range of the levels of pesticide residue in treated food, and the percent of food that has been treated with a pesticide. Importantly, information on percent crop treated is not used in a probabilistic analysis to average residue levels between treated and untreated crops but rather solely to determine “the probability of [an individual] encountering a treated commodity.” (Ref. 11 at 14). Thus, percent crop treated information is used in a fundamentally different fashion in probabilistic acute risk assessments than in non-probabilistic chronic risk assessments. (The Agency currently does not use probabilistic techniques for chronic risk assessment due to limitations in its food consumption database.) The States' challenge to EPA's use of percent crop treated data for metribuzin is flawed because the States attack the appropriateness of the exposure estimate for a chronic risk assessment based on concerns more applicable to acute risk. The States argue that the adjustment of residue values by the percentage of the treated crop understates exposure of individual children because “if a child is eating treated carrots, he or she is consuming carrots that all contain pesticide residues . . . .” (Ref. 2 at 5). EPA generally agrees that if the concern is acute risk, it would be inappropriate to estimate acute exposure for non-blended commodities by multiplying the expected residue value in a food (e.g., carrots) by an estimate of the percent of carrots treated with the pesticide. Acute exposure assessments should be designed to identify actual exposures that can occur to an individual at a single meal or in a single day. For metribuzin (and alachlor and chlorothalonil as well), however, EPA used percent crop treated data only for estimating chronic pesticide exposure and risk. For chronic dietary risk, it is generally exposure over a period of at least 1 year that matters and over such a time period a person is likely to consume a mixture of treated and untreated commodities. For the same reason, the States' drunk driving hypothetical is not persuasive. Their hypothetical is somewhat analogous to the situation EPA faces in assessing acute pesticide risk - both the highway patrol officer investigating a suspected drunk driver and EPA in evaluating acute risk from pesticide exposures are interested in ascertaining an individual's actual level of exposure (to alcohol or pesticides, respectively) at a certain point in time. However, the hypothetical has no relevance to chronic pesticide risk assessment - the type of risk assessment involved in the State's objections -- because with chronic pesticide risk it is appropriate for EPA to focus on a person's general pesticide exposure level over an extended period rather than one particular exposure at a single point in time. The States additionally argue that because “families purchase food from the same place each week, a family could virtually always eat treated carrots . . . .” (Ref. 2 at 5). What the States fail to take into account, however, is that, although a family may do its food shopping at the same store week-to-week and even may purchase a bag of carrots every week, from week-to-week the bag of carrots is likely to come not just from a different farm but a different region of the United States due to the national distribution of food commodities. Perishable foods are available on a nearly year-round basis in the United States only because the country's national food distribution network ships foods nationwide from different parts of the country or world as dictated by the differing growing seasons in these areas. For foods such as grains, root crops, or other commodities which have significantly greater storage times, a broad mixing of commodities occurs due to centralization of storage facilities prior to the commodities entering the food distribution network. The States also fail to take into account the conservative manner that EPA uses percent crop treated data to estimate chronic exposure both generally and with regard to how these data were used for the metribuzin risk assessment. As discussed earlier, EPA uses a tiered approach to assess pesticide exposure in food, starting with a worst case assessment which assumes that all foods with tolerances contain the pesticide at the tolerance level (Tier 1) and then refining those assumptions through a series of tiers that increasingly incorporate data designed to measure residues at the time of consumption. Higher tiers (Tiers 3 and 4) rely heavily on monitoring data of pesticide residues in food sampled either at central food distribution points or in retail locations. Percent crop treated data is commonly introduced in Tier 2 as an initial refinement of worst case assumptions, and that is how it was used in the metribuzin risk assessment. There, EPA conducted primarily a Tier 2 assessment assuming that foods with metribuzin tolerances contained residues at the tolerance level reduced only by the percentage of these foods treated with metribuzin. EPA's experience has been that Tier 2 assessments significantly overstate exposure levels compared to higher tier assessments relying on monitoring data. This is well illustrated by the metribuzin risk assessment. For one crop commodity in that assessment, potatoes, EPA used monitoring data to estimate exposure levels rather than a combination of assuming tolerance level residues diminished only by the percent of the crop treated. The monitoring data showed that only 1 out of 1,472 potato samples had metribuzin residues. In that sample, metribuzin was detected at a level of 0.05 ppm. Conservatively, EPA assumed in its risk assessment that all potatoes contain 0.05 ppm of metribuzin. Despite this conservative approach to the monitoring data, a Tier 2 assessment relying on percent crop treated data and tolerance level residues in potatotes would have produced a much higher exposure estimate than the assessment relying on monitoring data. The tolerance for metribuzin in potatoes is 0.6 ppm. Decreasing that value by the percent crop treated value for metribuzin use on potatotes (70 percent) yields an estimated residue value in potatoes of 0.42 ppm, or almost an order of magnitude higher than the value derived from monitoring data which was used in the metribuzin risk assessment. (Ref. 8). There would have been an even bigger gap between a Tier 2 exposure assessment for potatoes and an assessment relying on monitoring data if EPA had made the reasonable, but still conservative assumption, that all potato samples in which no metribuzin was detected contained metribuzin at half the level of detection for the analytical method (levels of detection ranged from 0.016 to 0.030 ppm). (Ref. 12). The conservativeness of EPA's metribuzin exposure assessment is further demonstrated by the most recent pesticide monitoring data (for the years 2002 - 2005) on foods for which EPA relied on percent crop treated information (asparagus, barley, carrots, corn (field, sweet, and pop), peas (dried and succulent), sugarcane, tomatoes, and wheat). Over these 4 years, USDA, through its Pesticide Data Program has collected pesticide monitoring data on asparagus, barley, carrots, corn (sweet), peas (succulent), tomatoes, and wheat. Out of 10,313 samples, only 11 showed metribuzin residues. (Ref. 13). These data demonstrate that, for all practical purposes, meaningful levels of metribuzin are nonexistent in food. Thus, EPA's use of percent crop treated data to refine the worst case assumption of all food bearing tolerance level residues in estimating chronic human exposure to metribuzin is very unlikely to have resulted in an understatement of such exposure. The States, for their part, offer no evidence to support their contention that EPA's use of percent crop treated data in the metribuzin risk assessment has led to an underestimate of metribuzin exposure. Accordingly, the States' objection to the use of percent crop treated information is denied. First, as discussed in Unit VII.B.1., EPA denies this objection as to alachlor and chlorothalonil because it exceeds the scope of denial order and the petition underlying it. Second, as is explained in Unit VII.B.1., to the extent the States are making a legal argument that EPA may never consider percent crop treated data, that argument is defeated by the plain language of the statute. Third, to the extent they are arguing that the manner in which EPA uses percent crop treated data in chronic risk assessments understates pesticide exposures to individuals, their argument is not well-taken because they confuse chronic and acute exposure and risk; they do not take into account that the food distribution system in this country is national in scope; and they do not recognize the conservative fashion in which percent crop treated data was used in the metribuzin risk assessment to estimate exposure. Moreover, the States have offered no evidence to support their speculations about EPA underestimating exposure. Finally, the States have made no challenge to the accuracy of EPA's factual findings with regard to the percent crop treated data on metribuzin. 4. *Use of processing data.* The States object to the use of food processing factors claiming that such factors “are generally based on limited test data from certain crops and extrapolated to other crops or conditions using a variety of statistical techniques.” (Ref. 2 at 5). Further, citing to the chlorothalonil RED, the States claim that EPA wrongfully used a processing factor for carrots showing that chlorothalonil residues declined significantly in cooked carrots in estimating exposure to chlorothalonil from raw carrots. According to the States, EPA erred because “if a child is eating freshly treated raw carrots, the processing factor should not apply.” (Ref. 2 at 6). The States imply that it is common practice for EPA to apply processing factors to raw food. A bit of background might be helpful here. In estimating exposure to pesticide residues in food, EPA uses residue data from commercial food processing studies as well as, on occasion, data from in-home food preparation studies. (Ref. 3). These studies reveal whether commercial or home processing concentrates or reduces pesticide residues. Based on the degree of reduction or concentration of residues in food processing, EPA computes processing factors which when applied to level of residues found in raw foods will calculate the level of residue expected in the food following processing. Data on the commercial processing of food (e.g., processing apples into apple juice; separating wheat into grain and bran) is routinely required as a part of pesticide registration under FIFRA and the tolerance petition process under the FFDCA. (40 CFR 158.240; Ref. 14). EPA has extensive guidance on the use of such data in pesticide exposure assessments including the appropriateness of extrapolating between data on different commodities. (Refs. 9 and 14). In the absence of commercial processing data, EPA relies on default processing factors in estimating exposure in processed foods. These default processing factors are extremely conservative in that they assume that: i. Residues are concentrated to the maximum extent physically possible in processed foods, and ii. When a raw commodity is processed into two separate processed commodities, all of the pesticide in the raw commodity is translocated to both processed commodities. For example, in estimating residues in processed commodities resulting from the juicing of apples, EPA uses default processing factors that assume that all pesticide residues from the apple concentrate in both the juice and the remaining dry matter, apple pomace, which is fed to animals. (70 FR at 46733-46734). Data on pesticide residue levels following in-home food preparation is not routinely required and reliance on this information is used in risk assessments relatively rarely. Generally, these data are produced by pesticide manufacturers in an attempt to demonstrate that EPA has overstated residues in food as consumed. The States' objection as to the use of processing factors is replete with problems. First, as noted above, if the States were concerned about the use of processing data in calculating processing factors, those concerns should have been raised in its petition. The REDs for all three pesticides extensively discussed processing data. Second, the States' claim that processing data are “limited” is too general and vague to satisfy the regulatory requirement that the basis for objections be stated with “particularity.” (40 CFR 178.25(a)(2)). The States neither point to specific data missing on these pesticides nor address the extensive EPA guidance and test guidelines concerning the collection and use of processing data. Third, the States' claim that EPA applies processing factors to raw foods in estimating residue levels in raw foods is specious. In support, the States assert that, in the chlorothalonil RED, EPA used a processing factor that showed a marked reduction of residues during the cooking of carrots to estimate the residues in raw carrots. The States are wrong. As the RED clearly states, the processing factor of 0.005 is for “all cooked or processed food forms” of carrots. (Ref. 6 at Table 6). Further, although the printouts from the computer risk assessment runs used to compile the 1998 chlorothalonil RED do not contain a high level of detail, later chlorothalonil risk assessments plainly show that the cooking factor for carrots is only applied to “cooked” carrots and not to “uncooked” carrots. (Ref. 15). The States, again, cite no basis for their claim to the contrary. The States' objection here is based on nothing more than speculation and incorrect assumptions and is, therefore, denied. C. Data on Endocrine Effects The States object to EPA's removal of the children's safety factor for chlorothalonil arguing that “[e]ndocrine disruption was not considered in the FQPA assessment because EPA does not yet have in place the endocrine disruption screening program that was required by the FQPA . . . .” (Ref. 2 at 3). The States further allege that “EPA failed to consider other published information on endocrine disruption, and instead has made a unilateral decision to wait for the endocrine disruption program to be established before it can make any determination about endocrine disruption potential.” (Id.). These claims have no factual basis. In its order denying the States' petition, EPA described the multiple chlorothalonil studies it had addressing potential endocrine effects and found that chlorothalonil was not an endocrine disruptor. (71 FR at 43921). The States have made no credible challenge to EPA's scientific determination based on this extensive database. Further, the States are simply wrong in claiming that potential endocrine disruption was not considered by EPA. In reviewing EPA's disposition of the endocrine disruptor issue in its petition denial, EPA has discovered one error in that document. There, EPA stated that the chlorothalonil two-generation reproduction study in rats was conducted “under the most recent testing guidelines.” (71 FR at 43921). Although this chlorothalonil study is largely consistent with these testing guidelines it was performed and reviewed by EPA prior to the finalization of the revised guidelines. In light of this misstatement, EPA has once again carefully reviewed the evidence on whether chlorothalonil is an endocrine disruptor. EPA reaffirms its earlier conclusion that chlorothalonil is not an endocrine disruptor for the reasons below. EPA has extensive data bearing on chlorothalonil's potential to disrupt endocrine systems. For all pesticides that result in residues in foods, EPA reviews numerous studies that bear on a pesticide's potential endocrine effects. (71 FR at 43921). For chlorothalonil, EPA reviewed two complete sets of data on developmental toxicity, reproductive toxicity, subchronic toxicity, chronic toxicity, and cancer. (Ref. 16). Developmental studies evaluate several endpoints susceptible to endocrine influence including effects on maternal animal fertility and pregnancy rates and on pup viability and sex ratios in pups. (71 FR at 43921). The chlorothalonil studies showed no treatment-related effects on any of these endpoints. (Refs. 17, 18, 19, and 20). Subchronic, chronic, and cancer studies must include examination of organs that play a critical role in the endocrine system (e.g., testes, epididymides, uterus, ovaries, mammary glands, and thyroid with parathyroid). These organs are removed, weighed and subjected microscopically to examination for evidence of any pathology. (71 FR at 43921). For chlorothalonil, no effects were seen in these organs in sub-chronic, chronic, and cancer studies involving rats, dogs, and mice. Rather, these studies consistently showed non-endocrine mediated effects on the stomach and kidneys, or on body weight. (Refs. 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32). The most important study for evaluating endocrine effects is the two-generation reproduction study in rats. (71 FR 43921). This study has been proposed by the Endocrine Disruptor Screening Program as the critical study for resolving whether chemicals are endocrine disruptors in mammals. The two-generation reproduction study examines numerous endpoints potentially influenced by the endocrine system including the endocrine-related organs noted above, as well as various reproduction endpoints both with regard to adults and pups. The most recent amendment to the guidelines for the reproduction study recommended expansion of the study to include consideration of the time of vaginal patency and balanopreputial separation in pups and determination of estrous cycle length and sperm enumeration, morphology, and motility in adults. (Ref. 33). Although the most recent chlorothalonil reproduction study was conducted prior to finalization of these amendments to the guideline, it nonetheless addressed all of these endpoints other than examination of adult sperm. Consistent with the other chlorothalonil toxicity studies, the reproduction study reported similar effects on the stomach and kidneys and no effects on the endocrine-related organs. A delay in vaginal patency and balanopreputial separation was noted at the high dose in pups; however, this effect was determined to have been a consequence of body weight decrements during lactation and not an endocrine effect, based on the fact that no differences were seen in mating and reproductive performance between treated and control animals. (Ref. 34). The findings in this study were similar to those in an earlier reproduction study with chlorothalonil. (Ref. 35). What each of these studies show is that chlorothalonil's toxicity is not endocrine-mediated but rather operates by quite different mechanisms. Chlorothalonil causes a thickening and roughening, including hyperplasia and hyperkeratosis, of the lining (epithelium) of the non-glandular portion of the stomach and adverse effects on the kidney including increased weight and tumors. Chlorothalonil's effects on the stomach are due to irritation of the stomach lining followed by cytotoxicity, necrosis, increased cell proliferation, and restorative hyperplasia. The kidney effects are caused by chlorothalonil's disruption of enzymatic processes in the kidney leading to vacuolar degeneration, rapid cellular regeneration and proliferation, and eventually tumor formation. These effects are not related to the endocrine system. (Ref. 16). In fact, repeated examinations of the primary organs in the endocrine system in chlorothalonil studies have shown no adverse effects. Similarly, chlorothalonil's effect on body weight is a non-specific response not targeting any of the body's organs and thus not endocrine-related. Although data on effects on adult sperm were not collected in the reproduction study, repeated examinations of the testes in that and other studies showed no concern with this organ. Accordingly, EPA reaffirms its prior conclusion that it has sufficient data on the potential of chlorothalonil to cause endocrine effects in the young to remove the additional children's safety factor with regard to this endpoint. For the first time in this proceeding, the States claim in their objections that EPA ignored “published data [on endocrine disruption] that suggests that the full 10X factor should be applied . . ..” (Ref. 2 at 4). Specifically, the States cite to two scientific articles which they claim document “the growing body of evidence that the effects of endocrine disrupting chemicals can be associated with very low doses, especially if exposure occurs in vulnerable stages such as during fetal development.” (Id.). EPA has several difficulties with this claim. First, for the reasons cited in Units VII.B., EPA questions the appropriateness of raising new factual claims at this stage of the proceedings. Second, the two articles cited are, for the most part, general overview discussions of endocrine disrupting chemicals, and do not show - and the States do not claim they show - that chlorothalonil is an endocrine disruptor. 1 Third, EPA does not understand the relevance the level at which endocrine disruptors cause effects has with regard to a pesticide such as chlorothalonil which has been found not to be an endocrine disruptor. 1 One of the articles, contains an EPA list of endocrine disruptors which includes chlorothalonil. That list is dated October 24, 1996 and provides no reason for chlorothalonil's inclusion. The article notes that there is “no doubt this list will change rapidly in the near future. Some of the chemicals on this list will probably be dropped from future consideration and other new ones are expected to be added.” (Keith, Lawrence H., Environmental Endocrine Disruptors, Pure & Applied Chemistry., Vol. 70,No 12 pp. 2319-2326, at 2321 (1998)). As EPA has detailed in its order on the petition and this order, it has extensive data on chlorothalonil that shows that chlorothalonil is not an endocrine disruptor. As mentioned above, the objectors have provided no factual grounds challenging that determination. Accordingly, EPA denies the States' objection concerning endocrine disruptor data. To recap, EPA denied the States' petition which sought the revocation of the chlorothalonil tolerances based on the States' claim that EPA had unlawfully removed the children's safety factor given the alleged absence of data on, among other things, endocrine disruption. EPA explained that: i. It was not legally compelled to retain the children's safety factor because data on chlorothalonil had not been collected under the endocrine disruptor screening program; ii. It had adequate data on whether chlorothalonil was an endocrine disruptor; and iii. Those data showed that chlorothalonil was not an endocrine disruptor. (71 FR at 43919-43921). In its objections the States make no specific challenge to EPA's factual determination as to the second and third points; rather, they do little other than repeat the assertion presented in their petition that EPA cannot remove the children's safety factor until data is gathered under the endocrine disruptor screening program. EPA, therefore, denies the objections based on the legal and unchallenged factual grounds asserted in its order denying the petition. (See 71 FR at 43906). To the extent the States believe that the misstatement concerning conformance of the chlorothalonil reproduction study to the most recent testing guidelines caused it not to dispute EPA's factual findings, EPA will entertain supplemental objections addressing this factual issue so long as such supplemental objections are filed within 60 days of the date of publication of this order and otherwise meet the requirements governing objections in section 408(g) of FFDCA and 40 CFR part 178. D. Alleged Uncertainty with Regard to Safety The States object that there is uncertainty with regard to the safety of each of the pesticides and, for that reason, EPA should have retained the 10X children's safety factor. To demonstrate the alleged uncertainty, the States do nothing more than quote language from EPA's denial order that summarized the toxicological effect findings for chlorothalonil, alachlor, and methomyl. Presumably, the States are contending that the mere fact that at some dose a pesticide can cause an adverse effect in an animal study is sufficient to show a level of uncertainty that bars EPA from exercising its discretion to vary from the tenfold children's safety factor. As explained below, this argument is without a basis. The mere presence of an adverse effect in a toxicology study is insufficient without more factual context to show uncertainty. Because the States do not provide that context, their argument collapses at its inception. Before addressing the merits of the States' objection, as a preliminary matter, EPA notes that this objection only applies to chlorothalonil and not to methomyl, alachlor, or metribuzin since EPA declined to retain the children's safety factor only as to chlorothalonil. As discussed above, the methomyl petition is still pending before EPA, and as to alachlor and metribuzin EPA did not address the issue of whether the children's safety factor should be retained given that, even if the factor is retained (due to uncertainty or some other reason), the tolerances would still meet the safety standard. Finally, even as to chlorothalonil, EPA questions the appropriateness of this objection given that it is based on arguments not included in the States' petition. Turning to the merits of the objection-assuming it is properly filed as to chlorothalonil -- the objection can be quickly dismissed. The States are correct to note that the issue of whether there is uncertainty regarding the safety of children is a key consideration in a determination as to whether to retain or modify the children's safety factor. However, the States fail to make a significant argument that there is uncertainty regarding the safety of chlorothalonil. Certainly, the mere repetition of EPA's findings for chlorothalonil on the adverse effects seen in animal studies does not demonstrate uncertainty as to the safety of infants and children. Adverse effects found in toxicological animal studies with a pesticide comprise just one piece of the complex puzzle informing the evaluation of uncertainty that is critical to the children's safety factor determination. Standing alone, they show little regarding the certainty or uncertainty regarding risks to infants and children. Rather, this certainty or uncertainty, which drives the determination of the children's safety factor, is informed by a weight-of-the-evidence evaluation of many issues including: what effects are seen in animals; what dose levels the effects occurred at; how strong the effects were; whether there was a good dose-response relationship with regard to the effects; how clearly a threshold for the effects have been identified; whether similar or related effects were seen in the same or other species in other studies; whether these effects are seen in adult and young animals, and, if so, at the same or differing levels; and what level of protection against the effects is provided by traditional safety factors. Reliance on a single fact (such as the type of adverse effect seen in an animal study), in isolation, without explanation of how it bears on the ultimate safety factor determination and certainty/uncertainty regarding that determination, is insufficient to state a meaningful challenge to EPA's conclusion on the children's safety factor. For example, the first adverse effect cited by the States is that “increased kidney weights and hyperplasia” were seen in a chlorothalonil chronic rat study and that these effects were used in calculation of a safe dose for that pesticide. That is all the States say with regard to the increased kidney weights and hyperplasia. They do not discuss what dose level the effects occurred at, how significant the effects were, whether a clear no-effect level was identified for the effects, what safety factors were used to protect against the effect in humans, or any of the other issues identified above bearing on EPA's certainty/uncertainty regarding these effects. By itself, the fact that an adverse effect occurred shows little, and the failure of the States to offer any argument as to why such an effect evidences uncertainty renders their objection deficient on its face. Accordingly, the States' objection that the children's safety factor is required for chlorothalonil due to uncertainty raised by adverse effects is denied. This argument is entirely absent from its petition and is thus not properly raised as an objection. In any event, the objection is denied on the merits for a failure to cite relevant factors or to make a meaningful factual showing on uncertainty. E. Summary of Findings on the Objections EPA denies each of the States' four objections for the reasons summarized below: *Objection #1* : EPA was required to determine whether the children's safety factor should be applied for alachlor and metribuzin on the “merits.” In ruling on a petition to revoke tolerances as unsafe, EPA is not required to resolve substantive issues concerning the children's safety factor if resolution of those issues in the manner sought by the petitioner would not alter the safety determination for the challenged tolerances. *Objection #2* : EPA unlawfully relied on percent crop treated data and processing factors to decrease the estimated risks of the challenged pesticide tolerances. First, this objection is improper as to alachlor and chlorothalonil because the denial order did not rely on percent crop treated data or processing factors in resolving the objections as to these pesticide tolerances. The objection as to use of processing factors is improper as to metribuzin because EPA did not rely on processing factors to decrease metribuzin exposure estimates in the denial order. Second, as to the objection with regard to the use of percent crop treated data in the metribuzin risk assessment, the plain language of the statute makes clear that EPA may rely on such information and the States' claims that reliance on such data is not protective of individual risk were not substantiated. Additionally, EPA's conservative use of percent crop treated data in the metribuzin risk assessment is unlikely to have underestimated metribuzin exposure and the States have presented no evidence to the contrary. Third, alternate grounds for denying the States' objection to the use of processing factors include:

(1)the States have failed to particularize their criticism of the use of such information and instead rely on vague and unsubstantiated allegations; and

(2)the States' claim that EPA uses processing factors to estimate residue levels in raw, unprocessed food is in contravention of clear record evidence, and without any substantiation. *Objection #3* : EPA has failed to consider endocrine effects for challenged pesticides because EPA has not obtained data for these pesticides under the endocrine-screening program and because EPA has not considered outside literature bearing on endocrine effects. First, this objection is improper as to alachlor and metribuzin because the denial order did not resolve any issue regarding endocrine effects as to these two pesticides. This objection is only properly filed as to chlorothalonil. Second, EPA has considered substantial data on the potential endocrine effects of chlorothalonil and concluded that it is not an endocrine disruptor. The States' objection does not challenge this factual determination. The statute does not require that EPA retain the children's safety factor until the endocrine-screening program is completed. Third, the States' claim that EPA has not properly considered outside literature on endocrine disruption is denied as going beyond the provisions of the denial order. An alternate ground for denying this argument is that literature cited by the States is general in nature and does not provide information on chlorothalonil. *Objection #4* : Where a pesticide causes adverse effects in animal toxicological studies EPA may not remove the children's safety factor due to lingering uncertainty concerning its safety. First, this objection is improperly submitted in that the question of whether the mere presence of adverse effects in animal toxicological studies is determinative under the children's safety factor provision was not addressed in the petition denial order. Second, an alternate ground for denying this objection is that the mere citation of adverse effects is inadequate standing alone to demonstrate uncertainty regarding the safety of a pesticide. VIII. Judicial Review This is a final order under FFDCA section 408(g)(2)(C) and is reviewable in the United States Courts of Appeals pursuant to FFDCA section 408(h)(1). (21 U.S.C. 346a(g)(2)(C) and 346a(h)(1)). To the extent supplemental objections are timely filed, as discussed in Unit VII.C., EPA will issue a separate, reviewable order under FFDCA section 408(g)(2)(C) pertaining solely to any such supplemental objections. IX. Regulatory Assessment Requirements As indicated previously, this action announces the Agency's final order regarding objections filed under section 408 of FFDCA. As such, this action is an adjudication and not a rule. The regulatory assessment requirements imposed on rulemaking do not, therefore, apply to this action. X. Submission to Congress and the Comptroller General The Congressional Review Act, (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule for purposes of 5 U.S.C. 804(3). XI. References 1. Petition of New York, California, Connecticut and Massachusetts for Modification of Tolerances for Pesticide Chemical Residues Established in Reregistration Eligibility Determinations for the Following Chemicals: Alachlor; Chlorothalonil; Methomyl; Metribuzin; Thiodicarb (December 17, 2004) (petition addressed to Michael O. Leavitt, Administrator, United States Environmental Protection Agency). 2. Objection of New York, Connecticut, and Massachusetts to Order Denying Petition to Revoke or Modify Tolerances for Alachlor, Chlorothalonil and Metribuzin (October 2, 2006). 3. Office of Pesticide Programs, U.S. EPA, “Available Information on Assessing Pesticide Exposure From Food: A User's Guide” (June 21, 2000). 4. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Reregistration Eligibility Decision: Alachlor (December 1998). 5. U.S. EPA, Permanent Tolerances by Pesticide: Aug. 1996 TIS (August 2002) (available at *http://www.epa.gov/oppsrrd1/tolerance/pdf-files/TolUniv8-05-2002.PDF* ). 6. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Reregistration Eligibility Decision: Chlorothalonil (April 1999). 7. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Reregistration Eligibility Decision: Metribuzin (February 1998). 8. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Memorandum from Douglas Dotson to Paula Deschamp, “Metribuzin Acute and Chronic Dietary Exposure Assessments” (April 17, 2006). 9. Office of Pesticide Programs, U.S. EPA, “Guidance For Refining Anticipated Residue Estimates For Use In Acute Dietary Probabilistic Risk Assessment” (June 15, 2000). 10. U.S. EPA, “Guidelines for the Use of Anticipated Residues in Dietary Exposure Assessment” (March 25, 1991). 11. Office of Pesticide Programs, U.S. EPA, “Choosing a Percentile of Acute Dietary Exposure as a Threshold of Regulatory Concern.” (March 16, 2000) (available at *http://www.epa.gov/pesticides/ trac/science/trac2b054.pdf* ).] 12. Office of Pesticide Programs, U.S. EPA, “Assigning Values To Nondetected/Non-Quantified Pesticide Residues In Human Health Food Exposure Assessments.” (March 23, 2000). 13. U.S. Department of Agriculture, Pesticide Data Program (2002 - 2005) (available at *http://www.ams.usda.gov/science/pdp/download.htm* and in the docket). 14. Office of Prevention, Pesticide, and Toxic Substances, U.S. EPA, OPPTS Harmonized Test Guidelines: Series 860 Residue Chemistry Test Guidelines, OPPTS 860.1520 - Processed Food/Feed (August 1996). 15. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Memorandum from J.R. Tomerlein to Dennis McNeilly/Rosemary Kearns, “Chlorothalonil: Acute and Chronic Dietary Exposure Assessments for a Tolerance on Edible Podded Peas Without a U.S. Registration” (December 15, 2004). 16. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Memorandum from P.V. Shah to Pete Caulkins, “HED Response to Questions Raised by SRRD Regarding Chlorothalonil” (June 22, 2006). 17. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Prenatal Developmental Toxicity Study - Rabbit; Chlorothalonil (1994). 18. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Prenatal Developmental Toxicity Study - Rat; Chlorothalonil (1994). 19. Office of Pesticide and Toxic Substances, U.S. EPA, Memorandum from Alan C. Levy to Cynthia Giles-Parker, “Chlorothalonil - Reviews of the Following Toxicity Studies: Rat Oncogenicity, Rabbit Teratogenicity, One-Generation Rat Reproduction (rangefinding), Rat Pilot Metabolism With AT-125, Comparison of Dog and Rat Metabolism, and Rat Dermal Metabolism” (1991). 20. Office of Pesticide and Toxic Substances, U.S. EPA, Memorandum from David L. Ritter to Henry Jacoby, “EPA Reg. No 677-313 - Review of miscellaneous Toxicity Data” (1984). 21. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Subchronic Oral Toxicity in Dogs (diet); Chlorothalonil (1994). 22. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): 90-Day Oral Toxicity [diet] - rats; Chlorothalonil (1994). 23. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Subchronic Feeding Neurotoxicity in Rat; Chlorothalonil (2004). 24. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Combined chronic toxicity/carcinogenicity (diet)- rats; Chlorothalonil (1996). 25. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Chronic Toxicity in Dogs (diet); Chlorothalonil (1995). 26. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Carcinogenicity study in mice [feeding]; Chlorothalonil (1995). 27. Office of Pesticides and Toxic Substances, U.S. EPA, Memorandum to Diane Beavers, “Chlorothalonil

(CTN)and its 4-OH metabolite in almonds, rice, wheat and meat, milk, poultry and eggs. Petition for tolerances” (1984). 28. Office of Pesticides and Toxic Substances, Memorandum from David Ritter to H. Jacoby, “EPA Reg.No 50534-7 Data Call in Submission. Chlorothalonil Registration Standard; review of data” (1986). 29. Office of Prevention, Pesticides, and Toxic Substances, Memorandum from Alan C. Levy to Walter Waldrop/Andrew W. Ertman, “Chlorothalonil - Review of 30-Day, 90-Day and One-Year Dog Studies (Oral Administration, Gelatin Capsules)” (1996). 30. Health Effects Division, U.S. EPA, Data Evaluation Report; Ninety Day Mouse Feeding Study; Technical Chlorothalonil (DS-2787) (1983). 31. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Memorandum from Alan C. Levy to Karen Whitby, “Chlorothalonil - Rereview of a Chronic Dog Study and a Developmental Rat Study; Review of a Dermal Absorption Rat Study” (1995). 32. Office of Pesticides and Toxic Substances, U.S. EPA, Memorandum from D. Ritter to Lois Rossi, “EPA No 50534-7 - CX, Submission of additional toxicity data” (1988). 33. Office of Prevention, Pesticides, and Toxic Substances, U.S. EPA, Health Effects Test Guidelines; OPPTS 870.3800; Reproduction and Fertility Effects (August 1998). 34. Health Effects Division, Office of Pesticide Programs, U.S. EPA, Data Evaluation Record (TXR No: 0052493): Reproduction and Fertility Effects Study - [rat]; Chlorothalonil (1995). 35. Office of Pesticide and Toxic Substances, U.S. EPA, Memorandum from Alan C. Levy to Walter Waldrop/Andrew W. Ertman, “Chlorothalonil - Two-Generation Reproduction Study in Rats” (1993). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: July 1, 2007. Debra Edwards, Director, Office of Pesticide Programs. [FR Doc. E7-13830 Filed 7-17-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260 and 278 [EPA-HQ-RCRA-2006-0097; FRL-8326-1] RIN 2050-AG27 Criteria for the Safe and Environmentally Protective Use of Granular Mine Tailings Known as “Chat” AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency (EPA or the Agency) is promulgating mandatory criteria for the environmentally protective use of chat in transportation projects carried out, in whole or in part, with Federal funds. Specifically, chat used in such transportation projects will be safe and environmentally protective if it is used in asphalt concrete, in slurry seals, microsurfacing, or in epoxy seals for anti-skid on bridge decking. Chat used in such transportation projects will also meet EPA's criteria if it is used in Portland cement concrete, flowable fill, stabilized base, chip seals, or as road base providing, on a case-by-case basis, either: Synthetic Precipitation Leaching Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the proposed material and the leachate testing results show that concentrations in the leachate do not exceed the Drinking Water Standards for lead and cadmium and the fresh water chronic National Recommended Water Quality Criterion for zinc of 120 ug/l; or EPA (or a State environmental Agency, if it chooses to do so) has determined, based on a site-specific risk assessment and after notice and opportunity for public comment, that the releases from the chat mixture in its proposed use will not cause an exceedance of the National Primary Drinking Water Standards for lead and cadmium in potential drinking water sources and the fresh water chronic National Recommended Water Quality Criterion for zinc of 120 ug/l in surface water. Furthermore, this rule also establishes a criterion that other uses of chat will be safe and environmentally protective and are acceptable if they are part of, and otherwise authorized by, a State or Federal response action undertaken in accordance with Federal or State environmental laws, with consideration of a site-specific risk assessment. This rule does not require that chat be sized (dry or wet) prior to its use, as long as this rule's criteria are complied with. EPA is also establishing recommended criteria as guidance on the environmentally protective use of chat for non-transportation cement and concrete projects. Finally, the Agency is establishing certification and recordkeeping requirements for all chat, except that under the jurisdiction of the U.S. Department of Interior, Bureau of Indian Affairs (BIA). The chat covered by this rule is from the lead and zinc mining areas of Oklahoma, Kansas and Missouri, known as the Tri-State Mining District. DATES: This final rule is effective on September 17, 2007. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of September 17, 2007. ADDRESSES: The public docket for this final rule, Docket ID No EPA-HQ-RCRA-2006-0097, contains the information related to this rulemaking, including the response to comment document. All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information may not be publicly available, *e.g.* , Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the EPA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the Public Reading Room is 202-566-1744, and the telephone number to make an appointment to view the docket is 202-566-0276. FOR FURTHER INFORMATION CONTACT: Stephen Hoffman, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC, 20460-0002, Mail Code 5306P; telephone number: 703-308-8413; fax number: 703-308-8686; e-mail address: *hoffman.stephen@epa.gov.* Additional information on this rulemaking is also available on the internet at *http://www.epa.gov/epaoswer/other/mining/chat/* . The contents of this final rule are listed in the following outline Contents of the Final Rule I. General Information A. Does This Rule Apply to Me? B. What Are the Statutory Authorities for This Final Rule? C. Definitions and Acronyms Used in the Rule II. Summary of This Rule III. Background Information IV. Rationale for This Rule and Response to Comments A. What Was the Process EPA Used to Develop This Action? B. What Criteria Are EPA Establishing for the Use of Chat? C. Relationship of This Rule to Other Federal Regulations and Guidance D. How Does This Rule Affect Chat Sales From Land Administered by BIA or Directly From Tribal Lands? E. How Does This Rule Affect CERCLA Liability, Records of Decision and Response Actions? F. How Does This Rule Affect the Use of Federal Funds Administered by the U.S. Department of Transportation for Transportation Construction Projects? V. Impacts of the Final Rule A. What are the Potential Environmental and Public Health Impacts From the Use of Chat in Transportation Construction Projects? B. What are the Economic Impacts? VI. State Authority VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. General Information A. Does This Rule Apply to Me? These criteria affect the following entities: aggregate, asphalt, cement, and concrete facilities, likely limited to the Tri-State Mining District. However, other types of entities not identified could also be affected—that is, the list is not intended to be exhaustive, but to provide a guide for readers regarding those entities that potentially could be affected by this action. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria of this preamble. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. What Are the Statutory Authorities for This Final Rule? Through Title VI, Section 6018 of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (HR 3 or “the Act”), Congress amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C. 6961 *et seq.* ) by adding Sec. 6006. This provision requires the Agency to establish safe and environmentally protective criteria (including an evaluation of whether to establish a numerical standard for concentrations of lead and other hazardous substances) for the use of granular mine tailings from the Tar Creek, Oklahoma Mining District, known as `chat,' in cement and concrete projects and in transportation construction projects that are carried out, in whole or in part, using Federal funds. Section 6006(a)(4) requires that any use of the granular mine tailings in a transportation project that is carried out, in whole or in part, using Federal funds, meet EPA's established criteria. In establishing such criteria, EPA is required to consider “the current and previous uses of granular mine tailings as an aggregate for asphalt, and any environmental and public health risks and benefits derived from the removal, transportation and use in transportation projects of granular mine tailings” carried out, in whole or in part, using Federal funds. EPA is also required to consult with the Secretary of Transportation, and other Federal agencies in developing these criteria. RCRA section 2002(a) grants the Agency broad rulemaking authority, providing that the Administrator is authorized to prescribe “such regulations as are necessary to carry out his functions under this chapter.” While this is a regulation promulgated under RCRA, the rule sets the criteria that must be complied with at transportation construction projects funded, in whole or in part, with Federal funds. The U.S. Department of Transportation

(DOT)has statutory responsibility over the dispersement of federal funds for transportation projects. Therefore, USDOT will make reference to this rule as one of the regulatory requirements it requires all states to adhere to as a condition of receiving Federal funds for transportation projects using chat. C. Definitions and Acronyms Used in the Rule • *Asphalt* —also known as asphalt cement, is liquid bitumen (heavy petroleum) used as the binder in cold, warm, and hot mix asphalt, chip seals, slurry seals, and microsurfacing. The term `asphalt' is sometimes used generically in place of cold, warm, or hot mix asphalt. • *Asphalt concrete* —a layer, or combination of layers, composed of a compacted mixture of an asphalt binder and mineral aggregate. • *Pozzolanic* —a siliceous material which when combined with calcium hydroxide in the presence of moisture exhibits cementitious properties. • *State or Federal response action* —State or Federal response action undertaken pursuant to applicable Federal or State environmental laws and with consideration of site-specific risk assessments. • *Raw chat* —unmodified lead-zinc ore milling waste that comes from the Tri-State Mining District. • *Washed chat* —lead-zinc ore milling waste that has been wet-screened to remove the fine-grained fraction and which is sized so as not to pass through a number 40 sieve (0.425 mm opening size) or smaller. • *Sized chat* —lead-zinc ore milling waste that has been wet-screened (washed) or dry sieved to remove the fine-grained fraction smaller than a number 40 sieve (0.425 mm opening size). Non-transportation cement and concrete projects uses are: —Construction uses of cement and concrete for non-residential structural uses limited to weight bearing purposes such as foundations, slabs, and concrete wall panels. Other uses include commercial/industrial parking and sidewalk areas. Uses do not include any residential use of cement or concrete ( *e.g.* , residential parking areas, residential construction, concrete counter tops). Transportation construction uses are: — *Hot mix asphalt* —a hot mixture of asphalt binder and size-graded aggregate, which can be compacted into a uniform dense mass. Hot mix asphalt also includes hot mix asphalt sub bases and hot mix asphalt bases. — *Portland cement concrete (PCC)* —pavements consisting of a PCC slab that is usually supported by a granular (made of compacted aggregate) or stabilized base and a sub base. In some cases, the PCC slab may be overlaid with a layer of hot mix asphalt. PCC uses also include bridge supports, bridge decking, abutments, highway sound barriers, jersey walls, and non-residential side walks adjacent to highways. — *Flowable fill* —a cementitious slurry consisting of a mixture of fine aggregate or filler, water, and cementitious materials which is used primarily as a backfill in lieu of compacted earth. This mixture is capable of filling all voids in irregular excavations, is self leveling, and hardens in a matter of a few hours without the need of compaction in layers. Most applications for flowable fill involve unconfined compressive strengths of 2.1 MPa (300 lb/in2) or less. — *Stabilized base* —a class of paving materials that are mixtures of one or more sources of aggregate and cementitious materials blended with a sufficient amount of water that result in the mixture having a moist nonplastic consistency that can be compacted to form a dense mass and gain strength. This class of base and sub base materials excludes stabilization of soils or aggregates using asphalt concrete or emulsified asphalt. — *Granular bases* —road base typically constructed by spreading aggregates in thin layers of 150 mm (6 inches) to 200 mm (8 inches) and compacting each layer by rolling over it with heavy compaction equipment. The aggregate base layers serve a variety of purposes, including reducing the stress applied to the sub grade layer and providing drainage for the pavement structure. The granular sub base forms the lowest (bottom) layer of the pavement structure and acts as the principal foundation for the subsequent road profile. — *Embankment* —a volume of earthen material that is placed and compacted for the purpose of raising the grade of a roadway above the level of the existing surrounding ground surface. — *Slurry seals* —a material composed of emulsified asphalt, aggregate, and mineral fillers, such as Portland cement or lime which is applied as a thin coating on top of asphalt or PCC road surfaces. — *Micosurfacing* —polymer-modified slurry seal. — *Cold mix asphalt* —an asphalt/aggregate mixture composed of binders, soaps, or other chemicals which allow its use when cold or warm. — *Epoxy seals* —the mixture of aggregate in epoxy binders. Epoxy seals are typically used as an anti-skid surface on bridge decking. — *Chip seals* —a material composed of aggregate placed on top of a layer of an asphalt or asphaltic liquid binder. The aggregate may be rolled into the binder. Abbreviations and Acronyms Used in This Document ANSI American National Standards Institute AASHTO American Association of State Highway and Transportation Officials ASR Alkali-Silica Reaction ASTM American Society for Testing and Materials ATSDR Agency for Toxic Substances and Disease Registry BDAT Best Demonstrated Available Technology BIA Bureau of Indian Affairs CAA Clean Air Act (42 USCA 7401) CERCLA Comprehensive Environmental Response Compensation and Liability Act (42 USCA 9601) CFR Code of Federal Regulations CWA Clean Water Act (33 USCA 1251) DOT Department of Transportation EO Executive Order EPA Environmental Protection Agency FHWA Federal Highway Administration FR Federal Register ICR Information Collection Request IEUBK Integrated Exposure Uptake Biokinetic (Model) MCL Maximum Contaminant Level (Safe Drinking Water Act) NIOSH National Institute for Occupational Safety and Health NPL National Priorities List ODEQ Oklahoma Department of Environmental Quality OMB Office of Management and Budget OSHA Occupational Safety and Health Administration OU University of Oklahoma OUs Operable Units PCC Portland cement concrete PEL Permissible Exposure Level ppmv parts per million by volume ppmw parts per million by weight Pub. L. Public Law RCRA Resource Conservation and Recovery Act (42 USCA 6901) ROD Record of Decision SMCL Secondary Maximum Contaminant Level (Safe Drinking Water Act) SPLP Synthetic Precipitation Leaching Procedure (EPA SW 846 Method 1312) SSL (Superfund) Soil Screening Level TCLP Toxicity Characteristic Leaching Procedure (EPA SW 846 Method 1311) TWA Time-Weighted Average USACE U.S. Army Corp of Engineers U.S.C. United States Code II. Summary of This Rule On April 4, 2006, EPA published a **Federal Register** notice (64 FR 16729) seeking comment on a proposed rule that would establish criteria for the safe and environmentally protective use of chat in transportation projects funded, in whole or in part, with Federal funds, as well as proposed guidance on the use of chat in non-transportation cement and concrete projects. Based on a request to extend the comment period, the Agency again sought comment on this proposal on May 19, 2006 (71 FR 29117). The purpose of the proposed rule was to establish criteria that would identify environmentally protective uses of chat in federally funded transportation projects. The Agency received many comments in response to its April 4 and May 19, 2006 notices. Numerous commenters generally supported the proposed rule, while other commenters suggested changes to the proposal. After considering all comments, we are finalizing the proposed rule with several significant modifications. The final rule, similar to the proposed rule, establishes criteria allowing the use of chat in federally funded transportation projects when used in asphalt concrete for roadway surfaces and in asphalt for road bases and sub bases. Upon consideration of the comments, the Agency is expanding its criteria for chat in federally funded transportation projects to include chat used in slurry seals, microsurfacing, epoxy seals, and cold and warm mix asphalt. However, a significant modification to the proposal is that before chat can be used in Portland cement concrete

(PCC)federally funded transportation projects, a person must show, on a case by case basis that:

(1)Synthetic Precipitation Leaching Procedure (SPLP, EPA SW-846 Method 1312) tests are conducted on the proposed material and the leachate testing results show that concentrations in the leachate do not exceed the National Primary Drinking Water Standards for lead and cadmium and the fresh water chronic National Recommended Water Quality Criterion for zinc of 120 ug/l; or

(a)or (b). Such response actions are undertaken with consideration of site-specific risk assessments. For example, unencapsulated uses of chat may be authorized in a State or Federal remediation action. This rule also retains the certification requirement, since the Agency believes that such notice is important for states and the public to know how and where chat is used in transportation. EPA believes that this rule will encourage the environmentally sound use of chat in transportation projects funded, in whole or in part, with Federal funds. III. Background Information 1. What Is Chat? Chat is the waste material that was generated from the extraction and beneficiation of lead/zinc minerals to produce lead/zinc concentrate in the Tri-State Mining District of Southwest Missouri, Southeast Kansas and Northeast Oklahoma. Chat is primarily composed of chert, a very hard rock. The primary properties that make chat useful in asphalt-based road materials, Portland cement concrete, and epoxies are grain size distribution, durability, non-polishing, and low moisture absorption. In 1980, Congress enacted the Solid Waste Disposal Act Amendments (Pub. L. 96-482) which added section 3001(b)(3)(A)(ii) (the Bevill Amendment) to RCRA. This section required the Agency to study extraction/beneficiation wastes and in 1989 the Agency promulgated a rule (54 FR 36592) which exempts extraction/beneficiation wastes from regulation under the RCRA Subtitle C hazardous waste regulations (see (40 CFR 261.4(b)(7)). Therefore, chat is a “Bevill exempt” waste and is not subject to regulation under RCRA Subtitle C. This exemption does not, however, affect CERCLA jurisdiction over chat, since chat contains hazardous substances, nor does it affect the jurisdiction of RCRA section 7003, as long as the chat is a solid waste. 2. What Is the Areal Scope for This Action? The Act directed EPA to develop criteria for chat from the Tar Creek, Oklahoma Mining District. However, there is no definition of the term “Tar Creek Oklahoma Mining District.” Available literature references the “Tar Creek Superfund site,” which is in Oklahoma, but the term “mining district” is only used in reference to the “Tri-State Mining District.” For purposes of this final rule, the areal scope includes chat originating from the Tri-State Mining District of Ottawa County, Oklahoma, Cherokee County of southeast Kansas, and Jasper, Newton, Lawrence and Barry Counties of southwest Missouri, regardless of where it is used. In 1979, the U.S. Bureau of Mines completed a study to identify all mined areas and mine-related hazards which confirmed that lead-zinc mining covers a portion of each of the States of Kansas, Missouri, and Oklahoma. This area is the same area known as the Tri-State Mining District. Chat located in this historical mining district is a product of similar mineralization processes that sets it aside from related lead-zinc mineralization districts elsewhere in the United States. The Tri-State mineralization is specifically associated with wall rock alteration into dolomite and microcrystalline silica (chert). The term chat is derived from the word “chert,” referring to the cherty wallrock found in this mining district. The lead/zinc ore and its related waste, chat, in this district also have a well defined lead to zinc ratio. For over one hundred years of activity ending in 1970, the Tri-State Mining District has been the source of a major share of all the lead and zinc mined in the United States. Surface piles of chat, as well as underground mining areas, extend uninterrupted across the Oklahoma-Kansas State line. In the proposal, the Agency did not include Lawrence and Barry counties in southwest Missouri as part of the areal extent of the rule, but requested comment on whether it would be reasonable to include them (see 71 FR 16732). Commenters requested that the Agency expand the scope of the rule to include these two counties in southwest Missouri. Based on communication with state regulatory officials in Kansas, Missouri, and Oklahoma and review of mineral geology studies, EPA concludes that there is no real factual distinction between chat derived from these three states, and believes that it is reasonable to apply this rule to the areal extent of all chat generated and currently located in the following counties: Ottawa county, Oklahoma, Cherokee county, Kansas, and Newton, Jasper, Lawrence and Barry counties in Missouri. 3. Are There Any Current Regulations of Asphalt, Portland Cement Concrete or Chat Washing Facilities? Based on the Agency's review of existing state and federal regulations, the Agency did not propose to apply any additional regulations on chat washing or hot mix asphalt and Portland cement concrete plants, although the Agency solicited comment on whether it would be prudent for this rule to apply additional controls, over those that currently exist, to address environmental releases from these types of facilities. 1 Specifically, at proposal, the Agency assessed existing regulations in Oklahoma, Kansas, and Missouri for hot mix asphalt plants and Portland cement concrete plants to determine whether those operations are appropriately regulated to address environmental releases for such facilities. (See memorandum entitled: *Evaluation of State Regulations* in the docket.) Those regulations set standards for point and fugitive air emission sources (see Kansas: K.A.R. 28-19-500, Missouri: 10 CSR 10-6.170, and Oklahoma: OAC 252:100-7/8/29) and also set requirements for water discharges from point source discharges (see Kansas: K.A.R. 28-16, Missouri: 10 CSR 20-6.200, and Oklahoma: OAC 252:606-5-5). In addition, Oklahoma, Missouri and Kansas all require that trucks transporting aggregate must be covered to reduce fugitive emissions and reduce damage to other vehicles from windblown debris. The Bureau of Indian Affairs

(BIA)also requires that trucks transporting chat from Tribal lands be covered to prevent blowing dust from transport. 1 It should be noted that the statute does not require the Agency to set criteria for facilities that prepare chat prior to its use, but restricts the activities for which the Agency is to establish criteria for the use of chat in transportation projects funded, wholly or in part, with Federal funds. Nevertheless, the Agency evaluated the potential for environmental releases from these types of facilities—chat washing, hot mix asphalt and Portland cement concrete plants as part of the rulemaking. The Agency also assessed existing regulations in Oklahoma, Kansas, and Missouri for chat washing facilities to determine whether chat “washing” operations are adequately managed. 2 There are two commercial chat washing facilities in the Tri-State area and both are located within the Tar Creek Superfund site. While the States do not have specific regulations applicable to chat washing facilities, these facilities are subject to State general fugitive air emissions and general storm water discharge regulations. These general State permits require that fugitive dusts and runoff be controlled in a fashion so that dusts and other pollutants do not leave the property line or the boundary of the construction activity. In addition, because the two chat washing facilities are located within the Tar Creek Superfund site, the Agency may rely on CERCLA authority to establish any additional conditions that are considered necessary to be safe and environmentally protective. 2 While EPA recognizes that some chat is washed or sized prior to being used, today's final rule does not require that chat be washed prior to its use. Therefore, imposing additional requirements for chat washing facilities would seem inappropriate. The BIA is also establishing air and water standards for chat washing facilities located on Tribal lands and lands administered by BIA. BIA's requirements include that the chat washing facility manage waste water discharges so that they do not exceed State standards, that fugitive dusts be controlled, and that fines are handled and disposed of so that they do not contaminate ground water. In addition, BIA requires all purchasers of chat from Tribal lands, or lands administered by BIA, to certify that the chat will be used in accordance with authorized uses set forth in EPA fact sheets and other guidance. (See report titled, *Chat Sales Treatability Study Workplan for the Sale of Indian-Owned Chat within the Tar Creek Superfund Site, Ottawa County, Oklahoma,* June 23, 2005.). A number of commenters noted their concern that existing regulations do not adequately control releases from these types of facilities. As noted above, the Agency reviewed existing state and Federal regulations of these facilities, and determined that they are in fact subject to regulation of their releases and that the existing regulations assure safe and environmentally protective conditions at these facilities—that is, hot mix asphalt plants, PCC plants and chat washing facilities. Therefore, the Agency is not promulgating additional controls for these facilities. 4. Are There Existing Criteria for the Use of Chat? As noted in a 2005 University of Oklahoma

(OU)report, the Oklahoma Department of Environmental Quality

(ODEQ)has determined that the following transportation uses of raw chat are inappropriate: Use in residential driveways and as gravel or unencapsulated surface material in parking lots, alleyways, or roadways (See *A Laboratory Study to Optimize the Use of Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report* ). ODEQ also identified the following non-transportation uses of raw chat that are deemed inappropriate for residential use: —Fill material in yards, playgrounds, parks, and ball fields —Playground sand or surface material in play areas —Vegetable gardening in locations with contaminated chat —Surface material for vehicular traffic (e.g., roadways, alleyways, driveways, or parking lots) —Sanding of icy roads —Sandblasting with sand from tailings ponds or other chat sources —Bedding material under a slab in a building that has underfloor air conditioning or heating ducts —Development of land for residential use ( *e.g.* , for houses or for children's play areas, such as parks or playgrounds) where visible chat is present or where the lead concentration in the soil is equal to or greater than 500 mg/kg unless the direct human contact health threat is eliminated by engineering controls ( *e.g.* , removing the contaminated soil or capping the contaminated soil with at least 18 inches of clean soil) EPA Region 6 also issued a Tar Creek Mining Waste Fact Sheet on June 28, 2002 that identified the following as acceptable uses of chat:

(1)Applications that bind (encapsulate) the chat into a durable product ( *e.g.* , concrete and asphalt),

(2)applications that use the chat as a material for manufacturing a safe product where all waste byproducts are properly disposed, and

(3)applications that use the chat as sub-grade or base material for highways (concrete and asphalt) designed and constructed to sustain heavy vehicular traffic. This fact sheet also incorporated the ODEQ list of unacceptable residential uses of chat. In addition, EPA Region 7 issued a Mine Waste Fact Sheet in 2003 that identified the uses of chat that are not likely to present a threat to human health or the environment. Those uses are:

(1)Applications that bind material into a durable product; these would include its use as an aggregate in batch plants preparing asphalt and concrete,

(2)applications below paving on asphalt or concrete roads and parking lots,

(3)applications that cover the material with clean material, particularly in areas that are not likely to ever be used for residential or public area development, and

(4)applications that use the material as a raw product for manufacturing a safe product. The fact sheet also lists mine waste

(chat)uses that may not be safe and environmentally protective and are similar to those listed by ODEQ and the Region 6 fact sheet. However, the Region 7 fact sheet also lists use as an agricultural soil amendment to adjust soil alkalinity as a use that may not be safe and environmentally protective. This rule is more restrictive than the 2002/2003 Region 6 and 7 fact sheets. Therefore, the Agency is issuing new fact sheets on the use of chat from the Tri State Mining District in transportation construction projects funded, in whole or in part, with Federal funds and in non-transportation non-residential uses of chat. The new fact sheets are consistent with this rule. The fact sheets are available at *http://www.epa.gov/epaoswer/other/mining/chat/* . 5. Physical and Chemical Characteristics of Chat This section provides information on the physical characteristics, such as hardness, soundness (durability), gradation, shape and surface texture, and chemical characteristics, such as the leaching potential of chat. Physical Characteristics In an OU study ( *A Laboratory Study to Optimize the Use of Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report (August 2005)* ), the specific gravity of the raw chat was found to be 2.67, which is similar to some commonly used aggregates, such as limestone and sandstone. According to an ODEQ study ( *Summary of Washed and Unwashed Mining Tailings

(Chat)from Two Piles at the Tar Creek Superfund Site, Ottawa County Oklahoma, Revised June 2003* ), chat consists of materials ranging in diameter from 15.875 mm ( 5/8 inch) to less than 0.075 mm (the size fraction that passes the No. 200 sieve). Since raw chat is a crushed material from mining operations, raw chat particles have fractured faces. Raw chat also has numerous inter-granular voids in the loose aggregate form. The more angular the aggregate the higher the amount of voids. The uncompacted void content or the fine aggregate angularity of raw chat was found to be 46%. This value exceeds the higher fine aggregate angularity required by most State DOTs. Raw chat is harder than some other aggregates, such as limestone. The L.A. abrasion value (determined by the Test for Resistance to Degradation of Aggregate by Abrasion and Impact in the Los Angeles Abrasion Machine) of raw chat was found to be 18% which is lower than that of limestone (23%) used in the OU study. This makes chat a good material in road surfaces since it does not wear down as fast as other aggregates. Cubical shape is another desirable property of a good aggregate. The coarse aggregate in raw chat (particles retained on a 4.75 mm (#4) sieve) has less than 5% flat or elongated particles. Therefore, chat is viewed as a desirable aggregate material. State DOTs specify minimum aggregate durability indices depending on the type of road surface. In the OU study, the aggregate durability index of raw chat was found to be 78%. The insoluble residue of raw chat was found to be 98%. Oklahoma DOT has established a 40% insoluble requirement for combined aggregates used in a surface layer of hot mix asphalt, for the purpose of skid resistance. Surface treatments, like microsurfacing, have higher insoluble residue requirements. Thus, the use of insoluble aggregates like chat in hot mix asphalt surface mixes and other surface treatments can improve the skid resistance and safety of pavements. State DOTs also specify aggregate requirements for hot mix asphalt and PCC. Most State DOTs, including Kansas, Oklahoma and Missouri, have adopted aggregate standards developed by the American Association of State Highway and Transportation Officials (AASHTO). According to AASHTO, the 0.075 mm (#200) sieve size is the dividing line between sand-size particles and the finer sized particles defined as silts and clays. These finer particles often adhere to larger sand and gravel particles and can adversely affect the quality of hot mix asphalt and Portland cement concrete. The AASHTO standards for Fine Aggregate for Bituminous Paving Mixtures (M 29-03) and Fine Aggregate for PCC (M 6-03) specify limits for the amount of aggregate, on a percent mass basis, in hot mix asphalt and Portland cement concrete according to aggregate size and gradation. The aggregate sizes included in the AASHTO standards range from .075 mm to 9.5 mm which is within the range of particles found in raw chat. The AASHTO standards do not preclude the use of fine chat particles in hot mix asphalt or PCC. Depending on the designated grading, however, AASHTO limits particles finer than sieve size #50 in the range of 7% to 60% for aggregate in asphalt. Fine aggregate for use in concrete is limited by the States of Oklahoma and Missouri to between 5% and 30% for particles less than sieve size #50, while the corresponding values in Kansas are 7% to 30%. Therefore, chat used in asphalt or PCC must meet sizing specifications. This can be accomplished either by the raw chat meeting these specifications as is, or mixing the raw chat with other aggregates, by dry sizing, or by washing (wet sizing) the chat. Current law requires that the chat used as an aggregate in transportation projects meet existing State Department of Transportation or Federal Highway Administration material specifications, which assure that the road surface, composed of hot, warm or cold mix asphalt, concrete or epoxy, is durable and will not degrade prematurely. As discussed below, in light of these existing requirements, EPA concluded that it was not necessary to establish any additional material specifications for the use of chat as an aggregate in federally funded transportation projects to ensure that when chat is used, it will be safe and environmentally protective. Chemical Characteristics Dames and Moore, 1993 and 1995; *Sampling and Metal Analysis of Chat Piles in the Tar Creek Superfund sites* for the Oklahoma Department of Environmental Quality, 2002, and Datin and Cates; *Summary of Washed and Unwashed Mining Tailings

(Chat)from Two Piles at the Tar Creek Superfund Site* , Ottawa County Oklahoma, Revised June 2003, provide data on metals concentrations in washed and unwashed (or raw) chat. The Dames and Moore study indicated that total lead concentrations in the raw chat ranged from 100 mg/kg to 1,660 mg/kg, while the Datin and Cates study noted that mean total lead concentrations from the raw chat piles located throughout the Tri-State area ranged between 476 to 971 mg/kg. The AATA International, Inc. December 2005; *Draft: Remedial Investigation Report for Tar Creek OU4 RI/FS Program* found that the concentration of lead in the raw chat ranged from 210 mg/kg to 4,980 mg/kg, with an average of 1,461 mg/kg; cadmium ranged from 43.1 mg/kg to 199.0 mg/kg, with an average of 94.0 mg/kg; and zinc ranged from 10,200 mg/kg to 40,300 mg/kg, with an average of 23,790 mg/kg. These studies show that as chat sizes become smaller, their metals content increases. The cited Datin and Cates report, *Summary of Washed and Unwashed Mining Tailings

(Chat)from Two Piles at the Tar Creek Superfund Site, Ottawa County Oklahoma* , Revised June 2003, shows that total metals testing of wet screened material (larger fractions) resulting from chat washing have lead concentrations which range from 116 to 642 mg/kg, a range much lower than raw chat. Therefore, the data show that chat washing generates chat aggregate (greater than sieve size #40) with considerably lower metals concentrations than raw chat. 3 3 The Datin and Cates report also provides TCLP testing data that indicates the dry sieve sizes greater than #40 would not exceed 5 mg/l, as well as data on wet screened material (larger fractions) that also shows that the leaching potential of this material is below 5 mg/l (1.028 to 3.938 mg/l). 5 mg/l is the level of lead that defines whether a waste is hazardous under RCRA subtitle C. Thus, this is another indication that the larger sizes of chat have lower lead concentrations than do smaller sized chat particles. (Note: As indicated earlier, chat is considered a Bevill mining waste and is thus, exempt from regulation under RCRA Subtitle C. However, we are using the TCLP leachate value for lead simply as a comparative measure to evaluate the leaching characteristics of chat.) 6. What Are the Environmental and Health Effects Associated With Pollutants Released From Raw Chat? The Tri-State Mining District includes four National Priorities List

(NPL)Superfund sites that became contaminated from the mining, milling, smelting, and transportation of ore and the management practices for chat. These sites are located in Tar Creek in Ottawa County, Oklahoma, Cherokee County in southeast Kansas, and in Jasper and Newton Counties in southwest Missouri. Superfund cleanup activities related to the millions of tons of mining waste that were deposited on the surface of the ground at these sites have been designated as Operable Units (OUs). OUs are groupings of individual waste units at NPL sites based primarily on geographic areas and common waste sources. Certain uses of raw chat have caused threats to human health and the environment as a result of the concentrations of lead, cadmium and zinc present in the chat. 4 Evaluation of raw chat also indicates that this waste in most unencapsulated uses has the potential to leach lead into the environment at levels which may cause threats to humans ( *i.e.* elevated blood lead concentrations in area children). Such threats have been fully documented in Records of Decision

(RODs)for the OUs at these NPL sites (See Tri-State Mining District RODs in the docket to this action). Copies of Site Profiles and RODs can be searched at: *http://www.epa.gov/superfund/sites/rods/index.htm* . 4 Information regarding the specific threats to human health from lead, cadmium and zinc can be found in the *Agency for Toxic Substances and Disease Registry (ATSDR) Fact Sheet for Lead* , September 2005, the *ASTDR Fact Sheet for Cadmium* , June 1999 and the *ATSDR Fact Sheet for Zinc* , September 1995, all of which are available in the Docket to today's final rule. IV. Rationale for This Rule and Response to Comments A. What Was the Process EPA Used to Develop This Action? In developing the proposed rule, the Agency initially reviewed information concerning the environmental effects of the improper placement and disposal of chat found in the RODs cited above for the four NPL sites located in the Tri-State Mining District (Tar Creek, Jasper County, Cherokee County, Newton County). The Agency then reviewed reports which identified current or past uses of chat, primarily studies prepared to support Oklahoma Governor Keating's Taskforce (Governor Frank Keating's Tar Creek Superfund Task Force, *Chat Usage Subcommittee Final Report* , September 2000) and research on chat uses conducted by OU ( *A Laboratory Study to Optimize the Use of Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report August 2005* ), as well as interviewed the principal authors of the OU studies to further evaluate their findings. Additionally, the Agency interviewed representatives from the Departments of Transportation in Oklahoma, Kansas, and Missouri and met with the U.S. Department of Transportation, Federal Highway Administration to discuss the use of aggregate substitutes in road surfaces and relied on the joint EPA/FHWA document of the use of wastes in highway construction [ *User Guidelines for Waste and Byproduct Material in Pavement Construction* , FHWA, 1997 ( *http://www.rmrc.unh.edu/Partners/UserGuide/begin.htm* )]. Furthermore, EPA met with the BIA to discuss BIA requirements for the sale of chat on Tribal lands. The Agency also conducted a series of interviews with the environmental regulatory agencies in the three involved States to further identify acceptable versus unacceptable uses of chat. Moreover, the Agency conducted interviews with companies which either used chat at that time or had used chat previously. As part of this effort, EPA representatives visited the Tri-State area to observe the condition of chat piles and confirm the location of chat washing and asphalt companies in the area. Finally, the Agency has communicated with the tribal members in the Tri-State area to inform them about this action and seek information about current uses. Based on our review of the reports and interviews noted above, the Agency published a Proposed Rule on April 4, 2006, in which we specifically solicited comment on a number of issues (see 64 FR 16729). The Agency received approximately 20 comments on the proposal. The Agency's response to the comments received can be found in the docket for this rule (see Response to Comments Document). In addition, the Agency conducted an external Peer Review of the risk screen conducted for the proposal. The Peer Review Panel submitted comments to the Agency and based on those comments, the Agency conducted an additional risk screen of chat dusts from milling of road surfaces containing chat to determine if such an activity presented a risk to human health and the environment. Both the original risk screen and subsequent risk evaluations are noted in the risk section of the preamble to this final rule, and are also in the Docket to this final rule. The Agency also met with representatives from the Department of Transportation to seek their input on a number of issues raised by commenters. Finally, the Agency consulted with the Tribal interests to assure that their comments were fully understood by the Agency. Based on the additional work noted above, as well as responding to comments, the Agency is today finalizing the chat rule. B. What Criteria Are EPA Establishing for the Use of Chat? 1. Transportation Construction Uses Transportation construction uses of chat addressed in this final rule are those construction activities that occur as part of transportation construction projects that are funded, wholly or in part, with Federal funds. The Agency has evaluated all the transportation construction uses and has concluded that chat used in hot, warm, or cold mix asphalt, slurry seals, microsurfacing and in epoxy seals, or other uses of chat that are evaluated on a case-by-case basis will be safe and environmentally protective. a. What Is the Final Action? This final rule establishes criteria that chat used in transportation construction projects that are funded, wholly or in part, with Federal funds, must meet as a condition of receiving Federal transportation funding. Specifically, those criteria define the following uses to meet the statutory standards: chat that is used in asphalt concrete, slurry seals, microsurfacing, or epoxy seals. The use of chat also meets EPA's criteria if it is used in PCC, stabilized road base, granular road base, flowable fill, and in chip seals, provided that on a case-by-case basis:

(2)EPA (or a State environmental Agency, if it chooses to do so) has determined, based on a site-specific risk assessment and after notice and opportunity for public comment, that the releases from the chat mixture in its proposed use will not cause an exceedance of the National Primary Drinking Water Standards for lead and cadmium in potential drinking water sources and the fresh water chronic National Recommended Water Quality Criterion for zinc of 120 ug/l in surface water. EPA has also established a criterion that other chat uses will be safe and environmentally protective if they are part of, and otherwise authorized by a State or Federal response action undertaken in accordance with Federal or State environmental laws. Such response actions are undertaken with consideration of site specific risk assessments. In addition, for all chat used in transportation construction projects that are funded, in whole or in part, using Federal funds that is not subject to the BIA Chat Use Certification requirements described in Section IV.B1, the Agency is establishing a certification requirement similar to that required by BIA. Specifically, any acquirer of the chat must submit a signed, written certification that the chat will be used in accordance with EPA's criteria. The certification will also include the location of origin of the chat and the amount of chat acquired. The certification must be provided to the environmental regulatory agency in the State where the chat is used, except for chat acquired on lands administered by the BIA which is subject to the BIA certification requirements. The Agency is also requiring that if the acquirer sells or otherwise transfers the chat, the new owner of the chat must also submit a signed, written certification as described in this section. Most commenters did not support the certification requirement, because they believe that it would increase the cost of using chat. As noted earlier, BIA has established a chat sales program affecting chat sales from tribal lands. That program includes a certification requirement similar to that found in this rule. The Agency believes that certification is necessary to assure that chat users comply with today's criteria, as well as serving as a means to inform State environmental agencies about the use of chat in their state. The Agency has reviewed the burden on industry to fill out and maintain the certification records and does not find that such a requirement is burdensome. Moreover, the Agency believes that the certification requirement will provide important information to state environmental agencies to ensure that the chat is used as required under this rule. This rule also requires that chat users maintain records. The Agency is requiring that the acquirer, or any other person that receives a copy of the certification, maintain a copy of the certification in its files for three years following transmittal to the State environmental regulatory agency. If the use is based on a case-by-case basis, the acquirer must maintain copies of any SPLP leachate testing results or any site-specific risk assessment for three years. b. What is the rationale for the Rule? The Agency is basing this action on our review of various studies and data that show that certain uses of chat are safe and environmentally protective. i. Hot Mix Asphalt There are a number of factors which lead us to conclude that chat used in hot mix asphalt is safe and environmentally protective: Several studies have been conducted on the use of chat in hot mix asphalt. The most comprehensive study was conducted by the OU School of Civil Engineering and Environmental Science. OU published their findings in a report titled, *A Laboratory Study to Optimize the Use of Raw Chat in Hot Mix Asphalt for Pavement Application: Final Report* (August 2005). OU tested the durability and leaching potential of a variety of mixtures of hot mix asphalt with raw chat for road surfaces and for road bases. In addition, OU milled (sawed) samples to simulate weathering. The Agency relied on these findings as one of the principal sources of data supporting the use of chat in hot mix asphalt road surfaces and asphalt road bases. The OU study also confirms the findings of an earlier study conducted by the U.S. Army Corp of Engineers ( *Tar Creek Superfund Site, Ottawa County, Oklahoma, Final Summary Report: Chat—Asphalt Paved Road Study* USACE—Tulsa District, February 2000). Specifically: • Comparison of the Synthetic Precipitation Leaching Procedure

(SPLP)results of milled (weathered) chat asphalt samples in the OU study with the National Primary and Secondary Drinking Water Standards ( *www.epa.gov/safewater/mcl.html* ), without dilution and attenuation, show that milled surface and road base mixtures did not exceed the primary drinking water standard for lead 5 (0.015 mg/l) or cadmium (0.005 mg/l). The OU results also show that milled asphalt road bases and surfaces did not exceed the secondary drinking water standard for zinc (5 mg/l). 6 5 The National Primary Drinking Water Regulations set a Maximum Contaminant Level Goal of zero and a Treatment Technique action level of 0.015mg/l for lead. 6 Several hot mix asphalt samples were also tested in the OU study using the Toxicity Characteristic Leaching Procedure (TCLP). For surface samples, TCLP average concentrations for lead ranged from <0.005 mg/l to a high of 0.46 mg/l. TCLP average concentrations for cadmium ranged from <0.010 mg/l to 0.223 mg/l and zinc concentration averages ranged from 11.3 mg/l to 28.53 mg/l. Road base samples usually have higher metals concentrations than do surface samples. For road base samples, average TCLP lead concentrations ranged from 0.069 mg/l to 2.008 mg/l, while average TCLP cadmium concentrations ranged from 0.011 mg/l to 0.087 mg/l and average TCLP zinc concentrations ranged from 19.9 mg/l to 41.33 mg/l. • The TCLP test was designed as a screening test to simulate leaching of materials in a municipal solid waste landfill. The SPLP test is also a screening test to simulate leaching of materials when exposed to acid rain. It is highly unlikely that road surfaces would be exposed to leaching conditions found in municipal solid waste landfills. Therefore, the Agency believes that of these two tests, the SPLP tests are likely to better mimic the leaching potential of such mixtures when they are to be used in road construction. • The OU study tested unweathered and milled samples. The Agency believes milled samples represent worst case scenarios because milling exposes more surface area to leaching. • In a dissertation submitted to the University of New Hampshire titled, *Contributions to Predicting Contaminant Leaching from Secondary Material Used in Roads,* Defne S. Apul, September 2004, the author noted that if pavement is built on highly adsorbing soils, the concentrations of leached contaminants reaching groundwater are more than several orders of magnitude lower than the MCLs. The ODEQ report entitled, *Summary of Washed and Unwashed Mining Tailings

(Chat)from Two Piles at the Tar Creek Superfund Site, Ottawa County Oklahoma,* Revised June 2003, also evaluated leachate from asphalt containing chat removed from the Will Rogers Turnpike located near Quapaw, Oklahoma. This evaluation was conducted to determine if asphalt concrete containing chat that is removed at the end of its useful life poses contamination threats from metals leaching into the environment. TCLP results for lead ranged from less than 0.050 mg/l to 0.221 mg/l. There are no SPLP test data in this report. However, based on best professional judgment and review of TCLP versus SPLP results, EPA believes that if SPLP tests were conducted, there would be a reduction in lead concentrations of approximately one order of magnitude as compared to the results of TCLP tests. Therefore, we believe that SPLP results would not exceed the MCL for lead. Based on these results, EPA does not believe the disposal of chat asphalt should present risks to the environment. The Agency sought comment on whether data was available which would further clarify whether the leachate potential from end of life use of chat in asphalt presented any threats. The Agency did not receive any comments or information that disproves the Agency's contention that it is unlikely that end of life chat asphalt will adversely affect the environment. Finally, the Peer Review Panel that reviewed and commented on the risk screen for the proposed rule concluded that the use of chat in hot mix asphalt road surfaces and in asphalt road bases are safe and environmentally protective. The Agency, therefore, concludes that the use of chat in hot mix asphalt for pavement (which accounts for about 95% of the current chat usage), asphalt base, and asphalt sub base are safe and environmentally protective. EPA does not believe that it is necessary to establish specifications of what constitutes “hot mix asphalt” because transportation construction uses are required to comply with Federal and State Department of Transportation material specifications. These specifications delineate requirements which ensure that when chat is used in hot mix asphalt, the resulting product will be structurally stable. It is recommended that chat users first determine if the proposed use meets State or Federal DOT materials specifications, since adherence to them is separately required under current law. ii. Slurry Seal, Microsurfacing, Warm Mix Asphalt, Cold Mix Asphalt, and Epoxy Seal While the proposal limited the use of chat as a direct ingredient in hot mix asphalt (including use as road pavement, asphalt base and asphalt sub base), many commenters requested that the Agency expand the scope of the criterion to include other road surface uses associated with asphalt that they believed retard the leaching of metals in chat in the same manner as does hot mix asphalt, including slurry seals, microsurfacing, cold mix asphalt, epoxy seals and chip seals. Commenters did not provide data to support their assertions. The Agency reviewed published information regarding the binding and durability characteristics of these uses and found that, except for chip seals, they would retard the leaching of metals in the same manner as hot mix asphalt. To further confirm this information, we met with Department of Transportation officials to determine which of these applications, if any, do in fact encapsulate chat similarly to hot mix asphalt. Based on those discussions and our review of published information, the Agency's criteria includes the use of chat in slurry seals, microsurfacing, warm mix asphalt, cold mix asphalt, and epoxy seals as safe and environmentally protective in transportation construction projects that are carried out in whole, or in part, using Federal funds, but does not include the use of chat in chip seals. Specifically: • Slurry seals and microsurfacing involve the application of a mixture of asphalt, chemical binders, petroleum liquids and aggregate on the top surface of roads. This “resurfacing” meets a number of needs, including repairing fine fractures in the road surface, extending the life of the road, and improving skid resistance. EPA reviewed literature on these uses and found that these uses have the same engineering characteristics as hot mix asphalt. EPA also met with the FHWA, U.S. DOT to determine if microsurfacing and slurry seals retard the leaching of metals in the same manner as hot mix asphalt. FHWA indicated that slurry seals and microsurfacing would bind metals in the same manner as hot mix asphalt and would result in similar leaching results. Based on this conclusion and our review of the literature, the Agency today views the use of chat in slurry seals and microsurfacing as safe and environmentally protective. • As part of EPA's discussions with FHWA, we also discussed the ability of warm mix asphalt and cold mix asphalt to encapsulate and bind chat. Warm mix asphalt is a combination of asphalt, asphalt emulsions, paraffin or esterfied wax, and mineral additives that allow the materials to be worked at temperatures much lower than hot mix asphalt. Cold mix asphalt is a combination of asphalt, petroleum liquids, soaps, and other chemicals which allow the materials to be worked with when cold. FHWA confirmed that warm and cold mix asphalt would encapsulate chat in the same manner as hot mix asphalt, and thus, would likely result in similar leaching results. Based on Agency conversations with FHWA and our review of the literature, the Agency also views the use of chat in warm and cold mix asphalt as safe and environmentally protective. • EPA also discussed the use of epoxy binders on bridge decks with FHWA. Commenters and one of the chat washing companies noted that some chat is sold to companies which mix chat with epoxy binders for use as an anti-skid coating for highway bridges. EPA evaluated the engineering durability of these epoxies and found that they are equal to or are more durable than asphalt. FHWA also confirmed that the use of epoxies would encapsulate chat equally to the binding found with asphalt, and thus, would result in similar leach results. Based on this conclusion, the Agency today views the use of chat in epoxy binders for anti-skid purposes as safe and environmentally protective. In conclusion, the use of chat in hot mix asphalt, slurry seals, microsurfacing, warm mix asphalt, cold mix asphalt, or epoxy seals in transportation construction projects funded, in whole or in part, with Federal funds is safe and environmentally protective. Such uses do not require approval from EPA prior to their use, as long as certification and recordkeeping requirements are met. iii. Concrete, Flowable Fill, Granular Road Base, Stabilized Road Base and Chip Seals and Conditions for Use This rule regarding the use of chat in concrete pavement has changed from that presented in the April 2006 proposal and this rule sets additional requirements on chat used in PCC. In particular, the proposed rule allowed chat used as an aggregate in PCC without any testing or other requirements. The Agency proposed the use of chat in PCC based on the following data and information: • An undated OU Surbec-Art Environmental study 7 and a 2000 OU study 8 conducted the only known assessments of total metals content and TCLP testing of concrete matrices mixed with raw chat. The 2000 OU results are also presented in the 2005 OU study. The results from those two studies are presented in the following Table: 7 *Preliminary Report on the Findings of Environmental and Engineering Tests Performed on Mine Residual Materials from Ottawa County, Oklahoma.* 8 *Development of Holistic Remediation Alternatives for the Catholic 40 and Beaver Creek.* S1 Total (mg/kg) TCLP (mg/l) S2 Total (mg/kg) TCLP (mg/l) C40 Total (mg/kg) TCLP (mg/l) Lead 178 0.92 379 0.17 150 1 Cadmium R 30 0.09 R 35 0.12 35 0.1 Zinc 4200 0.23 4400 0.16 4100 R rounded to nearest whole number. • While not a direct measure of the leaching potential of chat contained in PCC, waste stabilization technologies and their effectiveness are well defined in the Agency's *Final Best Demonstrated Available Technology

(BDAT)Background Document for Universal Standards, Volume A, July 1994 and Proposed Best Demonstrated Available Technology

(BDAT)Background Document for Toxicity Characteristic Metal Wastes D004-D011, July 1995.* One of those technologies is stabilization or encapsulation of the waste in a cement matrix, to reduce the mobility of the metals in the waste. That is, the metals are chemically bound into a solid matrix that resists leaching when water or a mild acid comes into contact with the waste. The Agency evaluated contaminant levels in unstabilized versus stabilized wastes to determine the reduction in mobility of metals, including lead and cadmium, when those wastes were stabilized in a cement matrix. These results indicate that stabilization with cement generally reduced lead and cadmium mobility by two to three orders of magnitude ( *see* Table A4 of the July 1994 document cited above). However, the Peer Reviewers and commenters who reviewed and commented on the risk screen analyses to the proposed rule raised concerns with the lack of data presented on the stabilization of chat in concrete. Specifically, the Peer Reviewers indicated that there were only three samples analyzed and that given the limited data, it was not possible for them to determine if risks existed from the use of chat in concrete. While the Peer Reviewers noted that it was likely that the concrete bound the metals in a similar fashion as asphalt, they also did not believe there was enough data or information to reach a definitive conclusion. Some commenters also argued with the lack of leaching data for chat in PCC and questioned whether the Agency has sufficient information to finalize the proposal. Other commenters also noted that there were significant differences between stabilizing high metal bearing wastes with cement and the mixing of chat into PCC pavement. Commenters indicated that from a risk standpoint, concrete road surfaces after aging contain fine surface fractures that would allow rain water to percolate through the surface into groundwater. The Agency acknowledges these differences. Commenters also noted that it was unlikely that chat would be used in concrete pavement since it can be a poor performing aggregate when used in PCC due to potential alkali-silica reaction

(ASR)and freeze/thaw durability issues. This is the reason that chat is not an approved PCC aggregate by Oklahoma DOT. At proposal, the Agency also evaluated highway design specifications; *i.e.* , layering of compacted material and the movement of water through concrete (hydraulic conductivity, 9 ) and initially thought that such designs in general retard the movement of rainwater through concrete and into groundwater. Commenters questioned this conclusion. As a result, the Agency met with the FHWA to determine how extensively water flowed across and through concrete pavements. FHWA indicated that there is considerable water flow through concrete pavement either through flow out of the joints or cracks, or through flow from the shoulders downward into the base. Based on Agency discussions with FHWA, the Agency no longer believes that such designs in general retard the movement of rainwater through concrete. 9 Acording to the Portland Cement Association, the hydraulic conductivity of a typical Portland cement concrete is 1 × 10 −1 cm/sec. Commenters also requested that the rule allow the use of chat in flowable fill. However, commenters did not provide information to support this request. While flowable fill involves the use of a pozzolanic material (cement), the ability of flowable fill to bind chat is unclear because flowable fill uses cement in amounts as little as 3 to 5 percent by weight. Therefore, the Agency does not have sufficient information to allow this use without additional information or setting additional conditions. In addition, commenters requested that the rule allow the use of chat as granular road base. Such bases are typically constructed by spreading aggregates in thin layers and compacting each layer to reduce the stress applied to the sub grade layer and providing drainage for the pavement structure. The Agency acknowledges that some chat can meet state or Federal materials specifications for this use. These commenters did not, however, provide any information to support this request. As noted above, some washed chat has significantly lower lead concentrations than raw chat. However, as FHWA notes, highway designs retard some, but not all of the water flowing across and into ground water. Such water movement could leach metals from the chat road base into ground water. Because the Agency did not receive additional information on the leaching characteristics of this use, the Agency is unable to allow it without additional information or setting additional conditions. Still other commenters requested that the rule allow the use of chat in stabilized base. Stabilized base uses chat mixed with cement or other pozzolanic materials to increase their bearing weights. This additional material should reduce the mobility of the metals. However, the stabilized road base may use cement or other materials in amounts corresponding to 4 to 6 percent by weight which is less than that used in PCC. The commenters did not provide information to support this request. While some binding of metals is likely to occur, the Agency does not have sufficient information to allow this use without additional information or setting additional conditions. Finally, at proposal, the Agency did not include an evaluation of the use of chat in chip seals. Commenters requested that the rule allow the use of chat in chips seals. These commenters did not, however, provide information to support this request. Chip seals involve application of an asphalt liquid on top of an existing road surface. After the application of the asphalt liquid, an aggregate (such as chat) is placed on the asphalt liquid and may then be rolled into the liquid. It is possible that several applications can be applied. In some circumstances, the aggregate layer is coated with asphalt liquids. EPA met with the FHWA to determine if chip seals were generally viewed as being able to retard the leaching of metals in the same manner as hot mix asphalt. FHWA indicated that under most circumstances, asphalt used in chip seals did not always fully coat chat particles, and chat could be released into the environment. Given the concerns raised by FHWA and the lack of data on this use, the Agency concludes that it does not have sufficient information to allow the use of chat in chip seals without additional information or setting additional conditions. A number of commenters also noted that some washed chat does not test hazardous under the TCLP and that restricting all uses of raw chat, or encapsulated uses where leach data are not available, was overly restrictive. 10 The Agency has reviewed the TCLP/SPLP test data of raw chat and recognizes that some washed chat has significantly lower lead and zinc concentrations than raw chat. Nevertheless, the Agency remains concerned that the use of raw chat or chat mixed with other materials could pose risks to human health and the environment, based on the physical and chemical characteristics of the material, as well as the history of its use. 10 While the Agency is not requiring that chat be washed or dry sized prior to being used, the rules also do not prevent a person from washing or dry sizing chat before it is used either directly or in combination with another material. After careful evaluation of the comments received and the report from the Peer Reviewers, the Agency believes that the limited amount of leaching data on chat used in PCC, flowable fill, granular road base, stabilized road base, and chip seals do not provide enough support to determine that these uses of chat will be safe and environmentally protective. In the proposal, the Agency requested comment on whether there was a need for leachate testing of chat used in hot mix asphalt or in PCC ( *see* 54 FR 16738). Most commenters noted that the use of chat in hot mix asphalt was protective and that a requirement of additional SPLP testing was not warranted, however, they did not provide information to support this position. Nevertheless, as already discussed, the Agency believes there are sufficient data, particularly that provided in the 2005 OU study, to support its finding that chat used in hot mix asphalt, as well as warm mix asphalt, cold mix asphalt, slurry seals, microsurfacing, and in epoxy seals will be safe and environmentally protective without the need for further leachate testing. Other commenters, while they did not call for specific leachate testing of chat used in PCC, did raise concerns as to whether there were sufficient data to reach the conclusion that chat used in PCC or other uses was protective. The Agency agrees that insufficient data exist to conclude that the use of chat in PCC would be safe and protective. Therefore, the Agency has concluded that additional information, either through the use of SPLP testing or through a site-specific risk assessment, is necessary to be able to conclude that the use of chat in PCC, as well as flowable fill, granular road base, stabilized road base, and chip seals would meet the statutory standards. Specifically, EPA has established a criterion defining the use of chat in PCC, flowable fill, granular road base, stabilized road base, and chip seals as safe and environmentally protective if, on a case-by case basis, either:

(2)EPA (or a State environmental Agency, if it chooses to do so) has determined, based on a site-specific risk assessment and after notice and opportunity for public comment, that the releases from the chat mixture in its proposed use will not cause an exceedance of the National Primary Drinking Water Standards for lead and cadmium in potential drinking water sources and the fresh water chronic National Recommended Water Quality Criterion for zinc of 120 μg/l in surface water. 11 It should be noted that this case-by-case showing does not require public notice and comment. If a chat user chooses to conduct SPLP leachate testing and the results indicate that they do not exceed the standards noted above, the user does not need to submit the data to EPA (or a state, if it chooses to do so) for review and approval. However, the regulation requires that the user submit a certification statement to the environmental regulatory agency in the State where the chat is acquired and maintain copies of the SPLP testing results for a period of three years. If a chat user chooses to prepare a site specific risk assessment, the assessment must be submitted to EPA, or the State environmental agency, at the State's option, prior to use. EPA or the State environmental agency will review the site-specific risk assessment and determine, after notice and comment, if the use is safe and environmentally protective (see Section iii c below). After EPA or the State makes its determination, the user will still be required to meet the certification and recordkeeping requirements described in Section IV. B. 1. of this final rule. iv. Sizing of Chat Prior to Use Finally, this final rule is not requiring that chat be sized before it is used because chat used in transportation construction projects must meet material specification standards established by either the State or Federal DOT. Those specifications set their own size standards which can be met in a variety of ways, such as by sizing chat or by blending chat with other sized aggregate. Since existing specifications address the sizing issue, this rule need not do so. However, some commenters recommended that the Agency allow any use of sized chat since it has lower lead concentrations than raw chat. Studies of the lead concentrations found in raw chat piles indicate that those concentrations vary from pile to pile. Data indicates that particles finer than sieve size #40 in raw chat tend to have a TCLP for lead of greater than 5 mg/l, while larger particles in the raw chat tend to have a TCLP for lead of less than 5 mg/l. While the Agency acknowledges these results, commenters did not provide information showing a lack of risks from other uses of washed chat not covered by this rule. As a result, the Agency is unable to allow these other uses unless the user can show the use is protective through a case-by-case demonstration as discussed previously. v. Use of the SPLP Versus the TCLP EPA developed the TCLP as a tool to predict the leaching potential of constituents from waste in a municipal solid waste landfill. The TCLP method is used to determine if a waste is hazardous under 40 CFR 261.24 (see the Toxicity Characteristic rule, 55 FR 46369; November 2, 1990). The TCLP is also used in listing hazardous wastes to estimate leachate concentrations for use in groundwater modeling (for example, see the petroleum listing, 63 FR 42110, August 6, 1998). The TCLP leaching solution contains acetic acid that is adjusted to a pH of 4.93 or 2.88, depending on the acidity of the waste sample. On the other hand, EPA developed the SPLP as a method to predict the leaching from wastes or soils under exposure to the slightly acidic, dilute solution generated by normal rainfall. The SPLP test uses a leach solution which mimics acid rain, while the TCLP uses a leach solution which mimics acids formed in municipal landfills. In past actions, EPA has recognized that the TCLP's use of organic acids may not be appropriate for disposal scenarios that do not involve municipal landfills. For example, in the proposed rule for management and disposal of lead-based paint debris, EPA used the SPLP to assess leaching from landfills that do not accept municipal wastes (see 63 FR 70189; December 18, 1998). Similarly, EPA utilized the SPLP in screening low hazard wastes as part of its 1989 Bevill determination (see 54 FR 36592; September 1, 1989). The use of chat in transportation construction projects would preclude chat from being exposed to the conditions found in municipal landfills. Chat used in transportation construction projects will, however, be exposed to rainfall that then enters the groundwater. In determining which leach test to require, the Agency believes that the SPLP is the more appropriate test. As stated previously, the TCLP was designed as a screening test to simulate the leaching potential of wastes in municipal solid waste landfills. Since it is highly unlikely that road surfaces would be exposed to leaching conditions found in municipal landfills, and because the SPLP test is a more likely scenario that would simulate the leaching potential of metals in chat used in transportation construction projects, we are requiring that if chat is to be used in PCC, granular road base, flowable fill, stabilized road base or chip seals, the user make a case-by-case demonstration using the SPLP test. vi. Rationale for Setting National Primary Drinking Water Standards Versus National Recommended Water Quality Criteria, and Dilution and Attenuation Factors

(DAFs)Because the Agency is requiring leachate testing if chat is to be used in PCC, granular road base, flowable fill, stabilized road base or chip seals, the Agency also must establish specific numeric criteria. In the proposal, the Agency requested comment on this issue. Specifically, the Agency stated, “For example, the Agency could specify that the results of testing would need to meet the Primary and Secondary Drinking Water Standards for lead, cadmium, and zinc. The Agency also solicits comment on whether the leachate should be measured against the National Recommended Water Quality Criteria which address acute and chronic biological effects.” The Agency also requested comment on whether a Dilution and Attenuation Factor should be applied to reflect how contaminant concentrations may change as they move through the environment (see 64 FR 16738-39). The Agency received only one comment on this issue. The commenter suggested that SPLP results should be measured against state water quality standards for lead, cadmium and zinc, and the Agency should use the chronic criteria for protection of aquatic life. The Agency disagrees with the commenter that we should use the State water quality criteria instead of the National Primary Drinking Water standards for lead and cadmium. State water quality criteria are established for the protection of aquatic life and human health in surface water for approximately 150 pollutants. National Primary Drinking Water standards protect public health by ensuring safe drinking water and protecting ground water. EPA has selected the National Primary Drinking Water standard for lead and cadmium since those standards are most protective of human health. The Agency has selected these standards for a variety of reasons. First, review of the Tar Creek Superfund site RODs indicated that one of the metals of concern is lead. The 2005 OU studies on the use of chat in asphalt also indicated that lead, cadmium and zinc are the principle heavy metals of concern in chat. Those conclusions are based on review of a series of studies which evaluated the metals concentrations in raw chat piles. They are also the criteria that EPA used in determining that chat used in hot mix asphalt is safe and environmentally protective. RODs also show that runoff from chat piles may be adversely affecting biological resources in streams throughout the Tar Creek Superfund site. Agency review of the environmental impacts of zinc (see ATSDR report on zinc) confirms that it can adversely affect aquatic species. Since the Agency agrees with the commenter that aquatic life should be protected, the Agency has decided to use the freshwater chronic National Recommended Water Quality Criteria for zinc of 120 μg/l. It should be pointed out that there is no National Primary Drinking Water standard for zinc and that the National Secondary Drinking Water standard for zinc is a non-enforceable guideline regulating contaminants that may cause cosmetic effects or aesthetic effects in drinking water. The Agency believes it is more appropriate to use the National Recommended National Water Quality Criteria for zinc since it addresses aquatic toxicity, as opposed to the National Secondary Drinking Water standard which addresses cosmetic and aesthetic effects. As noted above, other commenters stated that they did not believe leachate testing is necessary when chat is mixed with asphalt or concrete. They asserted that such uses were safe and environmentally protective. With respect to most uses of chat in asphalt; *i.e.* , hot mix asphalt, warm mix asphalt, cold mix asphalt, slurry seals, and microsurfacing, the Agency agrees with the commenters. However, as stated previously, there is insufficient data or evidence that other uses of chat; *e.g.* , in PCC, granular road base, flowable fill, stabilized road base or chip seals are safe and protective. This final rule allows these uses of chat in transportation construction projects if the user conducts SPLP testing and the leachate does not exceed the National Primary Drinking Water Standards for lead and cadmium and the freshwater chronic National Recommended Water Quality Criteria for zinc of 120 μg/l. At proposal, the Agency also solicited comment on whether Dilution and Attenuation Factors

(DAFs)should be applied to the leachate criteria if such criteria were established. The Agency received only one comment on this issue. The commenter suggested that to assess surface water quality, a DAF of 100 times the Water Quality Criteria be used, while for groundwater no DAF be used and reliance should be directly on the primary MCLs. This rule is not establishing DAFs due to the lack of data the Agency has regarding the leachate potential for uses requiring SPLP testing, a lack of data to properly establish DAFs which would assure that chat use is safe and environmentally protective, and because the Agency did not use DAFs in evaluating the use of chat in hot mix asphalt. Therefore, we are requiring that chat used in PCC, granular road base, flowable fill, stabilized road base or chip seals undergo SPLP testing prior to its use and the results compared to the National Primary Drinking Water Standards for lead and cadmium and the freshwater chronic National Recommended Water Quality Criteria for zinc of 120 μg/l, without DAFs. Again, if the test results do not exceed the National Primary Drinking Water Standards for lead and cadmium and the freshwater chronic National Recommended Water Quality Criteria for zinc, the test results do not need to be submitted to EPA or the State for review and approval. vii. Rationale for Use of Site-Specific Risk Assessments As noted above, a chat user can conduct SPLP testing prior to use in PCC, granular road base, flowable fill, stabilized road base or chip seals to demonstrate, on a case-by-case basis, that the use of chat in such uses are safe and environmentally protective. If the results of such testing exceed the standards noted above, the chat user may still make another case-by-case showing by conducting a site-specific risk assessment. Our rationale for allowing chat uses based on site-specific risk assessments is to encourage greater use of chat provided the uses are safe and protective. We believe site-specific risk assessments conducted according to EPA guidelines referenced below will provide the necessary data to determine whether a proposed use is safe and protective. The Agency received comments on the April 4, 2006 proposal requesting that EPA allow these uses of chat. Some commenters argued that allowing these uses would encourage greater use of chat and facilitate the elimination of chat piles. They also suggested that these uses would be more protective of human health and the environment than the chat piles, however, the commenters did not provide data or evidence to show that these uses are in fact safe and protective. Nevertheless, EPA agrees with the commenters that encouraging chat use, as long as uses are safe and environmentally protective, would lead to a quicker drawdown of the chat piles and ultimately benefit the communities where the piles are located. As a result, the use of chat in PCC, granular road base, flowable fill, stabilized road base or chip seals will be allowed in transportation construction projects if there is a demonstration through a site-specific risk assessment, as described below, that the use is safe and environmentally protective. Such risk assessments involve analyses of how the leachate moves into surface or groundwater and whether metals concentrations down gradient from the chat use location will exceed relevant standards. Therefore, risk assessments involve the modeling of leachate in the environment and findings of whether, after such movement, health or environmental based standards are exceeded. This type of surface and groundwater modeling involves analysis of the type and concentration of metals in the leachate and their mobility. A commenter noted that the Agency should compare the results of modeling of leachate movement in ground water against the National Primary Drinking Water standards as the basis in determining if a use is protective. We generally agree with this position, as it applies to lead and cadmium. However, in some cases, drinking water standards may not be relevant for ground water, for example where it is already contaminated so that it is not suitable for drinking, and controls are in place to prevent consumption. Also, where the ground water drains into surface water, the reviewing agency should consider the freshwater chronic Water Quality Criteria for zinc of 120 μg/l. EPA, or the State environmental agency, if the State chooses to do so, will determine whether the proposed use is safe and environmentally protective based on the information in the site-specific risk assessment. The agency conducting the evaluation may request additional information from the chat user to assure that the risk assessment meets EPA or State criteria and there is sufficient information to determine if the proposed use is safe and environmentally protective. EPA, or the state if it chooses to do so, will solicit public input by a number of means; for example, it can publish its proposed determinations in a local newspaper, prior to making a final determination. In addition, EPA will provide sufficient time for the public to review and comment on the proposed decision. For example, EPA provides 45-days for public review and comment of proposed permit decisions under the hazardous waste regulations. Such timeframe may also be appropriate in this case. States might achieve the same level of public input by following a similar approach. If a chat user decides to conduct a site-specific risk assessment, it is recommended that they consult with EPA or the State environmental agency to discus how best to conduct the risk assessment to reflect existing site conditions and receptors. EPA has established guidelines on how to conduct risk assessments. These guidelines were developed to help guide EPA scientists in assessing risks to human health from chemicals or other agents in the environment. They also inform EPA decision makers and the general public about these procedures. When risk assessments are conducted, we recommend that these guidance documents be utilized (see *http://cfpub.epa.gov/ncea/cfm/nceaguid_human.cfm* ). EPA's Superfund program has also developed guidance on how to conduct human health and ecological risk assessments. Those guidance documents can be accessed at: *http://www.epa.gov/oswer/riskassessment/superfund_hh_exposure.htm.* viii. Uses Authorized by a State or Federal Response Action This rule also establishes a criterion that other uses of chat in transportation construction projects funded, in whole or in part, with Federal funds will be safe and environmentally protective if they are part of, and otherwise authorized by, a State or Federal response action undertaken in accordance with Federal or State environmental laws. Such actions are undertaken with consideration of site-specific risk assessments, which account for the full variety of conditions at the site, such as existing contamination in assessing risks to human health and the environment. For example, Region 7 assessed the protectiveness of using unencapsulated chat as road base for a proposed highway bypass and, as a result of a site-specific risk assessment, determined that such use, compared to other alternatives, was a more protective action ( *Engineering/Cost Analysis—Highway 71, Jasper County, Missouri* , USEPA Region 7, August 2000). This approach was included in the proposal and the Agency did not receive any adverse comments on this approach. The Agency also discussed this option during the comment period with State environmental regulatory agencies who indicated that they supported the ability to utilize chat as a result of their response actions. ix. Certification At proposal, the Agency noted that the rule should include a certification requirement. A number of commenters objected to this requirement since they argued that this type of reporting would increase the cost of using chat and therefore discourage its use. The Agency noted at that time that the BIA had established a similar certification requirement for chat sold from lands under their authority. The Agency does not agree that this rule's certification requirements will place an undue financial burden on chat users (see Economic impact section of this rule). In addition, the Agency believes that the certification requirement is necessary to assure that chat users comply with today's action, and that it is not used in a manner that would necessitate Federal or State cleanup actions. The certification will also serve as a means to inform State environmental agencies about the use of chat in their state. This final rule requires that chat users must submit a signed, written certification to the environmental regulatory agency in the State where the chat is to be used within 30 days of the date of acquisition. The certification will contain the following information: location of origin of the chat, amount of chat acquired, and a Certification Statement that the chat used in this transportation project will meet the criteria established by this rule. If the chat is sold or otherwise transferred to another party, the acquirer shall provide a copy of the certification to the new owner of the chat. The new owner shall submit a certification according to § 278.4(a)(1). The new certification supersedes all previous certifications. The acquirer of chat, and any other person that receives the chat, will also maintain copies of all of the following for three years;

(a)A copy of the certification following transmittal to the State department(s) of the environment, and, as appropriate,

(b)any SPLP testing results, or

(c)any site specific risk assessments. 2. Non-Transportation Uses—Cement and Concrete Projects Title VI of Section 6018 of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (HR 3 or “the Act”), amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C. 6961 *et seq.* ) by adding Sec. 6006. This provision also requires the Agency to develop environmentally protective criteria for the safe use of chat in cement and concrete projects. However, these criteria are only guidance and are not Federally enforceable since the Act requires only that transportation construction projects funded, in whole or in part, with Federal funds meet the criteria established in this rule. Non-transportation uses of chat include its use as a raw material in the manufacture of cement and as an aggregate in PCC. This final rule establishes criteria as guidance for chat used in cement and concrete for non-transportation, non-residential projects. Specifically, chat used in cement and concrete in non-transportation construction projects should only be used in non-residential construction projects, and for structural purposes if, based on a case-by-case basis, a demonstration shows that the proposed use of chat is safe and environmentally protective. The remainder of this section discusses the approach and rationale for the approach taken. a. What is our approach? Based on the lack of leaching data available on the use of chat in PCC, the Agency is establishing guidance that chat used in cement and concrete projects for non-transportation uses rely on the same approach taken for the transportation use of chat used in PCC. That is, for such uses, the Agency recommends that chat only be used in cement and concrete for non-transportation, non-residential construction projects if, on a case-by-case basis, either:

(ASTM)standards for clinker. However, Ash Grove is no longer producing cement with chat. The Agency also reviewed published data and conducted interviews with chat sellers and State regulators and determined that chat is not currently being used in cement manufacturing or in non-transportation PCC projects. Pursuant to section 6006(a)(1) of the Act, the Agency reviewed the possible use of chat as aggregate in concrete, and as it did in its transportation construction projects evaluations, concludes that certain non-transportation uses of chat in concrete may be safe and environmentally protective. However, due to the lack of data for non-transportation uses, information is required that shows such uses are protective. Consequently, EPA recommends that using chat in cement and concrete be allowed only if a case-by-case showing is made that shows such use is safe and environmentally protective (see discussion under concrete in transportation uses for further details of the approach recommended and our rationale). To meet this goal, the Agency recommends that such non-transportation uses of chat in cement and concrete projects be limited to non-residential foundations, slabs, concrete wall panels, retaining walls, commercial and industrial parking areas and sidewalks. Other non-residential uses also may be approved after a review of SPLP test data or a site-specific risk assessment as described throughout this final rule. As noted previously, we would not recommend that chat be used in residential settings ( *e.g.* , concrete countertops, sidewalks, foundations, slabs, driveways, roads). There were comments raising concerns about the possible exposure of workers involved in non-transportation construction projects to chat in cement or concrete. The Agency has reviewed the Occupational Safety and Health Administration

(OSHA)standards governing worker health and safety related to the construction and demolition of non-residential non-transportation uses of cement and concrete. Based on this review, the Agency concludes that existing standards require employers to provide adequate protection to workers from dusts and metals and these standards would extend to dusts and metals from cement and concrete containing chat. It should also be noted that when chat is used as an aggregate in concrete, worker exposures would be limited since the metals would already be bound. C. Relationship of This Rule to Other Federal Regulations and Guidance For all uses of chat in transportation construction projects carried out, in whole or in part, with Federal funds that is affected by this action, users must meet the relevant specifications ( *e.g.* , for durability, granularity) established by the relevant state departments of transportation and the Federal Highway Administration (FHWA), prior to it being used in transportation projects. This final rule does not affect or change these specifications and requirements. The FHWA established minimum standards at 23 CFR Part 626 for Highways (including references to the AASHTO Standard Specifications for Transportation Materials and Methods of Sampling and Testing) and at 23 CFR Part 633, Required Contract Provisions. Aggregate requirements for Concrete include AASHTO-6, Fine Aggregate for Portland cement concrete and AASHTO-80, Coarse Aggregates for Portland cement concrete. Technical requirements for Hot Mix Asphalt include AASHTO-29, Fine Aggregate For Bituminous Paving Mixtures and ASTM D6155, Standard Specification for Nontraditional Coarse Aggregates for Bituminous Paving Mixtures. FHWA National Highway *Standard Specifications and Supplements* is divided into topic areas corresponding to the divisions used in the “Guide Specifications for Highway Construction” Manual published by the AASHTO and can be accessed at ( *http://fhwapap04.fhwa.dot.gov/nhswp/servlet/LookUpAgency?category=Standard+Specifications+and+Supplements* ) 12 . 12 State highway construction specifications can be found at the following internet web sites for Oklahoma ( *http://www.okladot.State.ok.us/materials/700index.htm* ), Kansas ( *http://www.ksdot.org/burMatrRes/specification/default.asp* ), and Missouri ( *http://www.modot.State.mo.us/business/standards_and_specs/highwayspecs.htm* ). In addition, ASTM Standard C-33 restricts the amount of chert that may be mixed into PCC when the chert has a specific gravity (ratio of its density to the density of water) less than 2.4. Chat in the Tri-State area, a form of chert, has a specific gravity greater than 2.4 and thus, would not be limited by this standard. Chat does, however, have the potential to be a poor performing aggregate when used in PCC due to its potential alkali-silica reactivity

(ASR)13 . 13 The Agency also reviewed studies on the potential for alkali-silica reactions in chat concrete and concludes that it can be used if appropriate materials testing is conducted prior to use. The Agency also assessed current regulation of dusts from milling and demolition. As part of this assessment, based on the Peer Review comments, the Agency conducted an additional risk screen from the milling of chat encapsulated in asphalt road surfaces. Based on this review and analyses, we conclude that exposure to fine particles released during milling and demolition operations would be limited to on-site workers (for the basis of this conclusion, see Section V). The Occupational Safety and Health Administration have established limits for worker exposure to the metals found in chat (29 CFR 1926.55—Safety and Health Regulations for Construction, Gases, Vapors, Fumes, Dusts, and Mists, available at: *http://www.osha.gov/pls/oshaweb/owastand.display_standard_group?p_toc_level=1&p_part_number=1926* ). EPA has reviewed the OSHA standards (see Section V “What Are the Environmental and Health Impacts?” below) and concludes that the OSHA standards require adequate worker health and safety protection and thus, it is not necessary to promulgate additional standards to address this issue. D. How Does this Rule Affect Chat Sales From Lands Administered by BIA or Directly From Tribal Lands? BIA signed a Memorandum of Agreement with EPA Region 6 in February 2005, designed to lead to the renewed sale of chat from Tribal lands and from lands administered by BIA. EPA's rule does not prevent chat sales, nor is it intended to delay such sales. This rule is consistent with BIA's chat sales requirements. The draft sales agreement prepared by BIA requires the submittal of a certification which requires buyers of chat from tribal lands to use it in a fashion which is deemed acceptable by EPA. This rule requires the same certification for the use of non-tribal chat. E. How Does This Rule Affect CERCLA Liability, Records of Decision, and Response Actions? If waste material, such as chat, is used in a way that creates a threat to human health or the environment, the owner of the property and the party responsible for creating the hazardous situation could be liable for conducting or financing a response action under CERCLA or State law. This rule establishes criteria for chat use in federally funded transportation construction projects. However, such Federal funding does not include compensation for any response action as defined in CERCLA section 101 (25), (42 U.S.C. Section 9601 (25)) involving chat or other hazardous substances. Finally, nothing in this rule shall affect existing RODs issued at EPA National Priorities List sites or Removal Decisions associated with chat nor does the rule affect the determination of liability as noted in CERCLA Sections 104, 106, and 107 or State corrective action decisions. F. How Does This Rule Affect the Use of Federal Funds Administered by the U.S. Department of Transportation for Transportation Construction Projects? Through Title VI of Section 6018 of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (HR 3 or “the Act”), Congress amended Subtitle F of the Solid Waste Disposal Act (42 U.S.C. 6961 *et seq.* ) by adding Sec. 6006. This provision requires, among other things, for the Agency to develop environmentally protective criteria (including an evaluation of whether to establish a numerical standard for concentrations of lead and other hazardous substances) for the safe use of granular mine tailings from the Tar Creek, Oklahoma Mining District, known as “chat,” in transportation construction projects that are carried out, in whole or in part, using Federal funds. Section 6006(a)(4) requires that any such use meet EPA's established criteria. As noted above, the oversight of Federal funds used in transportation is the responsibility of the U.S. DOT. Its policies and procedures related to the management of those funds can be found in the Code of Federal Regulations beginning at Title 23 Part 1(23 CFR 1). DOT requires that users of Federal transportation funds must comply with applicable State or Federal regulations (23 CFR 1.9 and 1.36). DOT will include reference to compliance with this rule in its guidance regarding the awarding of federal transportation funding. V. Impacts of the Final Rule A. What Are the Potential Environmental and Public Health Impacts From the Use of Chat in Transportation Construction Projects? For the proposed rule, we conducted an assessment of the risks associated with the proposed use of chat. (See the preamble to the proposed rule at 71 FR 16729, April 4, 2006 and the *Report on Potential Risks Associated with the Use of Chat from the Tri-State Mining Area in Transportation Projects* (RTI, 2006) for more details on this assessment.) Data from studies conducted by OU present total metal concentrations and leaching characteristics of

(1)asphalt concrete surface and base mix formulations prior to roadway application,

(2)asphalt and stabilized base samples from roads currently in use,

(3)spent asphalt concrete samples that were broken up and stored in piles, and

(4)milled asphalt concrete samples intended to simulate weathering. These studies show that the metals are tightly bound in the encapsulated matrix when the total metals concentrations in asphalt concrete samples are compared to corresponding TCLP and SPLP leachate concentrations. In particular, for asphalt concrete surface mix and stabilized road base uses for all four categories, the highest TCLP concentrations reported for lead and cadmium were below the toxicity characteristic

(TC)regulatory limits (5 mg/L and 1 mg/L, respectively). In fact, when the metals were detected, in many cases, they were below the drinking water MCLs for lead and cadmium. 14 For zinc, when detected, the TCLP concentrations were found to be generally above the SMCL (5 mg/L) by up to a dilution and attenuation factor of 16. As we have noted earlier, however, we believe that use of the TCLP in evaluating the leaching potential of encapsulated chat used in transportation construction projects is inappropriate since it does not accurately reflect the environmental conditions of the management scenario. Rather, we believe the SPLP is a more appropriate test of the conditions expected to lead to leaching of metals from this material. In addition, where leachate testing was conducted using the TCLP and SPLP methods, in all cases, the concentrations of the metals were approximately an order-of-magnitude lower for the SPLP as compared to the TCLP. In most cases, the SPLP concentrations were below the MCLs for lead and cadmium and were always below the SMCL for zinc. 14 Comparisons of leachate concentrations with drinking water criteria assume that no dilution or attenuation occurs before the dissolved metals reach a drinking water well or surface water. The Agency believes this worst case scenario is highly unlikely to occur in the area of the country where the use of chat is occurring. In summary, this assessment concluded that based on the available reports and data reviewed, the use of chat as an aggregate for hot mix asphalt poses negligible risks to human health through the groundwater exposure pathway, while some unencapsulated uses of chat may pose substantial risks to human health and the environment. The leachate data representing the binding capacity of the asphalt matrix—particularly in hot mix asphalt—show that the metals are tightly bound throughout the life of these products. By inference and based on limited data, it appears as though certain other uses of chat, such as chat contained PCC, flowable fill and stabilized base would have similar binding properties that would reduce the leaching of metals. However, the available leachate data on these uses are very limited, and may be a concern given the volume of chat that could be used in road construction projects. In addition to these data deficiencies on specific uses, we identified other data gaps with respect to risk, including the milling of chat-containing asphalt concrete. Milling of asphalt concrete roadways during resurfacing would likely release to the air fine chat particles, which could lead to contamination of residential soils and homes located in the vicinity of a road construction project. Our assessment concluded that these events would be episodic and infrequent (corresponding to approximately once over a 15 year lifespan of the asphalt), resulting in transitory exposures of relatively short durations. The Agency assumed that the milling operations would be subject to regulations and best management practices that would protect the health of workers. However, the data were not available to evaluate the potential exposures to nearby residents from chat concrete particles blowing on to residential areas. The assessment concluded, however, that the uncertainty of the exposures to residents from milling and management of encapsulated chat products during road resurfacing could be an area for future study. The Agency also considered in its assessment non-transportation uses and the demolition of structures containing chat. We did not perform any environmental modeling as with the evaluation of transportation uses. However, with existing fugitive dust regulations and demolition practices, we concluded that exposures from dust generated during the use or demolition of chat in concrete buildings would not pose significant risks to human health. Concurrent with the public notice and comment period for the proposed rule, the Agency conducted an external peer review of its assessment, *Report on Potential Risks Associated with the Use of Chat from the Tri-State Mining Area in Transportation Projects.* Based on the comments received from the public and from the Peer Reviewers, the Agency has revised the screening evaluation report to reflect those comments. The following discussion provides the Agency's response to the major comments received from the peer reviewers. In addition, the revised report and our response to comments are provided in the docket for this rule. The following are the major issues raised by the peer reviewers and the Agency's responses.

(1)Potential Exposures During the Milling Process Were Not Evaluated The peer review commenters believe that the lack of data on air emissions from the grinding of the road surface prior to resurfacing (“milling”) is a considerable source of uncertainty in evaluating the potential risks of using chat in hot mix asphalt. They contend that potential exposure to chat dust generated during the milling of asphalt concrete roads, in addition to the storage of milled materials, should be evaluated through pathways that consider both the inhalation of dust and the incidental ingestion of metals contaminated soil from areas adjacent to a roadway being milled. In addition, peer review commenters noted two additional concerns associated with the milling process:

(a)Addressing the short-term exposure of lead to a developing fetus or young child during critical and sensitive periods of growth, and

(b)considering background levels of lead in the screening analysis. The Agency believes that the concerns raised by the peer reviewers are valid and conducted further study to address them. Specifically, we performed a screening analysis to evaluate exposures through direct inhalation of air emissions associated with milling and incidental ingestion by a child of metals-containing soils adjacent to a milled roadway. The assessment was designed to be conservative by selecting both a methodology and the use of high-end parameters that result in upper-bound estimates of hazard and risk. Examples of high-end parameters used in the screen are:

(1)Total metals concentrations for lead, zinc, and cadmium from the 2005 OU study where chat comprised 40% of the aggregate used in hot mix asphalt, where typical hot surface mix includes up to 20% chat,

(2)the risk screen utilized maximum, hourly air concentrations, rather than an average concentration for inhalation exposure to an adult and also to a child (using the Agency's Integrated Exposure Uptake Biokinetic Model for lead in Children (IEUBK),

(3)the risk screen assumed the placement of the milled asphalt concrete storage pile on the side of a road closest to a receptor and locating the receptors at the point of maximum off-site air concentration,

(4)the risk screen assumed exposure to chat dust occurs 24 hours/day, for seven days a week, and

(5)protective assumptions were used with respect to emissions factors for street sweeping and storage pile loading/unloading operations and meteorological conditions. The results of this additional analysis show that the milling of chat in asphalt concrete roadways will not adversely affect public health. Specifically, for the direct inhalation pathway, the highest cancer risk predicted for cadmium was 2 × 10 −9 (that is, 2 excess cases of cancer per 1,000,000,000 people exposed to the estimated air concentration). The highest non-cancer hazard quotient for cadmium was 0.004 (a hazard quotient is the ratio of the air concentration of cadmium and the level at which no adverse effects are expected; if the hazard quotient is less than 1, then no adverse health effects are expected as a result of exposure). For the direct ingestion of soil adjacent to the roadway, the predicted concentrations of metals in soil were 37.6 (Zn), 3.2 (Pb), and 0.2

(Cd)mg/kg soil, all of which are below

(a)The generic EPA Superfund Soil Screening Levels

(SSLs)for cadmium and zinc,

(b)the 400 ppm CERCLA/RCRA screening level for lead in residential soils, and

(c)the background soil concentrations for the western U.S. The comparison with background concentrations was intended to provide additional insight into the contribution to the current environmental “burden” of these metals in the area in which chat-containing surface mixes could be used. A soil concentration below background levels suggests that the milling operations will not result in significant increases in the zinc, lead, and cadmium concentrations in soil. In order to address the concern of lead exposures for children, the Agency used the IEUBK model, which includes multiple pathways of lead exposures (for example, inhalation of dust, ingestion of soil and dust, and dietary intake), and is considered a good predictor of potential long-term blood-lead levels for children in residential settings. We ran the IEUBK model using the maximum air concentration estimated from the direct inhalation analysis, and both the soil concentration we estimated due to milling operations and a separate analysis using a background soil concentration for lead reported in the western U.S. In both cases, a hypothetical child exposed to the estimated air and soil levels resulted in a chance of less than 5% of exceeding a 10μg/dL blood-lead level. The blood-lead levels predicted were 4.328μg/dL and 4.473μg/dL, respectively, from the lead levels we estimated in soil from milling operations and for background soils. The criterion of no more than a 5% chance of exceeding a 10μg/dL blood-lead level is the current Agency guidance level. The Center for Disease Control considers a blood-lead level of 10μg/dL to be of concern for children. A complete discussion of the screening analysis for the milling of asphalt concrete roads is available in the public docket supporting this final rule. In addition, the screening level analysis was reviewed by selected Agency experts in the fields of emissions modeling and risk assessment. Their comments are also in the docket supporting this final rule. Responses to their comments are reflected in the final document for the screening analysis (RTI, 2007).

(2)Demolition The peer review commenters raised concerns that dusts resulting from the demolition of chat contained in asphalt concrete and PCC could pose a threat to human health. Road surfaces using chat may also be demolished at the end of their useful life (like conventional asphalt concrete, the useful life could be on the order of 15 years). The demolition of road surfaces containing chat would likely involve low emissions of chat dust particles, theoretically with subsequent dispersion and deposition to nearby soils. Based on discussions with demolition contractors, it is apparent that dusts from such demolitions are regulated under the State fugitive dust regulations. Exposure to such dusts probably would be limited to workers because existing State regulations require that dusts be contained within the area of origin. As noted elsewhere in this preamble, OSHA has established exposure limits for dusts and metals for workers in construction and demolition. Most, if not all, road concrete which is demolished is reused as fill or as road base. Based on the information noted above, the Agency concludes that exposure to chat in demolished pavement does not present a significant risk.

(3)Data Are Insufficient To Establish Risks From the Use of Encapsulated Chat in Products Other Than Hot Mix Asphalt The peer review commenters noted that there is very limited information to determine whether the use of chat in products other than HMA poses low risk. One of the Peer Reviewers stated that it is “likely that the risk from other encapsulated forms will be closer to HMA than to unencapsulated forms, but it is not possible to state how close it will be to the HMA risks.” The Agency generally agrees that data are insufficient to determine if the use of specific products other than HMA evaluated in the *Report on Potential Risks Associated with the Use of Chat from the Tri-State Mining Area in Transportation Projects* are environmentally safe. Consequently, as discussed elsewhere in this preamble, the Agency is allowing the use of chat in Portland cement concrete products (and certain other uses) if a person can demonstrate, on a case-by-case basis, either that:

(4)Non-Transportation Risks-Demolition Peer review commenters requested that the Agency carefully review whether existing regulations adequately protect workers from the demolition of chat encapsulated materials. To address that request, this assessment considered how dust generated during the demolition of nonresidential buildings which used chat encapsulated in PCC would occur and whether regulations address worker exposure. 16 The Agency assumed that such buildings would be demolished once every 30 years, based on the Internal Revenue Service allowable straight-line depreciation for non-residential real property of 31.5 years. The Agency determined that demolition practices, as noted by the National Association of Demolition Contractors, would generally generate dusts for periods rarely in excess of 20-30 minutes when buildings are imploded. Furthermore, the Agency has reviewed the fugitive dust demolition regulations in Oklahoma, Missouri, and Kansas and found that building demolition requires a general fugitive dust permit that mandates that demolition related dusts be contained within the property line (most often through the use of water sprays). Based on this information, the Agency concludes that dusts from the demolition of nonresidential buildings with chat contained in PCC are not likely to present a significant threat to human health. 16 The American National Standards Institute ANSI-A 10.6-1983 American National Standard for Demolition Operations Safety Requirements set minimum dust exposure limits and recommends that no worker shall be permitted in any area that can adversely affect them when demolition operations are being performed. Even if chat metal levels do not trigger OSHA requirements, however, other OSHA controls would still be utilized to address worker health risks from exposure to fine particulates, which indirectly addresses the issues associated with chat. In particular, demolition of concrete structures is known to produce extremely fine particles of crystalline silica. Breathing crystalline silica dust can lead to silicosis, a commonly known health hazard which has been associated historically with the inhalation of silica-containing dusts. Silicosis is a lung disease which can be progressive and disabling; it can lead to death. The OSHA standards for exposure to dust, (29 CFR 1926.55) prohibit employee exposure to any material at concentrations above those specified in the “Threshold Limit Values of Airborne Contaminants for 1970.” OSHA has established for crystalline silica dust a Permissible Exposure Level which is the maximum amount to which workers may be exposed during an 8-hour work shift. NIOSH has recommended an exposure limit of 0.05 mg/m 3 as a time-weighted average for up to a 10-hour workday during a 40-hour workweek. Although the Agency has no reason to believe that chat contained in PCC would increase the levels of fine particulates, including crystalline silica, we believe the OSHA/NIOSH standards will provide adequate protection to workers from potential exposure. OSHA has also established worker health and safety standards specific to building demolition in 29 CFR 1926 Subpart T. These standards require an engineering survey of the building prior to demolition to identify any risks and implementation of project wide dust controls. The standards also require compliance with NIOSH respirable dust standards which essentially require the use of respirators, if standards noted in 29 CFR 1910 are exceeded. Based on the Agency's review of the OSHA standards, we conclude that these regulations provide adequate protection to onsite demolition workers. One of the Peer Reviewers noted that NIOSH and OSHA standards may not apply to county or State highway workers and that those safeguards would not actually protect workers potentially exposed to dusts during milling or demolition. The Agency has reviewed State and Federal worker health and safety laws as they apply to demolition, and does not agree that there is insufficient regulatory protection of workers. The commenter also noted that existing regulations are not being enforced. While the Agency has not been able to determine whether this allegation is accurate, it is beyond the scope of this effort to determine whether these regulations are being enforced by the states or others.

(5)The Risk From the Generation of Chat Fines During Processing Was Not Evaluated The peer review commenters noted that the rule should include criteria addressing the handling and disposal of chat fines resulting from the wet sizing of chat. First, the Agency would note that this final rule does not require that the raw chat be washed or sized prior to being used. Therefore, any fines that are generated would not be the result of this rule. Nevertheless, the Agency evaluated the risks from exposure to fines from chat washing facilities during Superfund Site investigations at the NPL Sites in the Tri-State Mining District. The information we have shows that fines may release metals into the environment. However, the release of these metals can be effectively controlled by EPA through its oversight authority of the Tar Creek Superfund site. In addition, we believe that most chat washing will continue to be conducted at the two known commercial chat washing facilities located within the Superfund Sites. However, to the extent that other chat washing facilities become operational, we also believe that they will be adequately controlled based on our review of the air and water regulations in Oklahoma, Missouri and Kansas. (See Section III for a discussion of EPA's evaluation of the states regulatory programs to control air and water releases at asphalt plants, PCC plants and chat washing facilities.)

(6)Ecological Risks The peer review commenters noted that there should be a more comprehensive analysis of the ecological risks from chat use. Environmental quality information presented in several studies indicated that damages to streams had been documented for the Tri-State Mining Area; however, these studies did not address encapsulated chat uses, but were from multiple sources of contamination associated with lead and zinc mining, including subsurface sources (flooded mine shafts), surface sources (chat piles, tailing sites), and smelting operations. SPLP analyses for chat encapsulated in hot mix asphalt (OU, 2005) shows that zinc concentrations, when detected, were below EPA's National Recommended Water Quality Criteria ( *http://www.epa.gov/waterscience/criteria/wqcriteria.html* ) for the protection of aquatic life. This study did not find detectable levels of lead or cadmium in any leachate using the SPLP method. We do not foresee that environmental conditions could occur where metals from chat used in transportation projects, that are funded, in whole or in part, using Federal funds, would reach surface waters at levels of concern either through run-off to nearby soils, which would have subsequent attenuation before reaching surface waters, or via the groundwater pathway, which would have additional attenuation and dilution in groundwater before reaching nearby receiving waters. B. What Are the Economic Impacts? This Part summarizes projected cost impacts, economic impacts, and benefits associated with this final rule. A brief market profile is first discussed, followed by specification of the economic baseline. Costs and economic impacts are next discussed. These estimates are presented on an annualized basis. Finally, this Part presents a qualitative discussion of potential benefits associated with this final rule. 1. Chat Market Profile Chat is a byproduct of mining and milling operations that has been exempted from regulation as a “hazardous waste” under Subtitle C of RCRA. 17 However, it can pose risks to human health and the environment. Currently, chat in the Tri-State Mining District is found in above-ground piles of varying sizes, reflecting the different types of mining operations that occurred in each area. The total quantity of chat in the Tri-State Mining District is roughly 100 million tons. A small percentage of this total is currently used annually in road building or other beneficial use projects. 17 See 40 CFR 261.4(b)(7). A small, but well-established market for chat in transportation applications currently exists. The preparation and use of chat is dominated by a few small operations that purchase, process, and sell chat to area hot mix asphalt plants for use as an aggregate. Approximately 95 percent of all current chat use is for aggregate in hot mix asphalt. A wide range of different projects comprise the remaining 5 percent. 18 We have no evidence there is any current use of chat in cement or Portland cement concrete. 18 Current other uses of chat include: component in anti-skid surfaces, sand blasting material, and waste water treatment filters. The Agency believes that additional evaluation, outside the scope of this rule, is necessary to determine the environmental suitability of using chat as sand blasting or as filter media. The demand for chat as aggregate in transportation uses is price sensitive and is limited by various technical and performance standards. However, consistent demand exists as long as chat can be provided at prices that are competitive with other sources of aggregate. The key cost drivers for chat include raw material costs, processing and sizing, if conducted, and transportation. The current market price for chat, and other forms of aggregate, is approximately five dollars per ton. This estimate excludes transport cost, but includes processing and sizing, even though such operations are not required as part of this rule. A limited number of small companies act as brokers, processors and distributors (washers and haulers) of the chat in the Tri-State Mining District. Chat haulers and washers buy chat from several owners, each typically owning only a small amount of the total quantity of chat. Chat is both privately and publicly owned, including chat piles located on land controlled by the Quapaw Tribe of Oklahoma. Historical trends and information from regional chat suppliers suggest that the demand for chat for transportation-related uses is unlikely to change significantly over the next couple of decades. The currently viable market is well defined and transportation costs make chat economically unattractive beyond current market limits. Within the current market, rates of growth for new roads are modest (estimated at less than 2 percent per year) and population densities are low in areas where the use of chat is economically competitive. We are not able to determine what, if any, impact this rule may have on chat demand for use in asphalt concrete. Significant chat use in other applications, such as Portland cement concrete, does not appear to be viable at this time either for economic or other reasons. 2. Cost Impacts The value of any regulatory action is traditionally measured by the net change in social welfare that it generates. Our economic assessment conducted in support of this rule evaluated compliance costs only. Social costs are not assessed due to data limitations and the lack of equilibrium modeling capabilities associated with this industry. The data applied in this analysis were the most recently available at the time of the analysis. Because our data and analytical techniques were limited, the cost impact findings presented here should be considered generalized estimates. Our cost analysis examined the potential impact of the rule based on the use of encapsulated chat that comes from the Tri-State Mining District. Ninety-five percent of all chat that is used beneficially is used in hot mix asphalt transportation construction applications. Our cost analysis, therefore, focused on the use of chat as aggregate in hot mix asphalt. Chat may also be used for a variety of non-asphalt transportation and commercial building products. However, available data appear to indicate that non-asphalt uses of chat from the Tri-State area generally are not common either due to economics or a lack of demand. Our analysis indicates that the incremental cost impacts associated with this rule are approximately $210,000 per year. This estimate incorporates costs associated with certification, recordkeeping and reporting. Sampling and analysis costs, if any, for use in concrete pavement and nonresidential concrete are not included because the Agency is unaware of any such use currently taking place and further believes that such use, if it occurs, will be minimal. Additional “expanded use” scenarios are examined in the economic support document prepared for this action: *Assessment of the Potential Costs, Benefits, and Other Impacts of Chat Use in Transportation Projects,* December 18, 2006. This document is available in the docket established for this final rule. 3. Economic Impacts Our findings indicate that this final rule is unlikely to result in any significant economic impacts to chat suppliers or users in the short term. However, the potential impact of this rule on chat use over the next ten to twenty years is undetermined. As a result, it is not possible to estimate regional or local economic impacts over the long term. 4. Benefits This final rule is designed to establish standards intended to clarify and facilitate the safe use of chat in transportation applications carried out, in whole or in part, with Federal funds. The social benefits of this action are related to reduced human health and environmental damage in the Tri-State Mining District associated with the timely removal of chat from existing piles. Should there be no accelerated use of chat in transportation projects above the current annual rate, human health and environmental benefits may be equivalent to those expected under a no action baseline. VI. State Authority This final rule is promulgated under the authority of RCRA Section 6006. It becomes effective in all relevant States on its effective date of September 18, 2007; after that date, chat cannot be used in federally funded transportation projects except in compliance with today's regulations, regardless of current State law. At the same time, nothing in this rule restricts the authority of States, under State law, to establish different requirements or procedures for the use of chat in federally funded transportation projects. States are neither expected nor required to pick up this rule or to seek approval or authorization. Several provisions of this final rule directly affect States. Specifically, Section 278.3(b)(2) prohibits the use of chat in Portland cement concrete or in certain other uses (in Federally funded transportation projects,) unless approved by EPA or the State environmental agency, if the State chooses to be the approving entity, where the use will occur. While the rule would allow either EPA or the relevant State agency to approve such uses, EPA ordinarily expects to defer to the State where a potential chat user requests approval. EPA would only expect to act where the State preferred not to, and in these cases, it would work in close consultation with the State. In addition, Section 278.3(b)(3) provides that EPA or a State, if it chooses to do so, may approve the use of chat authorized as part of a State or Federal response action undertaken pursuant to applicable Federal or State environmental laws. In such cases, EPA expects that the State would rely on its existing cleanup regulations and procedures in approving the use. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” This action may raise novel legal or policy issues [3(f)(4)] arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget

(OMB)for review under EO 12866. Any changes made in response to OMB recommendations have been documented in the docket for this action. This rule is projected to result in cost impacts of approximately $210,000 per year. This figure is significantly below the $100 million threshold established under part 3(f)(1) of the Order. In addition, this rule is not expected to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Thus, this rule is not considered to be an economically significant action. We have prepared an economic assessment in support of this rule. This document is entitled: *Assessment of the Potential Costs, Benefits, and Other Impacts of Chat Use in Transportation Projects,* December 18, 2006. Findings from this document are briefly summarized under Section V. B above. B. Paperwork Reduction Act The information collection requirements in this rule have been submitted for approval to OMB under the *Paperwork Reduction Act,* 44 U.S.C. 3501 *et seq.* via this preamble instead of a separate Information Collection Request

(ICR)document. The certification, reporting, and record keeping required under this rule is necessary to ensure the safe use of the product containing chat. Certification, recordkeeping and reporting requirements under this rule are not subject to confidentiality restrictions. Since the burden associated with this rule is insignificant, a separate ICR is not necessary. The burden is projected to affect a limited number of entities. These include: three State governments (Oklahoma, Missouri, Kansas), one Native American tribe (Quapaw Tribe of Oklahoma), and no more than fifty sand and gravel companies located in the States of Oklahoma, Missouri, and Kansas (NAICS 4233202). The burden on respondents is estimated at 3,800 hours per year, with a total annual cost ranging from $152,000 to $228,000, depending upon labor costs. Respondents would also need to read and understand the rule. The burden associated with reviewing the regulation is estimated at 100 hours, with a total annual cost estimated at $5,000. The burden on governmental entities is estimated at 380 hours per year, with total costs ranging from $15,200 to $22,800 per year. These estimates do not include costs related to a user making a case-by-case showing to EPA or a State environmental agency that a proposed use is safe and environmentally protective. Those costs are not included because the Agency believes that there will be very few such requests made in any one year. All these estimates are summarized in the Table below. Summary of Estimated Burden to Respondents and Government Activity Number of hours per project Estimated cost per hour Estimated number of affected projects per year Estimated total annual burden (hours) Estimated total annual cost Burden to Respondents: Certification, Reporting, Record keeping 5.0 $40-$60 760 3,800 $152,000-$228,000 Burden to Government (affected States): Certification review and recordkeeping 0.5 40-60 760 380 15,200-22,800 Note: The additional burden to respondents associated with reading and understanding the regulation is estimated at 100 hours, with a total average annual cost estimated at $5,000. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a governmental entity. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 *et seq.,* generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act, or any other statute. This analysis must be completed unless the agency is able to certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. The RFA provides default definitions for each type of small entity. Small entities are defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This section summarizes whether the rule establishing criteria for the use of chat in transportation construction projects, carried out, in whole or in part, with Federal funds, may adversely impact small entities. The market for both chat and “virgin” aggregate in hot mix asphalt production is mature and dominated by small businesses. In order to have a significant economic impact on a substantial number of small businesses, the criteria for chat use would have to cause a significant decrease in the quantity of chat that is used in highway applications. Our analysis indicates that the current market area is not likely to experience any significant change in the demand for chat as a result of the rule. That is, while many chat processors, distributors, and users of chat are small businesses, significant economic impacts on a substantial number of these entities are not expected. The reader is encouraged to review our regulatory flexibility screening analysis prepared in support of this determination. This analysis is incorporated into the “Assessment” document, as referenced above. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written Statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written Statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The total costs of this action are estimated at $0.21 million per year. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule focuses on establishing criteria for chat use in transportation construction projects, carried out, in whole or in part, with Federal funds, without affecting the relationships between Federal and State governments. Thus, Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this rule, EPA did consult with representatives of State governments in developing this rule. Representatives from the States of Kansas, Missouri, and Oklahoma provided valuable input. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175: Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “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 Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Under Executive Order 13175, EPA may not, to the extent practicable and permitted by law, issue a regulation that has tribal implications, that imposes substantial direct compliance costs for which the Federal government does not provide funds to pay such costs, and that is not required by statute, unless EPA consults with tribal officials early in the process of developing the regulation. Similarly, to the extent practicable and permitted by law, EPA may not issue a regulation that has tribal implications and that preempts tribal law unless EPA, among other things, consults with tribal officials early in the process of developing the regulation. EPA has concluded that this rule does not have tribal implications in that it does not have substantial direct effects as specified in the Executive Order. In particular, EPA notes that this rule does not impose substantial direct compliance costs or pre-empt tribal law. However, the Agency recognizes the significant interest that some tribes have in this rule. Specifically, some chat piles are located on Indian country lands. Allotted lands of the Quapaw Tribe of Oklahoma (Quapaw Tribe) are estimated to contain about half of the 29 chat piles located within the Picher Mining Field site. This rule is not expected to significantly change the demand for, and income from, chat use. To the extent this rule encourages the removal of chat from existing piles, there is likely to be an improvement to the environment and human health in these areas. During the development of this final rule, the Agency carefully reviewed comments submitted on the proposal by the Quapaw Tribe. Agency personnel also consulted with representatives of the Quapaw Tribe to assure the tribe that their concerns were given due consideration. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not require the application of technical standards (e.g., materials specification, sampling, analyses). As such, the National Technology Transfer and Advancement Act does not pertain to this action. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Our analysis indicates that chat piles in the Tri-State Mining District are, in some cases, located near low-income populations. In addition, Quapaw allotted lands are located within the Picher Mining Field. Existing data on the human health and ecological impacts associated with chat suggests that these populations may be adversely affected by the presence of the chat piles. Thus, the removal of the chat from piles for transportation construction applications that are considered protective of human health and the environment would likely have a positive impact on these communities. K. Congressional Review Act The Congressional Review Act (CRA), 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a final rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Prior to publication of this final rule in the **Federal Register** , we will submit all necessary information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. Under the CRA, 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 Parts 260 and 278 Environmental protection, Chat, Certification and recordkeeping requirements, Incorporation by reference, Indians—lands, Mine tailings, Waste. Dated: June 5, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 260—[AMENDED] 1. The authority citation for part 260 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974. 2. Section 260.11 is amended by revising the first sentence in paragraph

(a)and paragraph (c)(3)(vii) to read as follows: § 260.11 References.

(a)When used in parts 260 through 268 and 278 of this chapter, the following publications are incorporated by reference. * * *

(c)* * *

(3)* * *

(vii)Method 1312 dated September 1994 and in Update III, IBR approved for part 261, appendix IX and § 278.3(b)(1). 3. Part 278 is added to read as follows: PART 278—CRITERIA FOR THE MANAGEMENT OF GRANULAR MINE TAILINGS

(CHAT)IN ASPHALT CONCRETE AND PORTLAND CEMENT CONCRETE IN TRANSPORTATION CONSTRUCTION PROJECTS FUNDED IN WHOLE OR IN PART BY FEDERAL FUNDS Sec. 278.1 Definitions. 278.2 Applicability. 278.3 Criteria for use of chat in Federally funded transportation projects. 278.4 Certification and recordkeeping requirements. Authority: 42 U.S.C. 6961 *et seq.* § 278.1 Definitions.

(a)*Asphalt concrete* —a layer, or combination of layers, composed of a compacted mixture of an asphalt binder and mineral aggregate.

(b)*Chat* —waste material that was formed in the course of milling operations employed to recover lead and zinc from metal-bearing ore minerals in the Tri-State Mining District of Southwest Missouri, Southeast Kansas and Northeast Oklahoma.

(c)*Chip seal* —a material composed of aggregate placed on top of a layer of an asphalt or asphaltic liquid binder. The aggregate may be rolled into the binder.

(d)*Cold mix asphalt* —refers to an asphalt and aggregate mixture composed of binders, soaps, or other chemicals which allow its use when cold

(e)*Epoxy seal* —refers to the mixture of aggregate in epoxy binders. Epoxy seals are typically used as an anti-skid surface on bridge decking

(f)*Federal or State response action* —State or Federal response action undertaken pursuant to applicable Federal or State environmental laws and with consideration of site-specific risk assessments.

(g)*Flowable fill* —a cementitious slurry consisting of a mixture of fine aggregate or filler, water, and cementitious materials which is used primarily as a backfill in lieu of compacted earth.

(h)*Granular road base* —road base typically constructed by spreading aggregates in thin layers of 150 mm (6 inches) to 200 mm (8 inches) and compacting each layer by rolling over it with heavy compaction equipment. The aggregate base layers serve a variety of purposes, including reducing the stress applied to the sub grade layer and providing drainage for the pavement structure. The granular sub base forms the lowest (bottom) layer of the pavement structure and acts as the principal foundation for the subsequent road profile.

(i)*Hot Mix Asphalt* —a hot mixture of asphalt binder and size-graded aggregate, which can be compacted into a uniform dense mass. Hot mix asphalt also includes hot mix asphalt sub bases and hot mix asphalt bases.

(j)*Microsurfacing* —polymer-modified slurry seal.

(k)*Portland cement concrete (PCC)* —pavements consisting of a PCC slab that is usually supported by a granular (made of compacted aggregate) base or sub base.

(l)*Pozzolanic* —a siliceous material which when combined with calcium hydroxide in the presence of moisture exhibits cementitious properties.

(m)*Slurry seal* —refers to a material composed of emulsified asphalt, aggregate, and mineral fillers, such as Portland cement or lime which is applied as a thin coating on top of asphalt concrete or Portland cement concrete road surfaces.

(n)*Stabilized base* —a non-asphaltic road base composed of aggregate mixed with a pozzolanic material which increases the bearing strength of the material.

(o)*Transportation construction projects* —these activities relate to the construction of roads and highways and include bases, sub bases, road surfaces, bridges, abutments, shoulders, and embankments. They are not related to any residential use.

(p)*Tri-State Mining District* —the lead-zinc mining areas of Ottawa County, Oklahoma, Cherokee County of southeast Kansas and Jasper, Newton, Lawrence, and Barry Counties of southwest Missouri.

(q)*Warm mix asphalt* —refers to a mixture of an asphalt binder with aggregate, paraffin or esterfied wax, and mineral additives that allow its use at temperatures much lower than hot mix asphalt. § 278.2 Applicability. These requirements apply to chat from the Tri-State Mining District used in transportation construction projects carried out, in whole or in part, using Federal funds. § 278.3 Criteria for use of chat in Federally funded transportation projects. Chat can be used in transportation construction projects carried out, in whole or in part, using Federal funds if:

(a)The chat is used in hot, warm or cold mix asphalt, in slurry seal, microsurfacing, or in epoxy seal; or

(b)The chat is used in Portland cement concrete, granular road base, flowable fill, stabilized road base or chip seal if, on a case by case basis either:

(1)Synthetic Precipitation Leaching Procedure

(SPLP)tests are conducted on the proposed material using EPA SW-846 Method 1312, incorporated by reference in § 260.11 of this chapter, and the leachate testing results show that concentrations in the leachate do not exceed the National Primary Drinking Water Standards for lead and cadmium and the fresh water chronic National Recommended Water Quality Criterion for zinc of 120 μg/l; or

(c)The use of chat has been authorized pursuant to a State or Federal response action. § 278.4 Certification and recordkeeping requirements.

(a)*Certification.* For chat used under the jurisdiction of the U.S. Department of Interior, Bureau of Indian Affairs, the EPA certification below is not applicable. In other jurisdictions, the acquirer shall:

(1)Submit a signed, written certification to the environmental regulatory agency in the State where the chat is to be used within 30 days of the date of acquisition. The certification shall contain the following:

(i)Location of origin of the chat;

(ii)Amount of chat acquired; and

(iii)Certification Statement: I certify under penalty of law that the chat used in this transportation project will meet EPA criteria found in § 278.3.

(2)*Transfer.* If the chat is sold or otherwise transferred to another party, the acquirer shall provide a copy of the certification to the new owner of the chat. The new owner shall submit a certification according to paragraph (a)(1) of this section. The new certification supersedes all previous certifications.

(3)*Recordkeeping.* The acquirer of chat, and any other person that receives the chat, will maintain copies of all of the following for three years; a copy of the certification following transmittal to the State department(s) of the environment, and, as appropriate; any SPLP testing results; or any site-specific risk assessments.

(b)[Reserved] [FR Doc. E7-13544 Filed 7-17-07; 8:45 am] BILLING CODE 6560-50-P 72 137 Wednesday, July 18, 2007 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 [Docket No. PRM-50-86] Sherwood Martinelli; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Denial of petition for rulemaking. SUMMARY: The Nuclear Regulatory Commission

(NRC)is denying a petition for rulemaking (PRM-50-86) submitted by Sherwood Martinelli. The petitioner requested that the NRC amend its regulations to provide financial protection for individuals harmed by releases of nuclear material following an incident or attack at a nuclear facility, and to require licensees to pay for satellite communication systems for nuclear power plant communities to “protect human health and the environment.” The petitioner also requested that nuclear facilities licensed by the NRC or the Federal government provide adequate funding to enable every family living within 10 miles of a nuclear facility to build, stock, and maintain a personal family shelter to allow families to shelter in place during releases of nuclear material following an incident or attack at a nuclear facility. ADDRESSES: Copies of the petition for rulemaking and NRC's letter to the petitioner may be examined at the NRC Public Document Room (PDR), Public File Area Room O-1 F21, 11555 Rockville Pike, Rockville, MD. These documents also may be viewed and downloaded electronically via the rulemaking Web site. The NRC maintains an Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at *http://www.nrc.gov/reading-rm/adams.html.* If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rulemaking, Directives, and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7163; e-mail: *MTL@nrc.gov.* SUPPLEMENTARY INFORMATION: The Petition The petitioner requested that the NRC amend its regulations to provide financial protection for individuals harmed by releases of nuclear material following an incident or attack at a nuclear facility, and to require licensees to pay for satellite communication systems for nuclear power plant communities to “protect human health and the environment.” The petitioner also requested that nuclear facilities licensed by the NRC or the Federal government provide adequate funding to enable every family living within 10 miles of a nuclear facility to build, stock, and maintain a personal family shelter to allow families to shelter in place during releases of nuclear material following an incident or attack at a nuclear facility. The petitioner also requested that the NRC amend its regulations so that anyone living within 10 miles of a licensed nuclear facility is able to demand an Independent Safety Assessment (ISA), which would include public review of onsite security and offsite evacuation plans for that licensee. The petitioner also sought other types of relief related to security issues at nuclear power plants. A notice of receipt of this petition was not published in the **Federal Register** . Reasons for Denial The NRC is denying this petition because the NRC has determined that PRM-50-86 requests the NRC to take actions that exceed the NRC's authority, requests that the NRC address issues that the NRC has already considered in previous rulemakings, and fails to adequately support its requests to revise NRC regulations. The petition requests the NRC to modify its regulations to require nuclear facilities licensed by the NRC or the Federal Government to provide adequate funding to enable every family living within 10 miles of a nuclear facility to build, stock, and maintain a personal family shelter to allow families to shelter in place during releases of nuclear material following an incident or attack at a nuclear facility. The NRC cannot grant this request, in part because the NRC is not authorized by Congress to make financial payments to individuals. Further, the petition does not establish that requiring licensees to pay for these shelters would be necessary, in light of existing NRC requirements on emergency preparedness, to provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. The petition also asks that NRC regulations be revised to require licensees to pay for satellite communication systems for nuclear power plant communities to “protect human health and the environment.” The petition does not demonstrate how requiring licensees to pay for these satellite communication systems would provide, in light of existing NRC requirements on emergency preparedness, reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. The petition requests that NRC rules be changed so that anyone living within 10 miles of a licensed nuclear facility is able to demand an ISA, which would include public review of onsite security and offsite evacuation plans for that licensee. The NRC already conducts detailed, objective inspections of licensed research and test reactors, operating power reactors, and fuel facilities. The NRC also performs assessments under a program called the Reactor Oversight Process

(ROP)at all operating power reactor facilities on a continuous basis. These assessments measure performance in seven fundamental areas to ensure safe plant operation. The ROP, as currently implemented, effectively incorporates the inspection elements of the 1996 Maine Yankee ISA. The NRC believes the ROP and NRC's regulatory framework effectively examine the same key aspects of plant safety as an ISA, but with a better focus on potentially risk-significant problems. The request for public review of onsite security plans cannot be granted because public review of these plans is not permissible. Allowing the details of these plans to be made public could aid adversaries. However, information concerning emergency plans is publicly available. Residents within a radius of approximately 10 miles from a nuclear power plant receive emergency information materials annually, including information about protective actions such as evacuation and sheltering. For more information concerning emergency plans, including public inspection of these plans, a resident should contact their local emergency management organization. The petition also seeks revisions to NRC regulations because the petitioner claims that the Price-Andersen Act , the structures of corporate organizations, and NRC regulations do not adequately provide financial protection for individuals harmed by releases of nuclear material following an incident or attack at a nuclear facility. This claim challenges a statutory framework that the NRC is not authorized to change. Further, the petition does not explain why the current NRC regulations do not assure that the public will receive prompt financial compensation under available indemnity and underlying financial protection for damage resulting from the hazardous properties of radioactive materials or radiation. The petition seeks other relief related to security issues at nuclear power plants. The petition does not provide significant new information or arguments that were not previously considered by the Commission in its final rule on the Design Basis Threat, which was published in the **Federal Register** on March 19, 2007 (72 FR 12705), and became effective on April 18, 2007. For the reasons cited in this document, the NRC denies this petition. Dated at Rockville, Maryland, this 12th day of July 2007. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E7-13924 Filed 7-17-07; 8:45 am] BILLING CODE 7590-01-P FEDERAL TRADE COMMISSION 16 CFR Part 24 Guides for Select Leather and Imitation Leather Products; Corrections AGENCY: Federal Trade Commission. ACTION: Request for public comments; correction. SUMMARY: The Federal Trade Commission published a document in the **Federal Register** on May 23, 2007 (72 FR 28906) requesting public comments on the Commission's Guides for Select Leather and Imitation Leather Products (“Leather Guides”). Inadvertently, the ADDRESSES Block of the **Federal Register** Notice did not state that if the Notice appeared at *http://www.regulations.gov,* members of the public could file an electronic comment through that Web site, as well as by accessing the following Web site: *https://secure.commentworks.com/ftc-leatherguides,* and following the instructions on the web-based form. FOR FURTHER INFORMATION CONTACT: Donald S. Clark, Secretary of the Commission, at

(202)326-2514. SUPPLEMENTARY INFORMATION: This is a summary of the FTC's Erratum. The ADDRESSES Block in the May 23, 2007 Notice is amended to add the following two sentences at the end of the first paragraph in the ADDRESSES Block: “If this notice appears at *http://www.regulations.gov,* you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it.” Donald S. Clark, Secretary. [FR Doc. E7-13833 Filed 7-17-07; 8:45 am] BILLING CODE 6750-01-P DEPARTMENT OF DEFENSE Department of the Army; Corps of Engineers 33 CFR Part 334 United States Navy Restricted Area, Naval Support Activity, Panama City, FL AGENCY: U.S. Army Corps of Engineers, DoD. ACTION: Notice of proposed rulemaking and request for comments. SUMMARY: The U.S. Army Corps of Engineers (Corps) is proposing to establish ten restricted areas at Naval Support Activity (NSA), Panama City (PC), Florida. NSA, Panama City, and its major tenant command, the Naval Surface Warfare Center (NSWC), have been recognized as one of the lead research, development, test and evaluation laboratories of the U.S. Navy. In addition, the Naval Diving and Salvage Training Center (NDSTC) relocated from the Washington Navy Yard to NSA PC and now hosts a consolidated training for the U.S. Army Corps of Engineers, U.S. Coast Guard, the Navy's satellite dive schools, the U.S. Marine Corps and the U.S. Air Force. As such, a large majority of military dive training is now concentrated at NSA, PC. The proposed restricted areas in Panama City waters meet strict military training parameters that cannot be duplicated elsewhere. Military training in and around St. Andrews Bay has existed in harmony with local boat traffic and development since 1945. NSA, PC requests to formalize these ongoing activities within the waters of St. Andrews Bay in efforts to maximize public safety and to preserve current military training vital to the Global War on Terror and to all service military readiness. DATES: Written comments must be submitted on or before August 17, 2007. ADDRESSES: You may submit comments, identified by docket number COE-2007-0017, by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *E-mail: david.b.olson@usace.army.mil.* Include the docket number COE-2007-0017 in the subject line of the message. *Mail:* U.S. Army Corps of Engineers, Attn: CECW-CO (David B. Olson), 441 G Street NW, Washington, DC 20314-1000. *Hand Delivery/Courier:* Due to security requirements, we cannot receive comments by hand delivery or courier. *Instructions:* Direct your comments to docket number COE-2007-0017. All comments received will be included in the public docket without change and may be made available on-line at *http://regulations.gov,* including any personal information provided, unless the commenter indicates that 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 regulations.gov web site is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail directly to the Corps 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 public docket and made available on the Internet. If you submit an electronic comment, we recommend 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 we cannot read your comment because of technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov.* All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as 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. Consideration will be given to all comments received within 30 days of the date of publication of this notice. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922 or Ms. Teresa Zar, U.S. Army Corps of Engineers, Jacksonville District, Panama City Regulatory Field Office at 850-763-0717 ext 26. SUPPLEMENTARY INFORMATION: Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3) the Corps is proposing to amend the regulations in 33 CFR part 334 by establishing ten separate restricted areas. Procedural Requirements a. *Review Under Executive Order 12866.* The proposed rules are issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply. b. *Review Under the Regulatory Flexibility Act.* The proposed rules have been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). Unless information is obtained to the contrary during the public notice comment period, the Corps expects that the economic impact of the proposed restricted areas would have practically no impact on the public, any anticipated navigational hazard or interference with existing waterway traffic. These proposed rules, if adopted, will have no significant economic impact on small entities. c. *Review Under the National Environmental Policy Act.* The Corps expects that these proposed regulations will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered. After it is prepared, it may be reviewed at the District office listed at the end of the FOR FURTHER INFORMATION CONTACT , above. d. *Unfunded Mandates Act.* These proposed rules do not impose an enforceable duty among the private sector and, therefore, are not a Federal private sector mandate and are not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501 *et seq.* ). We have also found under Section 203 of the Act, that small governments will not be significantly or uniquely affected by these rules. List of Subjects in 33 CFR, Part 334 Danger zones, Navigation (water), Restricted areas, Waterways. For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows: PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS 1. The authority citation for 33 CFR part 334 continues to read as follows: Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3). 2. Add § 334.761 to read as follows: § 334.761 Naval Support Activity Panama City; St. Andrews Bay; restricted areas.

(a)*The areas—*

(1)*Area AP-1.* Bounded by a line drawn in the direction of : latitude 30°10′00″ N, longitude 085°44′37″ W; latitude 30°10′00″ N, longitude 085°43′17″ W; latitude 30°09′51″ N, longitude 085°43′17″ W; latitude 30°09′50″ N, longitude 085°44′37″ W. 1.259 nm @ 185°T from center of Hathaway Bridge to NW corner; 1.659 nm @ 139°T to NE corner; 1.788 nm @ 143°T to SE corner; 1.426 nm @ 183°T to SW corner.

(2)*Area BA-1.* Bounded by a line drawn in the direction of: latitude 30°11′14″ N, longitude 085°44′59″ W; latitude 30°11′13″ N, longitude 085°44′32″ W; latitude 30°10′31″ N, longitude 085°44′32″ W; latitude 30°10′32″ N, longitude 085°44′59″ W @ 0.432 nm @ 268°T from center of Hathaway Bridge to NW corner; 63.8 yds @ 180°T to NE corner; 0.726 nm @ 180°T to SE corner; 0.825 nm @ 208°T to SW corner.

(3)*Area BA-2.* Bounded by a line drawn in the direction of: latitude 30°11′13″ N, longitude 085°44′ 32″ W; latitude 30°11′7″ N, longitude 085°44′0″ W; latitude 30°10′32″ N, longitude 085°44′0″ W; latitude 30°10′31″ N, longitude 085°44′32″ W. 63.8 yds @ 180°T from center of Hathaway Bridge to NW corner @ 0.489 nm @ 107°T to NE corner; 0.861 nm @ 147°T to SE corner; 0.726 nm @ 180°T to SW corner.

(4)*Area BA-3.* Bounded by a line drawn in the direction of: latitude 30°10′32″ N, longitude 085°44′59″ W; latitude 30°10′32″ N, longitude 085°44′9″ W; latitude 30°10′00″ N, longitude 085°44′9″ W; latitude 30°10′ 00″ N, longitude 085°44′40″ W. 0.825 nm @ 208°T from center of Hathaway Bridge to NW corner @ 0.797 nm @ 156°T to NE corner; 1.303 nm @ 165°T to SE corner; 1.266 nm @ 185°T to SW corner.

(5)*Area BA-4.* Bounded by a line drawn in the direction of: latitude 30°10′32″ N, longitude 085°44′9″ W; latitude 30°10′32″ N, longitude 085°42′35 W; latitude 30°10′0″ N, longitude 085°42′35″ W; latitude 30°10′00″ N, longitude 085°44′9″ W. 0.797 nm @ 156°T from center of Hathaway Bridge to NW corner; 1.835 nm @ 113°T to NE corner; 2.106 nm @ 127°T to SE corner; 1.303 nm @ 165°T to SW corner.

(6)*Area BA-5.* Bounded by a line drawn in the direction of: latitude 30°08′41″ N, longitude 085°41′25″ W; latitude 30°08′8″ N, longitude 085°40′48″ W; latitude 30°07′0″ N, longitude 085°42′29″ W; latitude 30°07′31″ N, longitude 085°43′9″ W. 3.734 nm @ 134°T from center of Hathaway Bridge to NW corner; 4.484 nm @ 134°T to NE corner; 4.616 nm @ 157°T to SE corner; 3.927 nm @ 162°T to SW corner.

(b)*The restrictions.*

(1)For the purposes of this section, “military security zones” are areas established by safety vessels that accompany each training exercise and ward off private boat traffic by offering them navigational advice to remain clear of the exercise.

(2)*Area AP-1.* In the area described in paragraph (a)(1) of this section, non-residents (i.e., boat owners who do not own property south of the area described in paragraph (a)(1) of this section) and their vessels may not enter or remain within the restricted area from 0700 hrs to 0400 hrs. Residents and their vessels may not enter or remain within military security zones established in the restricted area during training events. All other civilian water-borne activities (fishing, trolling, waterskiing, jet-skiing, etc.) are prohibited in the restricted area during training activities.

(3)*Areas BA-1 through BA-5.* In the areas described in paragraphs (a)(2) through (a)(6) of this section, no person or vessel may enter or remain within military security zones established in the restricted areas during training events. All other civilian water-borne activities (fishing, trolling, waterskiing, jet-skiing, etc.) are prohibited in the restricted areas during training activities.

(c)*Enforcement.* The regulations in this section shall be enforced by the Officer in Charge, Naval Support Activity Panama City, Panama City Beach Florida, and such agencies as he/she may designate. 3. Add § 334.762 to read as follows: § 334.762 Naval Support Activity Panama City; North Bay and West Bay; restricted areas.

(a)*The areas—*

(1)*Area NB-1.* Bounded by a line drawn in the direction of: latitude 30°12′16″ N, longitude 085°44′14″ W; latitude 30°12′16″ N, longitude 085°43′1″ W; latitude 30°11′16″ N, longitude 085°44′14″ W; latitude 30°11′17″ N, longitude 085°44′49″ W. 1.046 nm @ 014°T from center of Hathaway Bridge to NW corner; 1.662 nm @ 053°T to NE corner; 0.262 nm @ 087°T to SE corner; 0.248 nm @ 278°T to SW corner.

(2)*Area NB-2.* Bounded by a line drawn in the direction of: latitude 30°14′0″ N, longitude 085°44′14″ W; latitude 30°14′0″ N, longitude 085°41′51″ W; latitude 30°12′16″ N, longitude 085°43′1″ W; latitude 30°12′ 16″ N, longitude 085°44′14″ W. 2.762 nm @ 005°T from center of Hathaway Bridge to NW corner; 3.584 nm @ 040°T to NE corner; 1.662 nm @ 053°T to SE corner; 1.046 nm @ 014°T to SW corner.

(3)*Area NB-3.* Bounded by a line drawn in the direction of: latitude 30°16′10″ N, longitude 085°46′52″ W; latitude 30°17′ ″ N, longitude 085°45′34″ W; latitude 30°14′56″ N, longitude 085°43′45″ W; latitude 30°14′ 1″ N, longitude 085°44′ 59″ W. 5.313 nm @ 338°T from center of Hathaway Bridge to NW corner; 5.852 nm @ 351°T to NE corner; 3.742 nm @ 010°T to SE corner; 2.802 nm @ 352°T to SW corner.

(b)*The restrictions.*

(1)In the areas described in paragraphs (a)(1) through (a)(3) of this section, no person or vessel may enter or remain within military security zones established in the restricted area during training events. For the purposes of this section, “military security zones” are areas established by safety vessels that accompany each training exercise and ward off private boat traffic by offering them navigational advice to remain clear of the exercise. All other civilian water-borne activities (fishing, trolling, waterskiing, jet-skiing, etc.) are prohibited in the restricted areas during training activities.

(a)*The area.* Bounded by a line drawn in the direction of: latitude 30°10′29″ N, longitude 085°48′20″ W; latitude 30°07′58″ N, longitude 085°44′44″ W; latitude 30°05′24″ N, longitude 085°47′29″ W; latitude 30°07′55″ N, longitude 085°51′5″ W. 4.921 nm @ 312°T from north jetty to St. Andrews Bay, (Colregs demarcation line) to NW corner; 0.944 nm @ 324°T to NE corner; 3.451 nm @ 238°T to SE corner; 6.098 nm @ 277°T to SW corner.

(b)*The restrictions.* In the area described in paragraph (a)(2) of this section, no person or vessel may enter or remain within military security zones established in the restricted area during training events. For the purposes of this section, “military security zones” are areas established by safety vessels that accompany each training exercise and ward off private boat traffic by offering them navigational advice to remain clear of the exercise. All other civilian water-borne activities (fishing, trolling, waterskiing, jet-skiing, etc.) are prohibited in the restricted areas during training activities.

(c)*Enforcement.* The regulations in this section shall be enforced by the Officer in Charge, Naval Support Activity Panama City, Panama City Beach Florida, and such agencies as he/she may designate. Dated: July 13, 2007. Lawrence A. Lang, Acting Chief, Operations, Directorate of Civil Works. [FR Doc. E7-13933 Filed 7-17-07; 8:45 am] BILLING CODE 3710-92-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 25 [IB Docket No. 07-101; FCC 07-86] Proposal to Allocate Spectrum and Adopt Rules to License Vehicle-Mounted Earth Stations in Certain Ku-band Frequencies Allocated to the Fixed-Satellite Service AGENCY: Federal Communications Commission. ACTION: Notice of proposed rulemaking. SUMMARY: The Federal Communications Commission seeks comment on whether to license Vehicle-Mounted Earth Stations as an application of the Fixed-Satellite Service in the conventional and extended Ku-band frequencies. The Commission initiates this proceeding in response to a petition for rulemaking filed by General Dynamics SATCOM Technologies, Inc. General Dynamics asks the Commission to amend parts 2 and 25 of the rules to allocate spectrum for use with VMES in the FSS in the Ku-band uplink at 14.0-14.5 GHz and Ku-band downlink at 11.7-12.2 GHz on a primary basis, and in the extended Ku-band downlink at 10.95-11.2 GHz and 11.45-11.7 GHz on a non-protected basis, and to adopt Ku-band VMES licensing and service rules modeled on the Commission's rules for Ku-band Earth Stations on Vessels. The Notice of Proposed Rulemaking seeks comment on the proposed adoption of co-primary allocation for VMES applications in the conventional Ku-band frequencies, and also seeks comment on service rules for VMES, possibly modeled on the current ESV rules. The NPRM observes that some of the broader applications of VMES, involving use, by the general public, of ultra-small antennas on cars and trucks, raise additional technical questions with respect to compliance with the Commission's Ku-band interference avoidance requirements. The NPRM therefore seeks comment on whether the broad commercial use, by the general public, of ultra-small antennas on vehicles traversing throughout the United States raises the potential for harmful interference to other FSS licensees or Federal government space research service and radio astronomy service operations, and, if so, whether there are technical rules that the Commission could adopt to mitigate against such harms. DATES: Comments are due on or before August 17, 2007 and reply comments are due on or before September 4, 2007. Public and agency comments on the Initial Paperwork Reduction Act of 1995 analysis are due September 17, 2007. ADDRESSES: You may submit comments, identified by IB Docket No. 07-101, 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. • *Mail:* Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to the Commission at 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. The Commission's mail contractor, Vistronix, 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. All filings must be addressed to the Commission's Secretary at Office of the Secretary, Federal Communications Commission. • *People with Disabilities:* Contact the Commission 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: Paul Locke, Policy Division, International Bureau at

(202)418-0765. For additional information concerning the information collection(s) contained in this document, contact Judith B. Herman at 202-418-0214, or via the Internet at *Judith-B.Herman@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rulemaking

(NPRM)in IB Docket No. 07-101, FCC 07-86, adopted May 9, 2007 and released on May 15, 2007. The full text of the NPRM is available for public inspection and copying during regular business hours at the Commission's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or via e-mail *FCC@BCPIWEB.com.* Pursuant to the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis

(IRFA)of the possible significant economic impact on small entities by the proposals considered in the NPRM. The text of the IRFA is set forth in Appendix C of the NPRM. Written public comments are requested on this IRFA. Comments must be filed in accordance with the same filing deadlines for comments on the NPRM, and they should have a separate and distinct heading designating them as responses to the IRFA. In addition, the Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget

(OMB)to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due September 17, 2007. Comments should address:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;

(b)the accuracy of the Commission's burden estimates;

(c)ways to enhance information collected; and

(PRA)requirements proposed in the Commission's NPRM (FCC 07-86) to establish rules for the licensing of the VMES service. In the NPRM, the Commission proposes new information collection requirements applicable to potential VMES licensees. The Commission proposes that potential VMES operators submit applications (FCC Form 312) and exhibits thereto to the Commission to demonstrate that they comply with the Commission's legal and/or engineering rules. ( **Note:** FCC Form 312 is approved by the Office of Management and Budget under OMB Control Number 3060-0678. There are additional and ongoing rulemakings that may require modification to FCC Form 312. Because the Commission intends to modify FCC Form 312 only after all the applicable rulemakings have been completed, there may be a period of time during which FCC Form 312 may not be altered to accommodate potential VMES applications. In the interim, potential VMES applicants would utilize FCC Form 312 and submit attachments providing the relevant information and certifications reflected any adopted rules). Additionally, the Commission proposes to apply data logging requirements, requiring network operators to maintain information on the satellites that each terminal uses, the operating frequencies and bandwidths used, the time of day, the location, and a point of contract within the United States with the authority and capability to mute the potential VMES transmitters. The potential VMES operator must maintain the information for a year and make it available to appropriate entities within 24 hours of request. The Commission also seeks comment on requiring an automatic transmitter identification systems

(ATIS)for each satellite uplink transmission. Without the information collected through the Commission's proposed VMES licensing procedures, it may not be feasible to identify sources of harmful interference and to ensure, if needed, that the interfering transmissions are ceased. Summary of Notice of Proposed Rulemaking A. Background With the NPRM, the Federal Communications Commission (Commission) seeks comment on whether to license VMES as an application of the FSS in the conventional and extended Ku-band frequencies. In its petition for rulemaking (Petition), General Dynamics asks the Commission to amend parts 2 and 25 of the rules to allocate spectrum for use with VMES in the FSS in the Ku-band uplink at 14.0-14.5 GHz and Ku-band downlink at 11.7-12.2 GHz on a primary basis, and in the extended Ku-band downlink at 10.95-11.2 GHz and 11.45-11.7 GHz on a non-protected basis, and to adopt Ku-band VMES licensing and service rules modeled on the Commission's rules for Ku-band ESVs. As the Petition urges, the NPRM seeks comment on the proposed adoption of a co-primary allocation for VMES applications in the conventional Ku-band frequencies, and also seeks comment on service rules for VMES, possibly modeled on the current ESV rules. The NPRM discusses and seeks comment on rules and procedures to license VMES networks for operation only over GSO FSS satellites in the Ku-band. Earth stations on mobile land vehicles currently operate as Land Mobile Satellite Service

(LMSS)applications, and not as FSS applications, in the conventional Ku-band. In the Ku-band uplinks, LMSS operates on a secondary, and not a primary, basis. A primary allocation for VMES would provide protection from interference to VMES terminals as well as give VMES equal status in coordinating emissions from VMES terminals with adjacent FSS systems, as if VMES terminals were FSS earth stations. Certain commenters on the Petition propose to promote VMES terminals that use smaller antennas and less accurate antenna pointing systems than those that General Dynamics currently uses for the VMES system it has been operating since November 2004 pursuant to special temporary authority and experimental authority. We have concerns that some classes of proposed VMES terminals would not operate compatibly in the Commission's Ku-band two-degree satellite spacing environment for the FSS. The NPRM seeks comment on how to differentiate compatible and non-compatible VMES terminals. In addition, we invite comment on whether we should treat applications that may not be able to meet the VMES requirements that we would adopt, but that otherwise might be able to engineer their systems to meet Ku-band FSS interference avoidance requirements, as applications for LMSS systems that might be licensed under the existing secondary LMSS allocation in the 14.0-14.5 GHz FSS uplink band and as non-conforming in the 11.7-12.2 GHz downlink band, with specific license conditions to protect FSS licensees and their customers from harmful interference. We also seek comment on licensing and service rules for VMES terminals if they are granted primary allocation status. B. Allocation Issues In asking for comment on whether we should grant primary status to VMES, or classes of VMES, in the conventional Ku-band, we observe that VMES, like ESV, is a mobile system, but with significant differences. We seek comment on these differences in the context of evaluating whether VMES, or classes of VMES, can operate compatibly in the FSS two-degree spacing environment. The significant identified differences include: *Antenna Size.* The Petition suggests that, although General Dynamics proposes to provide VMES for U.S. military applications, there will be commercial applications for this technology. Commenters suggest that the Commission should develop rules that would permit large-scale deployment of mobile broadband systems to the public using ultra-small antennas. Both military and commercial VMES applications would use antennas smaller than those typically found on VSATs or ESVs. The original two-degree FSS VSAT interference rules were predicated on the use of antennas with a diameter of 1.2 meters or greater (i.e., 3.9 feet or larger), operating from fixed locations. ESVs typically use antennas with a diameter on the order of 1.2 meters. General Dynamics currently is using antennas as small as 0.45 meters (17.7 inches) and supporters of the commercial applications of VMES are in favor of licensing even smaller antennas. The ultra-small antennas operating in a mobile environment envisioned for large-scale commercial deployment of VMES have a greater potential of causing interference to adjacent satellites than the antennas currently authorized for the band and would lack the interference rejection qualities of the larger antennas. *Antenna Tracking Systems.* ESV operators are required to use antenna systems that accurately track the wanted satellite as the ship moves, pitches and rolls. General Dynamics uses very precise, and very expensive, tracking systems for its military VMES antennas. Some proponents of commercial applications would lower the pointing accuracy requirements for VMES, resulting in lower-cost tracking systems and, potentially, increasing the level of interference to other FSS satellites. *Ubiquity.* ESVs are likely to be used only by relatively large vessels, capable of carrying the large ESV dishes, and are geographically limited to operating on waterways and in port. VMESs have been placed on vehicles capable of off-road travel and would have access to practically all of the United States. *Tracking Accuracy.* Because of the size of the vessels on which ESVs are mounted, ESVs undergo smaller accelerations than earth stations on mobile land vehicles, making it easier for the ESV antenna tracking system to track the wanted satellite. In fact, General Dynamics concedes that it is impossible to construct a VMES antenna tracking system that will meet the 0.2 degree antenna pointing requirement under all possible conditions. *Quantity.* If applications of VMES are permitted for use by the general public, the number of VMES terminals that potentially could be operated is significantly larger than the number of ESV systems. We seek comment on the relevance of these differences between VMESs and ESVs to the question of whether we should grant primary status for VMES as an application of the FSS. Additionally, we ask commenters to consider other factors, not listed, that may be relevant. We discuss each Ku-band separately. *11.7-12.2 GHz Band.* We seek comment on whether to establish a new non-Federal footnote for the 11.7-12.2 GHz downlink band to reflect that VMES terminals may operate with FSS space stations. Currently, in this band, there is no allocation in the U.S. Table of Frequency Allocations for the Mobile Satellite Service (MSS), including LMSS, and domestic downlink signals operate under ITU Radio Regulation 4.4 (non-interference and non-protection) in the band. *10.95-11.2 GHz and 11.45-11.7 GHz Bands.* We seek comment on whether VMES operations in these extended Ku-bands should be permitted on a non-protected basis with respect the Fixed Service (FS). The FS uses these bands and ESV operators, for example, must accept interference from all current and future FS operations in the bands. Because VMES downlink operations would not interfere with current or future FS operations, and because VMESs would not receive protection from the FS in these bands, we would propose to make the determination that VMESs operating domestically in these bands would not be likely to interfere with or restrict other authorized operations in the bands. *14.0-14.2 GHz Band.* Space research services

(SRS)are allocated to this band on a secondary basis. We recognize the importance of protecting these facilities from receiving harmful interference. We seek comment on the feasibility of allowing VMES operations within a 125 kilometer protection zone around operational National Aeronautics and Space Administration

(NASA)space research Tracking and Data Relay Satellite Systems (TDRSS) facilities. We propose, as a condition of the VMES license, to prohibit VMES operators from operating in the band within 125 kilometers of the two existing TDRSS sites. We solicit comment on whether we should allow VMES operators to coordinate their proposed operations to resolve any potential harmful interference concerns regarding SRS facilities. VMES operators would need to complete coordination prior to operating within 125 kilometers of the two existing TDRSS sites. Should NASA seek to provide similar protection to future TDRSS sites, the National Telecommunications and Information Administration

(NTIA)should notify the Commission's International Bureau (Bureau) that a TDRSS site is nearing operational status. The Bureau then would issue a notice requiring all Ku-band VMES operators to cease operations in the band within 125 kilometers of the new site until they had coordinated with the new site. We solicit comment on which technical measures should be incorporated into VMES terminals to assist operators in meeting any coordination obligations. We seek comment on how the coordination process should work and whether VMES licensees should go directly to NASA or work through the Commission. We would expect the coordination to be conducted on an equal basis between NASA and the VMES operator, even though the SRS is a secondary allocation. *14.2-14.4 GHz Band.* We seek comment on whether to allow VMES operations to communicate with FSS space stations in the band. The band is an exclusive non-Federal band allocated on a primary basis to FSS for uplink operations and on a secondary basis to the MSS. *14.4-14.5 GHz Band.* We seek comment on the feasibility of coordination between VMES and Radio Astronomy Service

(RAS)sites to preclude harmful interference to the RAS as observations are performed. Specifically, we seek comment on adopting license conditions that would require VMES licensees planning to travel in the vicinity of certain radio observatories to coordinate their proposed operations to resolve any potential interference concerns. We seek comment on how the coordination process would work and whether VMES licensees should go directly to the National Science Foundation

(NSF)or work through the Commission. Additionally, we seek comment on technical measures to be incorporated into terminals to assist with coordination and ask whether unwanted emissions from VMES terminals need to be regulated to protect RAS stations. *Proposed Footnotes to U.S. Table of Frequency Allocations.* We propose to add the following footnotes to the U.S. Table of Frequency Allocations set out in 47 CFR 2.106: NGxxx In the bands 10.95-11.2 GHz and 11.45-11.7 GHz (space-to-Earth), Vehicle-Mounted Earth Stations

(VMES)as regulated under 47 CFR part 25 may be authorized to communicate with space stations of the fixed-satellite service but must accept interference from stations of the fixed service operating in accordance with the Commission's Rules. NGyyy In the bands 11.7-12.2 GHz (space-to-Earth) and 14.0-14.5 GHz (Earth-to-space), Vehicle-Mounted Earth Stations

(VMES)as regulated under 47 CFR part 25 are an application of the fixed-satellite service and may be authorized to communicate with space stations of the fixed-satellite service on a primary basis. We seek comment on the proposed footnotes. C. Technical and Operational Issues *ESV Rules as Possible Model for VMES.* We seek comment on whether, given the significant differences between ESVs and VMES, the ESV rules, as applied to VMES, would provide sufficient protection to the FSS. We seek comment on applying 47 CFR 25.222 and related rules to VMES terminals communicating with FSS networks. The use of ultra-small antennas proposed by some commenters implies the use of FSS earth stations with broad beam widths and reduced side-lobe isolation that, in turn, raises the potential for increased interference power being received by other FSS satellites. We seek comment on whether VMES systems are sufficiently similar in operation to ESV systems to support adoption of the ESV rules to VMES without weakening the Commission's two-degree satellite spacing environment. We ask whether it is reasonable to structure service rules for VMES that use an EIRP-density envelope that is lower than that used for VSATs and ESVs. For example, would a rule requiring a one-dB reduction in the EIRP-density envelope, or a certification from adjacent satellite operators, be reasonable for VMES applications? Is there a reason to use a larger or smaller reduction than one db in EIRP-density to protect FSS neighboring satellites? *Proposed Deviations from ESV Rules.* We also seek comment on VMES service rules that certain commenters on the Petition suggest should deviate from the ESV model. For example, we ask if adopting a “fraction of the antenna beam width” approach, proposed by some commenters, seems reasonable and, if so, how we should determine the fraction that would apply. Should adoption of this approach be limited to peak EIRP-densities from a single terminal or to the aggregate emissions from multiple, co-frequency terminals and, if so, what should that value be? We seek technical descriptions and typical link-budgets from commenters, to indicate the types of modulation and random access techniques, and the types and quality of services, that might be expected to be supplied by very low-gain, broad-beam antennas. We also seek technical comment on antenna technologies that would protect adjacent satellites without the need for stringent antenna pointing accuracies. In response to suggested revisions to the ESV power-density rules, as applied to VMES, to accommodate VMES networks using aggregate system power control, we seek comment on the desirability of adopting rules for variable data rates, and thus variable power-density, spread-spectrum VMES systems. Should the Commission change the 10*log(N) rule, as applied to VMES? Commenters should address the specific changes to the rules that would be required to allow the efficient use of variable power-density spread-spectrum systems while still ensuring that the systems meet the EIRP-density envelope in the aggregate. We propose to await the results of an ongoing proceeding streamlining the part 25 rules rather than seek additional comment in this proceeding on the use of contention tables, as proposed by commenters. *Data Logging Requirements.* We seek comment on General Dynamics' proposal that we not apply the ESV data logging requirements to VMES. We seek comment on how, if at all, the use of VMES terminals in the Ku-band might suggest a different approach from the data logging rule applied to ESV terminals in the Ku-bands. *Threshold Antenna Size Downlink Protections.* We seek comment on a commenter's proposal to amend 47 CFR 25.209 to set a threshold antenna size, in the 11.7-12.2 GHz downlink band, above which a VMES allocation would be primary and receive appropriate interference protection and below which it would be secondary and thus less protected. What would be an appropriate threshold size and how would this threshold requirement compare with the existing requirement in 47 CFR 25.209? *Power Densities in Directions Other than the GSO Plane.* We seek comment on adopting, for VMES antennas as we did for ESVs operating in the conventional Ku-band, a three-degree starting angle for the EIRP envelope in all directions other than along the Geo-stationary Orbit (GSO). We ask whether we should modify the current ESV non-GSO plane EIRP-density envelopes to accommodate small VMES antennas. We seek comment on the potential for interference to and from possible NGSO FSS systems as well as the possible trade-offs between relaxing off-axis EIRP-density limits in directions away from the GSO plane, and the types, sizes and costs of antenna technology under existing versus related power-density limits. *Radiation Hazard Requirements.* We ask commenters to describe what radiation hazards concerns may exist and what steps might be taken to resolve any potential concerns. We ask for comment on how exposure concerns and necessary rules for military applications, such as those proposed by General Dynamics, may differ from VMES use as a general commercial application. We seek comment on whether to require cautionary labeling for all VMES terminals and whether we should recommend professional installation for subscriber transceiver antennas. *Equipment Certification.* We would propose to certify VMES terminals pursuant to our part 2 rules to ensure that they comply with the technical rules adopted for the service. We seek comment on this and other procedures that commenters may consider warranted, asking commenters to explain why other procedures would serve the public interest better than certification. *Limitations on the Use of VMES.* We seek comment on our concern that the aggregation of emissions from ultra-small terminals may increase the risk of harmful interference to other FSS users, including adjacent satellites farther than six degrees from the target satellite. We seek comment on whether the use of ultra-small antennas potentially could expose FSS satellites farther away from the target satellite to the same or higher level of interference power than satellites directly adjacent to the target satellite and, if this scenario is likely, whether we should adopt rules designed to prevent such potential interference concerns. Should we propose an EIRP-density envelope that is different from the envelope for ESVs? Should a different EIRP envelope apply if VMES pointing restrictions are based on some fraction of the antenna beam width? Are there other methods by which we might ensure that VMES use of the 14.0-14.5 GHz band would not cause harmful interference to adjacent FSS satellites, including those farther than six degrees from the target satellite? For example, should we propose to limit the use of VMES only to commercial contracts for government uses? Finally, should the Commission apply an automatic transmitter identification system

(ATIS)to VMES terminals? ATIS transmits encoded subcarrier messages that assist with identifying a source of interference. Which characteristics of the signal should be identified? *Blanket Licensing.* We would propose to require that an applicant provide a point of contact for maintaining information about the frequencies that each individual vehicle uses and then to issue a blanket authorization for an applicant's system of VMES terminals. In addition, we seek comment on whether to provide for the licensing of individual earth stations, using the same technical criteria applied to antennas in a blanket-licensed VMES network. We ask for comment on specific rule revisions and modifications to FCC Form 312 to accommodate applications for VMES systems. *ALSAT Authority.* We seek comment on whether we should authorize Ku-band VMES operators to operate with any U.S.-license satellite and non-U.S. satellites on the Permitted Space Station List using the parameters consistent with earth stations, or whether we instead should limit VMES access only to individual satellites. We would propose that ALSAT authority not be available to those VMES applicants that must coordinate with adjacent satellite operators, especially if the VMES terminals exceed the proposed off-axis EIRP-density requirements. *License Terms.* We seek comment on licensing VMES operations for a term of fifteen years, similar to the license terms for other licensed networks of earth stations. Ex Parte Presentations This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations 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. Other rules pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules as well. Paperwork Reduction Act The NPRM contains proposed new and modified information collection(s). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget

(OMB)to comment on the information collection(s) contained in the NPRM, as required by the Paperwork Reduction Act of 1995, Public Law No. 104-13. Public and agency comments are due September 17, 2007. Comments should address:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;

(b)the accuracy of the Commission's burden estimates;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(IRFA)of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Amendment of Parts 2 and 25 of the Commission's Rules to Allocate Spectrum and Adopt Service Rules and Procedures to Govern the Use of Vehicle-Mounted Earth Stations in Certain Frequency Bands Allocated to the Fixed Satellite Service, Notice of Proposed Rulemaking. 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 NPRM provided in paragraph 88 of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the **Federal Register** . A. Need for, and Objectives of, the Proposed Rules In the NPRM the Commission makes proposals and seeks information on measures to provide a level of regulatory certainty to government, space research, radio astronomy, and fixed satellite service operators regarding operations of Vehicle-Mounted Earth Stations (VMES). As discussed in greater detail below, the Commission seeks comment on rules and procedures to license VMES for operation in the Ku-band similar to the Commission's current licensing rules for Earth Stations on Vessels

(ESVs)that operate in the Ku-band, with appropriate modifications. The record established in the proceeding will allow the Commission to determine the effect of authorizing VMES terminals and will facilitate the development of any future rules for VMES. Any future rules would be designed to support the deployment of VMES terminals to the benefit of the American public without adversely affecting the operation and continued growth of incumbent radio services. In this regard, the objective is to create a licensing program that ensures incumbent radio services protection against harmful interference. B. Legal Basis The NPRM is adopted pursuant to sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), and 308 of the Communications Act of 1934, as amended, 47 U.S.C. sections 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308. C. Description and Estimate of the Number of Small Entities to Which the Proposals Will Apply The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the SBA. Below, we further describe and estimate the number of small entity licensees that may be affected by the adopted rules. *Satellite Telecommunications.* The SBA has developed a small business size standard for Satellite Telecommunications Carriers. This category “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” According to Census Bureau data for 2002, there were 371 firms in the category that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, 26 firms had annual receipts of $10 million to $24,999,990, and 38 firms had annual receipts of $25 million or more. Thus, under this size standard, the majority of firms can be considered small. A second category for international service providers, called “Other Telecommunications,” “comprises establishments primarily engaged in

(1)providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or

(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 303 firms had annual receipts of under $10 million, 15 firms had annual receipts of $10 million to $24,999,999, and 14 firms had annual receipts of $25 million or more. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. *Space Stations (Geostationary).* Commission records reveal that there are approximately 15 space station licensees authorized for use in the Ku-band. We do not request nor collect annual revenue information, and thus are unable to estimate of the number of geostationary space stations that would constitute a small business under the SBA definition cited above, or apply any rules providing special consideration for Space Station (Geostationary) licensees that are small businesses. *Fixed Satellite Transmit/Receive Earth Stations.* Currently there are approximately 2,532 operational fixed-satellite transmit/receive earth stations authorized for use in the Ku-band. The Commission does not request or collect annual revenue information, and thus is unable to estimate the number of earth stations that would constitute a small business under the SBA definition. *Cellular Licensees.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements The NPRM seeks comment on whether to expand the applicability of the current ESV rules to VMES. The proposed VMES rules, if adopted, would require satellite telecommunications operators to establish a database for tracking the location of VMES remote earth stations. This database would assist investigations of interference claims. The NPRM seeks comment on this proposal, including the effectiveness and utility of the proposal, and seeks comment regarding possible alternatives. The proposed rules, if adopted, also would require VMES operators to name a point of contact to maintain information about location and frequencies used by VMES terminals. Such information would assist in investigating interference claims. The Commission does not expect significant costs associated with these proposals, if adopted. Therefore, we do not anticipate that the burden of compliance would be greater for smaller entities. The NPRM seeks comment on possible methods for coordinating VMES operations with space research service and radio astronomy operations. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The RFA requires that, to the extent consistent with the objectives of applicable statutes, the analysis shall discuss significant alternatives such as:

(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 and reporting requirements under the rule for small entities;

(3)the use of performance, rather than design, standards; and

(4)an exemption from coverage or the rule, or any part thereof, for small entities. This NPRM solicits comment on alternatives for more efficient processing of VMES applications and simplification of VMES procedures, for example, by migrating from non-conforming use licensing to a licensing method that would provide for licenses with terms of fifteen years. The NPRM also seeks comment on streamlining the application process for VMES operations by permitting blanket licensing of multiple VMES terminals in a single application, as an alternative to requiring all VMES terminals to be licensed individually. Adoption of some of these proposals would simplify the application process for VMES and establish licensing terms consistent with other satellite-based services, such as ESV. Thus, adoption of the proposed rules should reduce the costs associated with obtaining and maintaining authority to operate a VMES network. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules None. Comment Filing Procedures Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments in response to this NPRM no later than on or before August 17, 2007. Reply comments to these comments may be filed no later than on or before September 4, 2007. All pleadings are to reference IB Docket No. 07-101. Comments may be filed using the Commission's Electronic Comment Filing System

(ECFS)or by filing paper copies. Parties are strongly encouraged to file electronically. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to *http://www.fcc.gov/cgb/ecfs/* . Parties should transmit one copy of their comments to the docket in the caption of this rulemaking. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions 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. Parties choosing to file by paper must file an original and four copies of each filing in IB Docket No. 07-101. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. The Commission's mail contractor, Vistronix, 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. Comments submitted on diskette should be on a 3.5 inch diskette formatted in an IBM-compatible format using Word for Windows or compatible software. The diskette should be clearly labeled with the commenter's name, proceeding (including the docket number, in this case, IB Docket No. 07-101), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. All parties must file one copy of each pleading electronically or by paper to each of the following:

(1)The Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone

(202)488-5300, facsimile

(202)488-5563, or via e-mail at *FCC@BCPIWEB.COM* ;

(2)Howard Griboff, International Bureau, 445 12th Street, SW., Washington, DC 20554, e-mail *Howard.Griboff@fcc.gov;*

(3)Paul Locke, International Bureau, 445 12th Street, SW., Washington, DC 20554, e-mail *Paul.Locke@fcc.gov* ;

(4)Kathleen Collins, International Bureau, 445 12th Street, SW., Washington, DC 20554, e-mail *Kathleen.Collins@fcc.gov.* Comments and reply comments and any other filed documents in this matter may be obtained from Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at

(202)488-5300, via facsimile

(202)488-5563, or via e-mail at *FCC@BCPIWEB.COM* . The pleadings also will be available for public inspection and copying during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554 and through the ECFS, accessible on the Commission's World Wide Web site, *http://www.fcc.gov* . Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments also must comply with § 1.49 and all other applicable sections of the Commission's rules. All parties are encouraged to utilize a table of contents, and to include the name of the filing party and the date of the filing on each page of their submission. We also strongly encourage that parties track the organization set forth in this NPRM in order to facilitate our internal review process. Commenters who file information that they believe is proprietary may request confidential treatment pursuant to § 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. *See* Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on Reconsideration, FCC 99-262, 14 FCC Rcd 20128 (1999). Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act

(FOIA)must be publicly disclosed pursuant to an appropriate request. *See* 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, we note that the Commission has the discretion to release information on public interest grounds that does fall within the scope of an FOIA exemption. Accordingly, *it is ordered* that, pursuant to the authority contained in sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308, this Notice of Proposed Rulemaking is *adopted* . *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center *shall send* a copy of this Notice of Proposed Rulemaking, including the initial regulatory flexibility analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* (1981). List of Subjects in 47 CFR Parts 2 and 25 Telecommunications, Satellites. Federal Communications Commission. Marlene H. Dortch, Secretary. Proposed Rules For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 2 and 25 to read as follows: PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 2. Amend § 2.106 as follows: a. Revise pages 45, 46 and 47 of the Table. b. In the list of Non-Federal Government footnotes, add footnotes NGxxx and NGyyy in numerical order. The revisions and additions read as follows: § 2.106 Table of Frequency Allocations. BILLING CODE 6212-01-P EP18JY07.000 EP18JY07.001 EP18JY07.002 BILLING CODE 6712-01-C NON-FEDERAL GOVERNMENT

(NG)FOOTNOTES NGxxx In the bands 10.95-11.2 GHz and 11.45-11.7 GHz (space-to-Earth), Vehicle-Mounted Earth Stations

(VMES)as regulated under 47 CFR part 25 may be authorized to communicate with space stations of the fixed-satellite service but must accept interference from stations of the fixed service operating in accordance with the Commission's rules. NGyyy In the bands 11.7-12.2 GHz (space-to-Earth) and 14.0-14.5 GHz (Earth-to-space), Vehicle-Mounted Earth Stations

(VMES)as regulated under 47 CFR part 25 are an application of the fixed-satellite service and may be authorized to communicate with space stations of the fixed-satellite service on a primary basis. PART 25—SATELLITE COMMUNICATIONS 3. The authority citation for part 25 continues to read as follows: Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309 and 332 of the Communications Act, as amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise noted. 4. Amend § 25.115 by revising paragraph (a)(2)(iii) to read as follows: § 25.115 Application for earth station authorizations.

(a)* * *

(2)* * *

(iii)The earth station is not an ESV or a VMES. 5. Amend § 25.130 by revising the introductory text of paragraph

(a)to read as follows: § 25.130 Filing requirements for transmitting earth stations.

(a)Applications for a new or modified transmitting earth station facility shall be submitted on FCC Form 312, and associated Schedule B, accompanied by any required exhibits, except for those earth station applications filed on FCC Form 312EZ pursuant to § 25.115(a). All such earth station license applications must be filed electronically through the International Bureau Filing System

(IBFS)in accordance with the applicable provisions of part 1, subpart Y of this chapter. Additional filing requirements for Earth Stations on Vessels are described in §§ 25.221 and 25.222 of this part. Additional filing requirements for Vehicle-Mounted Earth Stations are described in § 25.XXX of this part. In addition, applicants not required to submit applications on Form 312EZ, other than ESV or VMES applicants, must submit the following information to be used as an “informative” in the public notice issued under § 25.151 as an attachment to their application: 6. Amend § 25.132 by revising paragraph (b)(3) to read as follows: § 25.132 Verification of earth station antenna performance standards.

(b)* * *

(3)Applicants seeking authority to use an antenna that does not meet the standards set forth in § 25.209(a) and (b), pursuant to the procedure set forth in § 25.220 or subject to rules in § 25.XXX, are required to submit a copy of the manufacturer's range test plots of the antenna gain patterns specified in paragraph (b)(1) of this section. 7. Amend § 25.201 by adding the definition of “Vehicle-Mounted Earth Station (VMES)” to read as follows: § 25.201 Definitions. *Vehicle-Mounted Earth Station (VMES)* . A VMES is an earth station, operating from a motorized vehicle that travels primarily on land, that receives from and transmits to fixed-satellite space stations and operates pursuant to the requirements set out in § 25.XXX of this part. 8. Amend § 25.202 by adding paragraph (a)(9) to read as follows: § 25.202 Frequencies, frequency tolerance and emission limitations.

(a)* * *

(9)The following frequencies are available for use by Vehicle-Mounted Earth Stations (VMESs): 10.95-11.2 GHz (space-to-Earth) 11.45-11.7 GHz (space-to-Earth) 11.7-12.2 GHz (space-to-Earth) 14.0-14.5 GHz (Earth-to-space) VMESs shall be authorized as set forth in § 25.XXX of this chapter. 9. Amend § 25.203 by revising paragraphs (a), (b), the introductory text in paragraph

(c)and paragraphs

(d)and

(k)to read as follows: § 25.203 Choice of sites and frequencies.

(a)Sites and frequencies for earth stations, other than ESVs or VMESs, operating in frequency bands shared with equal rights between terrestrial and space services, shall be selected, to the extent practicable, in areas where the surrounding terrain and existing frequency usage are such as to minimize the possibility of harmful interference between the sharing services.

(b)An applicant for an earth station authorization, other than an ESV or a VMES, in a frequency band shared with equal rights with terrestrial microwave services shall compute the great circle coordination distance contour(s) for the proposed station in accordance with the procedures set forth in § 25.251. The applicant shall submit with the application a map or maps drawn to appropriate scale and in a form suitable for reproduction indicating the location of the proposed station and these contours. These maps, together with the pertinent data on which the computation of these contours is based, including all relevant transmitting and/or receiving parameters of the proposed station that are necessary to assess the likelihood of interference, an appropriately scaled plot of the elevation of the local horizon as a function of azimuth, and the electrical characteristics of the earth station antenna(s), shall be submitted by the applicant in a single exhibit to the application. The coordination distance contour plot(s), horizon elevation plot, and antenna horizon gain plot(s) required by this section may also be submitted in tabular numerical format at 5° azimuthal increments instead of graphical format. At a minimum, this exhibit shall include the information listed in paragraph (c)(2) of this section. An earth station applicant shall also include in the application relevant technical details (both theoretical calculations and/or actual measurements) of any special techniques, such as the use of artificial site shielding, or operating procedures or restrictions at the proposed earth station which are to be employed to reduce the likelihood of interference, or of any particular characteristics of the earth station site which could have an effect on the calculation of the coordination distance.

(c)Prior to the filing of its application, an applicant for operation of an earth station, other than an ESV or a VMES, shall coordinate the proposed frequency usage with existing terrestrial users and with applicants for terrestrial station authorizations with previously filed applications in accordance with the following procedure:

(d)An applicant for operation of an earth station, other than an ESV or a VMES, shall also ascertain whether the great circle coordination distance contours and rain scatter coordination distance contours, computed for those values of parameters indicated in § 25.251 (Appendix 7 of the ITU RR) for international coordination, cross the boundaries of another Administration. In this case, the applicant shall furnish the Commission copies of these contours on maps drawn to appropriate scale for use by the Commission in effecting coordination of the proposed earth station with the Administration(s) affected.

(k)An applicant for operation of an earth station, other than an ESV or a VMES, that will operate with a geostationary satellite or non-geostationary satellite in a shared frequency band in which the non-geostationary system is (or is proposed to be) licensed for feeder links, shall demonstrate in its applications that its proposed earth station will not cause unacceptable interference to any other satellite network that is authorized to operate in the same frequency band, or certify that the operations of its earth station shall conform to established coordination agreements between the operator(s) of the space station(s) with which the earth station is to communicate and the operator(s) of any other space station licensed to use the band. 10. Amend § 25.204 by revising the introductory text for paragraph

(a)and by adding paragraph

(j)to read as follows: § 25.204 Power limits.

(a)In bands shared coequally with terrestrial radio communication services, the equivalent isotropically radiated power transmitted in any direction towards the horizon by an earth station, other than an ESV or a VMES, operating in frequency bands between 1 and 15 GHz, shall not exceed the following limits except as provided for in paragraph

(c)of this section:

(j)Within 125 km of the Tracking and Data Relay System Satellite (TDRSS) sites identified in § 25.XXX(a)(11) of this chapter, VMES transmissions in the 14.0-14.2 GHz (Earth-to-space) band shall not exceed an EIRP spectral density towards the horizon of 12.5 dBW/MHz, and shall not exceed an EIRP towards the horizon of 16.3 dBW. 11. Amend § 25.205 by adding paragraph

(c)to read as follows: § 25.205 Minimum angle of antenna elevation.

(c)VMESs making a special showing requesting angles of elevation less than 5° measured from the horizontal plane to the direction of maximum radiation pursuant to paragraph

(a)of this section must still meet the EIRP and EIRP density towards the horizon limits contained in § 25.204(j) of this chapter. 12. Section 25.XXX is added to read as follows: § 25.XXX Blanket Licensing provisions for Vehicle-Mounted Earth Stations (VMESs) receiving in the 10.95-11.2 GHz (space-to-Earth), 11.45-11.7 GHz (space-to-Earth), 11.7-12.2 GHz (space-to-Earth) frequency bands and transmitting in the 14.0-14.5 GHz (Earth-to-space) frequency band, operating with Geostationary Satellites in the Fixed-Satellite Service.

(a)All applications for licenses for VMESs receiving in the 10.95-11.2 GHz (space-to-Earth), 11.45-11.7 GHz (space-to-Earth), and 11.7-12.2 GHz (space-to-Earth) frequency bands, and transmitting in the 14.0-14.5 GHz (Earth-to-space) frequency band, to geostationary satellites in the fixed-satellite service shall provide sufficient data to demonstrate that the VMES operations meet the following criteria, which are ongoing requirements that govern all VMES licensees and operations in these bands:

(1)The off-axis EIRP spectral density for co-polarized signals, emitted from the VMES in the plane of the geostationary satellite orbit as it appears at the particular earth station location ( *i.e.* , the plane determined by the focal point of the antenna and the line tangent to the arc of the geostationary satellite orbit at the position of the target satellite), shall not exceed the following values: 15−25log(θ) − 10*log(N) dBW/4kHz for 1.25° ≤ θ ≤ 7.0° −6 − 10*log(N) dBW/4kHz for 7.0° < θ ≤ 9.2° 18−25log(θ) − 10*log(N) dBW/4kHz for 9.2° < θ ≤ 48° −24 − 10*log(N) dBW/4kHz for 48° < θ ≤ 180° where (θ) is the angle in degrees from the axis of the main lobe. For a VMES network using frequency division multiple access

(FDMA)or time division multiple access

(TDMA)technique, N is equal to one. For a VMES network using code division multiple access

(CDMA)technique, N is the maximum number of co-frequency simultaneously transmitting earth stations in the same satellite receiving beam.

(2)In all other directions, the off-axis EIRP spectral density for co-polarized signals emitted from the VMES shall not exceed the following values: 18 − 25log(θ) − 10*log(N) dBW/4kHz for 1.25° ≤ θ ≤ 48.0° −24−10*log(N) dBW/4kHz for 48.0° < θ ≤ 180° where θ and N are defined as set forth in paragraph (a)(1) of this section.

(3)For θ >7.0°, the values given in paragraphs (a)(1) of this Section may be exceeded by no more than 10% of the sidelobes, provided no individual sidelobe exceeds the criteria given by more than 3 dB.

(4)In all directions, the off-axis EIRP spectral density for cross-polarized signals emitted from the VMES shall not exceed the following values: 5 − 25log(θ) − 10*log(N) dBW/4kHz for 1.8° ≤ θ ≤ 7.0° −16 − 10*log(N) dBW/4kHz for 7.0° < θ ≤ 9.2° where (θ) and N are defined as set forth in paragraph (a)(1) of this section.

(5)For non-circular VMES antennas, the major axis of the antenna will be aligned with the tangent to the geostationary satellite orbital arc at the target satellite point, to the extent required to meet specified off-axis EIRP criteria.

(6)A pointing error of less than 0.2°, between the orbital location of the target satellite and the axis of the main lobe of the VMES antenna.

(7)All emissions from the VMES shall automatically cease within 100 milliseconds if the angle between the orbital location of the target satellite and the axis of the main lobe of the VMES antenna exceeds 0.5°, and transmission will not resume until such angle is less than 0.2°.

(8)There shall be a point of contact in the United States, with phone number and address included with the application, available 24 hours a day, 7 days a week, with authority and ability to cease all emissions from the VMES.

(9)A VMES that exceeds the radiation guidelines of section 1.1310 of this chapter, Radiofrequency radiation exposure limits, must provide, with its environmental assessment, a plan for mitigation of radiation exposure to the extent required to meet those guidelines.

(10)A VMES receiving in the 10.95-11.2 GHz (space-to-Earth), 11.45-11.7 GHz (space-to-Earth), 11.7-12.2 GHz (space-to-Earth) frequency bands, and transmitting in the 14.0-14.5 GHz (Earth-to-space) frequency band shall operate with the following provisions:

(i)For each VMES transmitter a record of the vehicle location ( *i.e.* , latitude/longitude), transmit frequency, channel bandwidth, and satellite used shall be time annotated and maintained for a period of not less than one year. Records will be recorded at time intervals no greater than every 20 minutes while the VMES is transmitting. The VMES operator will make this data available upon request to a coordinator, fixed-satellite system operator, NTIA, or the Commission within 24 hours of the request.

(ii)VMES operators shall control all VMESs by a Hub earth station located in the United States.

(11)Operations of VMESs in the 14.0-14.2 GHz (Earth-to-space) frequency band within 125 km of the NASA TDRSS facilities on Guam (latitude 13°36′55″ N, longitude 144°51′22″ E) or White Sands, New Mexico (latitude 32°20′59″ N, longitude 106°36′31″ W and latitude 32°32′40″ N, longitude 106°36′48″ W) are subject to coordination with NASA. When NASA seeks to provide similar protection to future TDRSS sites that have been coordinated through the National Telecommunications and Information Administration

(NTIA)Interdepartment Radio Advisory Committee

(IRAC)Frequency Assignment Subcommittee process, NTIA will notify the Commission that the site is nearing operational status. Upon public notice from the Commission, all Ku-band VMES operators must cease operations in the 14.0-14.2 GHz band within 125 km of the new TDRSS site until they have coordinated with the new site. After coordination, VMES operations will then again be permitted to operate in the 14.0-14.2 GHz band within 125 km of the new TDRSS site, subject to any operational constraints developed in the coordination process.

(12)Operations of VMESs in the 14.47-14.5 GHz (Earth-to-space) frequency band within: 45 km of the radio observatory on St. Croix, Virgin Islands (latitude 17°46′ N, longitude 64°35′ W); 125 km of the radio observatory on Mauna Kea, Hawaii (latitude 19°48′ N, longitude 155°28′ W); 90 km of the Arecibo Observatory on Puerto Rico (latitude 18°20′46″ N, longitude 66°45′11″ W); and 160 km of the radio observatories listed in US203 as observing in the 14.47-14.5 GHz band are subject to coordination with the National Science Foundation (NSF).

(13)In the 10.95-11.2 GHz (space-to-Earth) and 11.45-11.7 GHz (space-to-Earth) frequency bands a VMES shall not claim protection from interference from any authorized terrestrial stations to which frequencies are either already assigned, or may be assigned in the future.

(14)VMES antennas licensed for reception of radio transmissions from space stations in the fixed-satellite service in the 10.95-11.2 GHz (space-to-Earth), 11.45-11.7 GHz (space-to-Earth) and 11.7-12.2 GHz (space-to-Earth) bands for which they have equal status with respect to other fixed-satellite service applications are protected from harmful interference caused by other space stations only to the degree to which an earth station employing an antenna conforming to the referenced patterns defined in § 25.209(a) and

(b)of the rules is protected from radio interference.

(b)Applications for VMES operation in the 14.0-14.5 GHz (Earth-to-space) to geostationary satellites in the fixed-satellite service must include, in addition to the particulars of operation identified on Form 312 and associated Schedule B, the following data for each earth station antenna type: (1)(i) A series of EIRP density charts or tables at the maximum EIRP density listed in Schedule B, calculated for a production earth station antenna, based on measurements taken on a calibrated antenna range at 14.25 GHz, with the off-axis EIRP envelope set forth in paragraphs (a)(1) through (a)(4) of this section, as follows:

(A)Showing off-axis co-polarized EIRP spectral density in the azimuth plane, at off-axis angles from minus 10° to plus 10° and from minus 180° to plus 180°.

(B)Showing off-axis co-polarized EIRP spectral density in the elevation plane, at off-axis angles from 0° to plus 30°.

(C)Showing off-axis cross-polarized EIRP spectral density in the azimuth plane, at off-axis angles from minus 10° to plus 10°.

(D)Showing off-axis cross-polarized EIRP spectral density in the elevation plane, at off-axis angles from minus 10° to plus 10°; or

(ii)A certification, in Schedule B, that the VMES antenna conforms to the gain pattern criteria of § 25.209(a) and (b), that, combined with the maximum input power density calculated from the EIRP density less the antenna gain, which is entered in Schedule B, demonstrates that the off-axis EIRP spectral density envelope set forth in paragraphs (a)(1) through (a)(4) of this section will be met.

(2)The Multiple Access technique being employed and the value of N.

(3)A certification from the antenna manufacturer countersigned by the applicant that the antenna complies with the requirements in paragraphs (a)(6) and (a)(7) of this section.

(4)The contact information pursuant to paragraph (a)(8) of this section.

(5)The mitigation plan pursuant to paragraph (a)(9) of this section.

(6)Indication of whether the VMES will operate in the regions indicated in paragraph (a)(11) or (a)(12) of this section.

(7)For the hub station, as required pursuant to paragraph (a)(10)(ii) of this section, the call sign for a previously authorized earth station, the call sign of a pending earth station application, or the technical information in Schedule B, pursuant to § 25.115, if the earth station is to be licensed concurrently with the VMES terminals. The call sign of hub station is to be listed in the remote control section of the Form 312 Schedule B. 13. Amend § 25.271 by revising paragraph (b), the introductory text for paragraph

(c)and paragraph

(f)to read as follows: § 25.271 Control of transmitting stations.

(b)The licensee of a transmitting earth station, other than an ESV or a VMES, licensed under this part shall ensure that a trained operator is present on the earth station site, or at a designated remote control point for the earth station, at all times that transmissions are being conducted. No operator's license is required for a person to operate or perform maintenance on facilities authorized under this part.

(c)Authority will be granted to operate a transmitting earth station, other than an ESV or a VMES, by remote control only on the conditions that:

(f)Rules for control of transmitting ESVs are provided in §§ 25.221 and 25.222 and rules for control of transmitting VMESs are provided in § 25.XXX. [FR Doc. E7-13718 Filed 7-17-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 07-42; FCC 07-18] Implementation of Section 612 of the Cable Communications Policy Act of 1984 as Amended by the Cable Television Consumer Protection and Competition Act of 1992 and Section 616 of the Cable Television Consumer Protection and Competition Act of 1992 AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Commission seeks comment on proposed rules and guidance to implement sections 612 and 616 of the Communications Act. In the context of its review of recent merger transactions and comments filed in its Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, the Commission determined to review the program carriage complaint processes and initiate a notice of proposed rulemaking regarding leased access rules. DATES: Comments for this proceeding are due on or before September 4, 2007; reply comments are due on or before September 21, 2007. ADDRESSES: You may submit comments, identified by MB Docket No. 07-42, 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 Katie Costello, *Katie.Costello@fcc.gov* of the Media Bureau, Policy Division,

(202)418-2233. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Notice of Proposed Rulemaking (NPRM)* , FCC 07-18, adopted on March 2, 2007, and released on June 15, 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 This document seeks comment on potential revised and new information collection requirements. The Commission will invite the general public and the Office of Management and Budget

(OMB)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 public and agency comments, which should address:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;

(b)the accuracy of the Commission's burden estimates;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. 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 Notice of Proposed Rulemaking I. Introduction 1. In this Notice of Proposed Rulemaking (“NPRM”), in light of issues raised in recent merger transactions and comments filed in the Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 71 FR 66946-02, we review the Commission's leased access, 47 CFR sections 76.970 through 76.977, and program carriage, 47 CFR sections 76.1300 through 76.1302, complaint processes. We initiate this review in order to provide guidance and further implement Section 612 of the Communications Act of 1934, as amended (the Communications Act), 47 U.S.C. 532, which requires a cable operator to set aside channel capacity for commercial use by video programmers unaffiliated with the operator, and Section 616 of the Communications Act, 47 U.S.C. 536, which prohibits a cable operator or other multichannel video programming distributor (“MVPD”) from requiring a financial interest in any program service as a condition for carriage of such service, from coercing a programmer to grant exclusive carriage rights, or from engaging in conduct that unreasonably restrains the ability of an unaffiliated programming vendor to compete fairly by discriminating against such vendor on the basis of affiliation or nonaffiliation. II. Commercial Leased Access Rules 2. The commercial leased access (leased access) requirements are set forth in Section 612 of the Communications Act. The leased access rules require a cable operator to set aside channel capacity for commercial use by video programmers unaffiliated with the operator. The statutory framework for commercial leased access was first established by the Cable Communications Policy Act of 1984. Congress established leased access set-aside requirements in proportion to a system's total activated channel capacity. 3. In the Cable Television Consumer Protection and Competition Act of 1992 (1992 Cable Act), Congress broadened Section 612's explicit statutory purpose to include the promotion of competition in the delivery of diverse sources of video programming, and required the Commission:

(a)To determine the maximum reasonable rates that a cable operator may establish for commercial use of designated channel capacity;

(b)to establish reasonable terms and conditions for such use; and

(c)to establish procedures for the expedited resolution of disputes concerning rates or carriage. Congress also required that the Commission's rules not adversely affect the operation, financial condition, or market development of the cable system. 4. The Commission adopted a maximum rate formula for full-time carriage on programming tiers based on the average implicit fee that other programmers are implicitly charged for carriage to permit the operator to recover its costs and earn a profit. The Commission also adopted a maximum rate for a la carte services based on the highest implicit fee that other a la carte services implicitly pay, and a prorated rate for part-time programming. 5. The Commission seeks comment on the current status of leased access programming and on the following issues: Do programmers actually use leased access channels? To what extent are they able to use the set-aside channels? How many leased access channels do cable operators provide? Which programmers are using those channels? Are programmers using the channels on a full-time or part-time basis? For what purposes are leased access channels used? Do cable operators turn down requests for leased access? If so, why? To what extent and for what purposes do the cable operators use the channels for themselves? Does the cable operators' option to use the channels contribute to programmers' lack of use of the set-aside channels? Are the terms in leased access agreements the same or similar to those that the cable operator has with its programmers? Do cable operators impose different requirements regarding, for example, insurance or termination provisions? If so, why? The Commission also seeks comment on the effectiveness of leased access enforcement, specifically on the costs associated with the complaint or other dispute resolution processes and whether there should be a defined time period for cable operators to respond to leased access requests or other aspects of the enforcement process. Regarding the Commission's rules that allow programmers to file complaints to challenge a cable operator's rates before the Commission, the Commission seeks comment on these issues: To what extent do programmers make use of the Commission's process to challenge rates that they believe violate the Commission's regulations? Is the process too burdensome? Is it effective? Should there be changes to the complaint process, such as an expedited complaint process before the Commission? The Commission's rules require a cable operator to respond to a programmer's request for rate information within 15 calendar days. The Commission seeks comment on whether cable operators are responsive to programmer's requests and whether they include all required information. 6. The Commission also seeks comment on its rate formula for leased access, such as specific methodologies that the Commission should consider and how such methodologies would better serve Congress' statutory objectives in a legally sustainable way. 7. The Commission's leased access rules involve calculations based on activated channels and location. Because of the development of digital signal processing and signal compression technologies, the number of video services carried on a cable system may no longer be a simple calculation and may change dynamically over time depending, for instance, on the degree of compression and whether the programming is carried in a standard or high definition digital format. The Commission seeks comment on whether and how the digital transition affects channel capacity and channel count for purposes of the calculation of carriage obligations and average rates; whether, consistent with changes in technology, cable operators have updated their terms of access to facilities, such as allowing programmers to submit video to the operator via the Internet. 8. The Commission requests comment on whether leased access programmers should have the ability to request carriage on a specific tier and whether there is evidence that cable operators seek to place leased access programming on digital tiers or other less popular tiers, when leased access programmers would prefer the basic tier, whether cable operators have acted reasonably in regard to placing leased access channels at specific channel locations what specific reform measures should the Commission consider? The Commission seeks comment on which service tier leased access programs appear, and on which channel within the tier do cable operators place the programming and whether leased access rules apply to video-on-demand

(VOD)or other technologies that do not fit a traditional “tier”. 9. The Commission seeks comment on other ways that advances in technology or marketplace developments should affect the leased access rules, in particular, whether and how the deployment of advanced digital services (e.g., interactive electronic programming guides, addressable digital set-top boxes, VOD), should inform its review. The Commission seeks comment on any other issues that would properly inform its leased access inquiry. III. Program Carriage Rules 10. Section 616 of the Communications Act directs the Commission to establish regulations governing program carriage agreements and related practices between cable operators or other MVPDs and video programming vendors. The Commission's program carriage rules prohibit a cable operator or other MVPD from requiring a financial interest in any program service as a condition for carriage of such service, from coercing a programmer to grant exclusive carriage rights, or from engaging in conduct that unreasonably restrains the ability of an unaffiliated programming vendor to compete fairly by discriminating against such vendor on the basis of affiliation or nonaffiliation. 11. In addition to establishing rules governing program carriage, the Commission has established procedures for the review of program carriage complaints and has established appropriate penalties and remedies. These procedures generally provide for resolution of a complaint on the basis of a complaint, answer, and reply. However, the Commission has recognized that the staff may be unable in some cases to resolve carriage agreement complaints on the sole basis of a written record. In such cases, if the staff determines that the complainant has established a prima facie case but that disposition of the complaint would require the resolution of factual disputes or other extensive discovery, the staff is to notify the parties that they have the option of choosing Alternative Dispute Resolution

(ADR)or an adjudicatory hearing before an Administrative Law Judge (ALJ). In terms of appropriate relief for violations of the program carriage rules, the Commission has stated that the appropriate relief will be determined on a case-by-case basis, and that appropriate remedies and sanctions may include forfeitures, mandatory carriage, or carriage on terms revised or specified by the Commission. 12. The Commission seeks comment on whether and how its processes for resolving carriage disputes should be modified. Currently, the Commission's rules provide that any complainant alleging a violation of Section 616(a)(3)'s prohibition on discrimination must demonstrate that the alleged discrimination is on the basis of affiliation or nonaffiliation of a vendor, and that the effect of the conduct that prompts the complaint is to unreasonably restrain the ability of the complainant to compete fairly. If, after reviewing the pleadings and supporting documentation filed by the parties, the Commission staff finds that the complainant has established a prima facie case under Section 76.1301(c), the staff may direct an ALJ to hold a hearing, issue a recommended decision on the facts underlying the discrimination claim and a recommended remedy, if necessary, and then return the matter to the Commission. The Commission seeks comment on these procedures, and, in particular, whether the elements of a prima facie case should be clarified. 13. The Commission has established timelines for the resolution of individual program carriage complaints. The Commission seeks comment on the effectiveness of this mechanism and whether similar changes or additional time limits would improve the existing process. For instance, whether specific time limits on the Commission, cable operators, or others would promote a speedy and just resolution of these disputes. 14. The Commission seeks comment on whether it should adopt rules to address the complaint process; whether the Commission should adopt additional rules to protect programmers from potential retaliation if they file a complaint or whether the existing penalties for frivolous program carriage complaints are appropriate or should be modified. 15. Independent programmers assert that many cable operators require them to negotiate for carriage on a system-by-system basis, even while they negotiate national carriage agreements with other programmers. The Commission seeks comment on whether it should adopt rules that expressly allow independent programmers to seek nationwide access directly from multiple system cable operators and, if so, how such a process would operate. 16. The Commission seeks comment on any other issues that would properly inform its program carriage inquiry. IV. Arbitration 17. The Commission seeks comment on the application of arbitration procedures to resolve leased access and program carriage disputes. Should the Commission establish arbitration procedures specifically for these types of complaints? If so, what procedures should be established? Should such procedures be elective or mandatory, and who should bear the costs of arbitration? What standard of review should the Commission employ in reviewing an arbitration decision if arbitration is required or otherwise used? V. Procedural Matters 18. *Ex Parte Rules* . This is a permit-but-disclose notice and comment rulemaking proceeding. *Ex Parte* presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's rules. *See generally* 47 CFR 1.1202, 1.1203, and 1.1206(a). 19. *Comment Information* . 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 45 days after this *Notice of Proposed Rulemaking* is published in the **Federal Register** , and reply comments on or before 65 days of publication. Comments may be filed using:

(1)The Commission's Electronic Comment Filing System (ECFS),

(2)the Federal Government's eRulemaking Portal, or

(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings* , 63 FR 24121 (1998). *Electronic Filers* : Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov* . Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. 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, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 20. *Initial Regulatory Flexibility Analysis* . As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis

(IRFA)of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this *NPRM* . The IRFA is set forth below. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the *NPRM* , and they should have a separate and distinct heading designating them as responses to the IRFA. VI. Ordering Clauses 21. *It is ordered* that, pursuant to the authority contained in Sections 4(i), 303, 612 and 616 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, 532 and 536, *notice is hereby given* of the proposals described in this Notice of Proposed Rulemaking. 22. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act. Initial Regulatory Flexibility Analysis 23. As required by the Regulatory Flexibility Act of 1980, as amended (the RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis

(IRFA)of the possible significant economic impact of the policies and rules proposed in this Notice of Proposed rulemaking (Notice) on a substantial number of small entities. 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 Notice indicated on the first page of this document. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Notice and IRFA (or summaries thereof) will be published in the **Federal Register** . Need for, and Objectives of, the Proposed Regulatory Approaches 24. The focus of the leased access and program carriage provisions contained in Sections 612 and 616 of the Communications Act of 1934, as amended, adopted as part of the Cable Television Consumer Protection and Competition Act of 1992, was to promote competition and diversity in the video programming marketplace and prevent cable systems, other MVPDs and affiliated programmers from preventing fair competition in video programming distribution through various practices. This proceeding requests comments on proposed changes to the Commission's rules to further enhance the Congressional objectives and respond to complaints that the rules are ineffective. Ultimately, these policies and rules are geared to the benefit of independent programmers, many of which may be small entities. Legal Basis 25. The authority for the action proposed in the rulemaking is contained in Section 4(i), 303, 612 and 616 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, 532 and 536. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 26. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one 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”). 27. *Cable and Other Program Distribution* . The SBA has developed a small business size standard for cable and other program distribution services, which includes all such companies generating $12.5 million or less in revenue annually. This category includes, among others, cable system operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems, subscription television services and open video systems. According to Census Bureau data for 1997, there were 1,311 firms in this category, total, that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, the Commission estimates that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein. We note, however, that the rules at issue in this Notice only apply at this time to cable operators, and not other MVPD providers. 28. *Cable System Operators (Rate Regulation Standard)* . The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. The most recent estimates indicate that there were 1,439 cable operators who qualified as small cable system operators at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are now fewer than 1,439 small entity cable system operators that may be affected by the rules and policies adopted herein. 29. *Cable System Operators (Telecom Act Standard)* . 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 there are 67,700,000 subscribers in the United States. Therefore, 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. Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,450. 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 is unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act of 1934. 30. *Direct Broadcast Satellite (“DBS”) Service* . DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. Because DBS provides subscription services, DBS falls within the SBA-recognized definition of Cable and Other Program Distribution. This definition provides that a small entity is one with $12.5 million or less in annual receipts. Currently, only four operators hold licenses to provide DBS service, which requires a great investment of capital for operation. All four currently offer subscription services. Two of these four DBS operators, DIRECTV and EchoStar Communications Corporation (“EchoStar”), report annual revenues that are in excess of the threshold for a small business. A third operator, Rainbow DBS, is a subsidiary of Cablevision's Rainbow Network, which also reports annual revenues in excess of $12.5 million, and thus does not qualify as a small business. The fourth DBS operator, Dominion Video Satellite, Inc. (“Dominion”), offers religious (Christian) programming and does not report its annual receipts. The Commission does not know of any source which provides this information and, thus, we have no way of confirming whether Dominion qualifies as a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS licensee. Nevertheless, given the absence of specific data on this point, we acknowledge the possibility that there are entrants in this field that may not yet have generated $12.5 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated. 31. *Private Cable Operators

(PCOs)also known as Satellite Master Antenna Television (SMATV) Systems* . PCOs, also known as SMATV systems or private communication operators, are video distribution facilities that use closed transmission paths without using any public right-of-way. PCOs acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. The SBA definition of small entities for Cable and Other Program Distribution Services includes PCOs and, thus, small entities are defined as all such companies generating $12.5 million or less in annual receipts. Currently, there are approximately 135 members in the Independent Multi-Family Communications Council (IMCC), the trade association that represents PCOs. Individual PCOs often serve approximately 3,000-4,000 subscribers, but the larger operations serve as many as 15,000-55,000 subscribers. In total, PCOs currently serve approximately 1.1 million subscribers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten PCOs, we believe that a substantial number of PCOs qualify as small entities. 32. *Home Satellite Dish (“HSD”) Service* . Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Cable and Other Program Distribution, which includes all such companies generating $12.5 million or less in revenue annually. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled

(free)programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. There are approximately 30 satellites operating in the C-band, which carry over 500 channels of programming combined; approximately 350 channels are available free of charge and 150 are scrambled and require a subscription. HSD is difficult to quantify in terms of annual revenue. HSD owners have access to program channels placed on C-band satellites by programmers for receipt and distribution by MVPDs. Commission data shows that, between June 2003 and June 2004, HSD subscribership fell from 502,191 subscribers to 335,766 subscribers, a decline of more than 33 percent. The Commission has no information regarding the annual revenue of the four C-Band distributors. 33. *Wireless Cable Systems* . Wireless cable systems use the Multipoint Distribution Service (“MDS”) and Instructional Television Fixed Service (“ITFS”) frequencies in the 2 GHz band to transmit video programming and provide broadband services to subscribers. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. As previously noted, the SBA definition of small entities for Cable and Other Program Distribution, which includes such companies generating $12.5 million in annual receipts, appears applicable to MDS, ITFS and LMDS. In addition, the Commission has defined small MDS and LMDS entities in the context of Commission license auctions. 34. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not participate in the MDS auction must rely on the SBA definition of small entities for Cable and Other Program Distribution. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $12.5 million annually. Therefore, we estimate that there are approximately 850 small MDS providers as defined by the SBA and the Commission's auction rules. 35. 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. 36. In the 1998 and 1999 LMDS auctions, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. Moreover, the Commission added an additional classification for a “very small business,” which was defined as an entity that had annual average gross revenues of less than $15 million in the previous three calendar years. These definitions of “small business” and “very small business” in the context of the LMDS auctions have been approved by the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based on this information, we believe that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission's auction rules. 37. *Open Video Systems (“OVS”).* The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA-recognized definition of Cable and Other Program Distribution Services, which provides that a small entity is one with $12.5 million or less in annual receipts. The Commission has certified 25 OVS operators with some now providing service. Broadband service providers

(BSPs)are currently the only significant holders of OVS certifications or local OVS franchises, even though OVS is one of four statutorily recognized options for local exchange carriers

(LECs)to offer video programming services. As of June 2003, BSPs served approximately 1.4 million subscribers, representing 1.49 percent of all MVPD households. Among BSPs, however, those operating under the OVS framework are in the minority, with approximately eight percent operating with an OVS certification. Serving approximately 460,000 of these subscribers, Affiliates of Residential Communications Network, Inc. (“RCN”) is currently the largest BSP and 11th largest MVPD. RCN received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. We thus believe that at least some of the OVS operators may qualify as small entities. 38. *Program Producers and Distributors.* The Commission has not developed a definition of small entities applicable to producers or distributors of cable television programs. Therefore, we will use the SBA classifications of Motion Picture and Video Tape Production (NAICS Code 51211), Motion Picture and Video Tape Distribution (NAICS Code 42199), and Theatrical Producers (Except Motion Pictures) and Miscellaneous Theatrical Services (NAICS Codes 56131, 71111, 71141, 561599, 71151, 71112, 71132, 51229, 53249). These SBA definitions provide that a small entity in the cable television programming industry is an entity with $21.5 million or less in annual receipts for NAICS Codes 56131, 51211, 42199, and 51212, and $5 million or less in annual receipts for NAICS Codes 56131, 71111, 71141, 561599, 71151, 71112, 71131, 71132, 51229, and 53249. Census Bureau data indicate the following:

(a)There were 7,265 firms in the United States classified as Motion Picture and Video Production (NAICS Code 51211), and that 6,987 of these firms had $16.999 million or less in annual receipts and 7,002 of these firms had $24.999 million or less in annual receipts;

(b)there were 1,139 firms classified as Motion Picture and Video Tape Distribution (NAICS Codes 42199 and 51212), and 1007 of these firms had $16.999 million or less in annual receipts and 1013 of these firms had $24.999 million or less in annual receipts; and

(c)there were 5,671 firms in the United States classified as Theatrical Producers and Services (NAICS Codes 56131, 71111, 71141, 561599, 71151, 51229, and 53249), and 5627 of these firms had $4.999 million or less in annual receipts. 39. Each of these NAICS categories is very broad and includes firms that may be engaged in various industries, including cable programming. Specific figures are not available regarding how many of these firms exclusively produce and/or distribute programming for cable television or how many are independently owned and operated. Thus, we estimate that our rules may affect approximately 6,987 small entities primarily engaged in the production and distribution of taped cable television programs and 5,627 small producers of live programs that may be affected by the rules adopted in this proceeding. 40. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( *e.g.* , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. 41. *Incumbent Local Exchange Carriers (“LECs”).* Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002. 42. *Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”* Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002. 43. *Electric Power Generation, Transmission and Distribution.* The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities:

(1)Operate generation facilities that produce electric energy;

(2)operate transmission systems that convey the electricity from the generation facility to the distribution system; and

(3)operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” The SBA has developed a small business size standard for firms in this category: “A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.” According to Census Bureau data for 2002, there were 1,644 firms in this category that operated for the entire year. Census data do not track electric output and we have not determined how many of these firms fit the SBA size standard for small, with no more than 4 million megawatt hours of electric output. Consequently, we estimate that 1,644 or fewer firms may be considered small under the SBA small business size standard. Description of Proposed Reporting, Recordkeeping and Other Compliance Requirements 44. The NPRM seeks comment on a range of potential changes to existing reporting, recordkeeping or other compliance requirements. Regarding the Commission's rules implementing Section 612 of the Communications Act, the NPRM seeks comment on all aspects of the commercial leased access rules, as well as dispute resolution procedures. Similarly, regarding the Commission's rules implementing Section 616 of the Communications Act, the NPRM seeks comment on whether and how the Commission's dispute resolution and other rules should be modified. Steps Taken to Minimize Significant Impact on Small Entities and Significant Alternatives Considered 45. The RFA requires an agency to describe any significant alternatives that it has considered in proposing regulatory approaches, which may include the following four alternatives:

(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;

(3)the use of performance, rather than design, standards; and

(4)an exemption from coverage of the rule, or any part thereof, for small entities. The NPRM seeks comment on the Commission's rules implementing Sections 612 and 616 of the Communications Act, as amended. While most of the leased access and program carriage complaints have been filed against large entities or affiliates of large entities, some small entities may be affected by any rule changes. Therefore, this NPRM invites comment on issues that may impact some small entities. In addition, this NPRM seeks comment on whether the Commission's rules and their enforcement are successful in promoting competition and diversity in the video programming marketplace and preventing cable systems and other MVPDs from preventing fair competition in video programming distribution through various practices. Those policies and rules are designed to promote and protect the interests of independent programmers in the video distribution marketplace and many of the programmers will qualify as small entities. In the event that the Commission modifies its rules in this proceeding, it will explain the steps that it has taken to minimize significant impacts on small entities and the significant alternatives that it has considered. Federal Rules Which Duplicate, Overlap, or Conflict With the Commission's Proposals 46. None. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-13827 Filed 7-17-07; 8:45 am] BILLING CODE 6712-01-P 72 137 Wednesday, July 18, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request July 12, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding

(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility and clarity of the information to be collected;

(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax

(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling

(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Risk Management Agency *Title:* Standard Reinsurance Agreement Plan of Operations. *OMB Control Number:* 0563-0069. *Summary of Collection:* The Federal Crop Insurance Act, Title 7 U.S.C. Chapter 36 Section 1508(k) authorizes the Federal Crop Insurance to provide reinsurance to approved insurance providers that insure producers of any agricultural commodity under one or more acceptable plans. The Standard Reinsurance Agreement is a financial agreement between FCIC and the company to provide subsidy and reinsurance on eligible crop insurance. The Plan of Operation provides the information the insurer is required to file for the initial and each subsequent reinsurance year. *Need and Use of the Information:* FCIC uses the information as a basis for the approval of the insurer's financial and operational capability of delivering the crop insurance program and for evaluating the insurer's performance regarding implementation of procedures for training and quality control. If the information were not collected, FCIC would not be able to reinsure the crop business. *Description of Respondents:* Business or other for-profit; Farms. *Number of Respondents:* 40,276. *Frequency of Responses:* Reporting: Annually. *Total Burden Hours:* 144,264. Charlene Parker, Departmental Information Clearance Officer. [FR Doc. E7-13837 Filed 7-17-07; 8:45 am] BILLING CODE 3410-08-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0018] Oregon State University; Availability of an Environmental Assessment for Controlled Release of Genetically Engineered Populus Species and Hybrids AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that an environmental assessment has been prepared for a proposed controlled field release of genetically engineered (transgenic) clones of *Populus* species and hybrids. The purpose of this controlled field release is to examine the effects of the genetic constructs on the intended traits—reproductive sterility, reduced stature, reduced light response, and modified lignin content. We are making the environmental assessment available to the public for review and comment. DATES: We will consider all comments received on or before August 17, 2007. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to: *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0018 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instruction for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0018. *Reading Room:* You may read the environmental assessment

(EA)and any comments we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. The EA is available on the Internet at: *http://www.aphis.usda.gov/brs/aphisdocs/06_25001r_ea.pdf* . *Other Information:* Additional information about APHIS and its programs is available on the Internet at: *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1236;

(301)734-7324. To obtain copies of the environmental assessment, contact Ms. Cynthia Eck, Document Control Officer, at

(301)734-0667; e-mail: *cynthia.a.eck@aphis.usda.gov.* SUPPLEMENTARY INFORMATION: The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered organisms and products are considered “regulated articles.” A permit must be obtained or a notification acknowledged before a regulated article may be introduced. The regulations set forth the permit application requirements and the notification procedures for the importation, interstate movement, or release in the environment of a regulated article. On September 7, 2006, the Animal and Plant Health Inspection Service (APHIS) received a permit application (APHIS No. 06-250-01r) from Oregon State University, in Corvallis, OR, for a controlled field release of genetically engineered *Populus alba* and *Populus* hybrids. A previous environmental assessment

(EA)was prepared for a subset of trees in this release under Permit 95-031-01R. Under that permit, trees engineered with sterility constructs were allowed to flower. Since the researcher intends to add more trees to the permit and allow these additional trees to flower, a new EA has been prepared that updates the previous EA. Permit application 06-250-01r describes 95 genetic constructs that can be categorized into reproductive sterility genes, genes affecting stature or light response, genes aimed to modify tree chemistry, and activation tagging mutants aimed at the development of “experimental domesticates.” These DNA sequences were introduced into *Populus* plants using disarmed *Agrobacterium tumefaciens* and also contain regulatory sequences from the plant pests cauliflower mosaic virus, tobacco mosaic virus, *Aspergillus nidulans,* and *Agrobacterium tumefaciens.* The subject *Populus* plants are considered regulated articles under the regulations in 7 CFR part 340 because they were created using donor sequences from plant pests. To provide the public with documentation of APHIS' review and analysis of any potential environmental impacts and plant pest risks associated with the proposed release of these *Populus* plants, an EA has been prepared. The EA was prepared in accordance with

(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),

(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),

(3)USDA regulations implementing NEPA (7 CFR part 1b), and

(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). Copies of the EA may be viewed on the *http://Regulations.gov* Web site or in our reading room (see ADDRESSES above) and are available from the individual listed under FOR FURTHER INFORMATION CONTACT . Authority: 7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3. Done in Washington, DC, this 12th day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-13922 Filed 7-17-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0102] Notice of Availability of a Pest Risk Analysis for the Importation of Eggplant and Okra From Ghana Into all Areas of the United States and the Importation of Peppers From Ghana Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that we have prepared a pest risk analysis that evaluates the risks associated with the importation of eggplant and okra from Ghana into all areas of the United States and the importation of peppers from Ghana into the continental United States. Based on that analysis, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of eggplant, okra, and peppers from Ghana. We are making the pest risk analysis available for review and comment. DATES: We will consider all comments we receive on or before September 17, 2007. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal* : Go to *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select Docket No. APHIS-2007-0102 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0102, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0102. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(301)734-8758. SUPPLEMENTARY INFORMATION: Under the regulations in“Subpart—Fruits and Vegetables” (7 CFR 319.56 through 319.56-46, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States. In a final rule published in the Rules and Regulations section of today's issue of the **Federal Register** (see “Revision of Fruits and Vegetables Import Regulations,” Docket No. APHIS-2005-0106), we establish a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in § 319.56-4(b) of the regulations. These measures are: • The fruits or vegetables are subject to inspection upon arrival in the United States and comply with all applicable provisions of 319.56-3; • The fruits or vegetables are imported from a pest-free area in the country of origin that meets the requirements of § 319.56-5 for freedom from that pest and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest-free area in the country of origin; • The fruits or vegetables are treated in accordance with 7 CFR part 305; • The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and have been found free of one or more specific quarantine pests identified by the risk analysis as likely to follow the import pathway; and/or • The fruits or vegetables are a commercial consignment. APHIS received a request from the Government of Ghana to allow the importation of eggplant and okra from Ghana into all areas of the United States and the importation of peppers from Ghana into the continental United States. We have completed pest risk assessments to identify pests of quarantine significance that could follow the pathway of importation into the United States and, based on that pest risk assessment, have prepared a risk management analysis to identify phytosanitary measures that could be applied to the commodities to mitigate the pest risk. We have concluded that eggplant and okra can be safely imported into all areas of the United States and peppers can be safely imported into the continental United States from Ghana using one or more of the five designated phytosanitary measures listed in § 319.56-4(b). Therefore, in accordance with § 319.56-4(c), we are announcing the availability of our pest risk analysis for public review and comment. The pest risk analysis may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the pest risk analysis by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the subject of the pest risk analysis when requesting copies. After reviewing the comments we receive, we will announce our decision regarding the import status of eggplant, okra, and peppers from Ghana in a subsequent notice. If the overall conclusions of the analysis and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will begin issuing permits for importation of eggplant and okra into all areas of the United States and peppers from Ghana into the continental United States subject to the requirements specified in the risk management analysis. Done in Washington, DC, this 12th day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-13911 Filed 7-17-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0100] Notice of Availability of a Pest Risk Analysis for the Importation of Husked, Silk-Free Baby Corn From Kenya Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that we have prepared a pest risk analysis that evaluates the risks associated with the importation into the continental United States of husked, silk-free baby corn from Kenya. Based on that analysis, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of husked, silk-free baby corn from Kenya. We are making the pest risk analysis available for review and comment. DATES: We will consider all comments we receive on or before September 17, 2007. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal* : Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select Docket No. APHIS-2007-0100 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery* : Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0100, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0100. *Reading Room* : You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information* : Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(301)734-8758. SUPPLEMENTARY INFORMATION: Under the regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56 through 319.56-46, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States. In a final rule published in the Rules and Regulations section of today's issue of the **Federal Register** (see “Revision of Fruits and Vegetables Import Regulations,” Docket No. APHIS-2005- 0106), we establish a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in § 319.56-4(b) of the regulations. These measures are: • The fruits or vegetables are subject to inspection upon arrival in the United States and comply with all applicable provisions of § 319.56-3; • The fruits or vegetables are imported from a pest-free area in the country of origin that meets the requirements of § 319.56-5 for freedom from that pest and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest-free area in the country of origin; • The fruits or vegetables are treated in accordance with 7 CFR part 305; • The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and have been found free of one or more specific quarantine pests identified by the risk analysis as likely to follow the import pathway; and/or • The fruits or vegetables are a commercial consignment. APHIS received a request from the Government of Kenya to allow the importation of husked, silk-free baby corn from Kenya into the continental United States. We have completed a pest risk assessment to identify pests of quarantine significance that could follow the pathway of importation into the United States and, based on that pest risk assessment, have prepared a risk management analysis to identify phytosanitary measures that could be applied to the commodity to mitigate the pest risk. We have concluded that husked, silk-free baby corn can be safely imported into the continental United States from Kenya using one or more of the five designated phytosanitary measures listed in § 319.56-4(b). Therefore, in accordance with § 319.56-4(c), we are announcing the availability of our pest risk analysis for public review and comment. The pest risk analysis may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the pest risk analysis by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the subject of the pest risk analysis when requesting copies. After reviewing the comments we receive, we will announce our decision regarding the import status of husked, silk-free baby corn from Kenya in a subsequent notice. If the overall conclusions of the analysis and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will begin issuing permits for importation of husked, silk-free baby corn from Kenya into the continental United States subject to the requirements specified in the risk management analysis. Done in Washington, DC, this 12th day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-13913 Filed 7-17-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0099] Notice of Availability of a Pest Risk Analysis for the Importation of Peeled Baby Carrots From Kenya Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that we have prepared a pest risk analysis that evaluates the risks associated with the importation into the continental United States of peeled baby carrots from Kenya. Based on that analysis, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of peeled baby carrots from Kenya. We are making the pest risk analysis available for review and comment. DATES: We will consider all comments we receive on or before September 17, 2007. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select Docket No. APHIS-2007-0099 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0099, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0099. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(301)734-8758. SUPPLEMENTARY INFORMATION: Under the regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56 through 319.56-46, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States. In a final rule published in the Rules and Regulations section of today's issue of the **Federal Register** (see “Revision of Fruits and Vegetables Import Regulations,” Docket No. APHIS-2005-0106), we establish a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in § 319.56-4(b) of the regulations. These measures are: • The fruits or vegetables are subject to inspection upon arrival in the United States and comply with all applicable provisions of § 319.56-3; • The fruits or vegetables are imported from a pest-free area in the country of origin that meets the requirements of § 319.56-5 for freedom from that pest and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest-free area in the country of origin; • The fruits or vegetables are treated in accordance with 7 CFR part 305; • The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and have been found free of one or more specific quarantine pests identified by the risk analysis as likely to follow the import pathway; and/or • The fruits or vegetables are a commercial consignment. APHIS received a request from the Government of Kenya to allow the importation of peeled baby carrots from Kenya into the continental United States. We have completed a pest risk assessment to identify pests of quarantine significance that could follow the pathway of importation into the United States and, based on that pest risk assessment, have prepared a risk management analysis to identify phytosanitary measures that could be applied to the commodity to mitigate the pest risk. We have concluded that peeled baby carrots can be safely imported into the continental United States from Kenya using one or more of the five designated phytosanitary measures listed in § 319.56-4(b). Therefore, in accordance with § 319.56-4(c), we are announcing the availability of our pest risk analysis for public review and comment. The pest risk analysis may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the pest risk analysis by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the subject of the pest risk analysis when requesting copies. After reviewing the comments we receive, we will announce our decision regarding the import status of peeled baby carrots from Kenya in a subsequent notice. If the overall conclusions of the analysis and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will begin issuing permits for importation of peeled baby carrots from Kenya into the continental United States subject to the requirements specified in the risk management analysis. Done in Washington, DC, this 12th day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-13914 Filed 7-17-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0101] Notice of Availability of a Pest Risk Analysis for the Importation of Ribes Species Fruits From South Africa into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that we have prepared a pest risk analysis that evaluates the risks associated with the importation into the continental United States of *Ribes* species fruits (i.e., currants and gooseberries) from South Africa. Based on that analysis, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of *Ribes* species fruits from South Africa. We are making the pest risk analysis available for review and comment. DATES: We will consider all comments we receive on or before September 17, 2007. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select Docket No. APHIS-2007-0101 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0101, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0101. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(301)734-8758. SUPPLEMENTARY INFORMATION: Under the regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56 through 319.56-46, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States. In a final rule published in the Rules and Regulations section of today's issue of the **Federal Register** (see “Revision of Fruits and Vegetables Import Regulations,” Docket No. APHIS-2005-0106), we establish a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in § 319.56-4(b) of the regulations. These measures are: • The fruits or vegetables are subject to inspection upon arrival in the United States and comply with all applicable provisions of § 319.56-3; • The fruits or vegetables are imported from a pest-free area in the country of origin that meets the requirements of § 319.56-5 for freedom from that pest and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest-free area in the country of origin; • The fruits or vegetables are treated in accordance with 7 CFR part 305; • The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and have been found free of one or more specific quarantine pests identified by the risk analysis as likely to follow the import pathway; and/or • The fruits or vegetables are a commercial consignment. APHIS received a request from the Government of South Africa to allow the importation of *Ribes* species fruits (i.e., currants and gooseberries) from South Africa into the continental United States. We have completed a pest risk assessment to identify pests of quarantine significance that could follow the pathway of importation into the United States and, based on that pest risk assessment, have prepared a risk management analysis to identify phytosanitary measures that could be applied to the commodity to mitigate the pest risk. We have concluded that *Ribes* species fruits can be safely imported into the continental United States from South Africa using one or more of the five designated phytosanitary measures listed in § 319.56-4(b). Therefore, in accordance with § 319.56-4(c), we are announcing the availability of our pest risk analysis for public review and comment. The pest risk analysis may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the pest risk analysis by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the subject of the pest risk analysis when requesting copies. After reviewing the comments we receive, we will announce our decision regarding the import status of *Ribes* species fruits from South Africa in a subsequent notice. If the overall conclusions of the analysis and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will begin issuing permits for importation of *Ribes* species fruits from South Africa into the continental United States subject to the requirements specified in the risk management analysis. Done in Washington, DC, this 12th day of July 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-13912 Filed 7-17-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Forest Service Plumas National Forest; Butte and Plumas Counties, CA; Watdog Project AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare a Supplement to the Environmental Impact Statement. SUMMARY: The Forest Service will prepare a supplement to the final Environmental Impact Statement to document and clarify the analysis of environmental effects. DATES: Scoping is not required for supplements to environmental impact statements (40 CFR 1502.9(c)4). The draft supplemental environmental impact statement is expected to be issued in August 2007 and the final supplemental environmental impact statement is expected in November 2007. ADDRESSES: Plumas National Forest, 159 Lawrence Street, PO Box 11500, Quincy, CA 95971; Feather River Ranger District, 875 Mitchell Avenue, Oroville, CA 95965. FOR FURTHER INFORMATION CONTACT: John Zarlengo, Project Leader, Feather River Ranger District, 875 Mitchell Avenue, Oroville, CA 95965;

(530)534-6500. SUPPLEMENTARY INFORMATION: The notice of intent to prepare a draft environmental impact statement for this project appeared in the **Federal Register** on February 10, 2005. The Notice of Availability for the Draft Environmental Impact Statement appeared on June 24, 2005. A Final Environmental Impact Statement and Record of Decision were issued on September 15, 2005. The legal notice of the Record of Decision appeared in the Feather River Bulletin on September 28, 2005. The decision was appealed and later withdrawn by the Responsible Official on December 20, 2005. The notice of intent to prepare a draft supplement to the environmental impact statement for this project appeared in the **Federal Register** on March 29, 2006. The Notice of Availability for the Draft Supplement to the Environmental Impact Statement appeared on September 1, 2006. A supplement to the Final Environmental Impact Statement and record of decision was prepared on March 30, 2007. The decision was appealed and then reversed after review, on June 26, 2007. Purpose and Need for Action The purpose and need remain the same as was described in the FEIS. The purpose of and need for the project has several elements:

(1)Implement fuels reduction by proposing defensible fuel profile zone

(DFPZ)treatments to provide for fire resiliency and improved fire fighter safety;

(2)Implement group selection provisions of the HFQLG Act providing for shifting existing conditions towards desired conditions of an uneven-aged (all-aged), multistory, fire-resilient forest and contributing toward community stability;

(3)Provide for reduced impacts of the transportation system on forest resources by implementing road relocation or improvements as part of project access. The purpose and need includes the following restoration opportunities:

(1)Promote a more natural forest ecosystem with a higher abundance of hardwoods and create openings around existing California black oaks to stimulate natural regeneration; and

(2)Provide for healthy aquatic and riparian ecosystems by implementing restoration projects to improve fish passage in streams and restore selected streams and meadows. Proposed Action The proposed action and alternatives will remain the same as described in the FEIS. These alternatives include varied levels of fuel treatments, group selection timber harvest, and transportation system improvement. Responsible Official Chris Knopp, Acting Forest Supervisor, Plumas National Forest, P.O. Box 11500, Quincy, CA 95971. Nature of Decision To Be Made Based on the supplement, the responsible official will decide whether to implement the project based on an alternative in the FEIS or not implement the project at this time. Early Notice of Importance of Public Participation in Subsequent Environmental Review A draft supplemental environmental impact statement will be prepared for comment. The comment period on the draft supplemental environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft supplemental environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp* . v. *NRDC* , 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft supplemental environmental impact statement stage but that are not raised until after completion of the final supplemental environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel* , 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc* . v. *Harris* , 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final supplemental environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft supplemental environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages of the draft supplement. Comments may also address the adequacy of the draft supplemental environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: July 3, 2007. Maria T. Garcia, Deputy Forest Supervisor. [FR Doc. 07-3479 Filed 7-17-07; 8:45 am]

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