Rules and Regulations. Final rule

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BILLING CODE 4910-13-C DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30562 Amdt. No. 3229] Standard Instrument Approach Procedures, Weather Takeoff Minimums; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements.

These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective August 8, 2007. The compliance date for each SIAP and/or Weather Takeoff Minimums is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 8, 2007.

ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* *For Purchase* —Individual SIAP and Weather Takeoff Minimums copies may be obtained from: 1.

FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription* —Copies of all SIAPs and Weather Takeoff Minimums mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK. 73169 (Mail Address:

P.O. Box 25082 Oklahoma City, OK. 73125) telephone:

(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center

(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided. Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866;

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

(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on July 27, 2007. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and Weather Takeoff Minimums effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: Effective 30 AUG 2007 Grand Canyon, AZ, Grand Canyon National Park, Takeoff Minimums and Obstacle DP, Orig Phoenix, AZ, Phoenix Deer Valley, RNAV (GPS)-B, Orig-A Phoenix, AZ, Phoenix Deer Valley, RNAV

(GPS)RWY 25L, Orig-B Sylvania, GA, Plantation Airpark, NDB RWY 23, Amdt 2 Westfield/Springfield, MA, Barnes Muni, ILS OR LOC RWY 20, Amdt 6 Westfield/Springfield, MA, Barnes Muni, RNAV

(GPS)RWY 20, Orig Westfield/Springfield, MA, Barnes Muni, GPS RWY 20, Orig-A, CANCELLED Lee's Summit, MO, Lee's Summit Municipal, Takeoff Minimums and Obstacle DP, Orig Aberdeen/Amory, MS, Monroe County, RNAV

(GPS)RWY 18, Orig Aberdeen/Amory, MS, Monroe County, RNAV

(GPS)RWY 36, Orig Aberdeen/Amory, MS, Monroe County, Takeoff Minimums and Obstacle DP, Orig Erwin, NC, Harnett County, Takeoff Minimums and Obstacle DP, Orig Laconia, NH, Laconia, Muni, NDB RWY 8, Amdt 9 Laconia, NH, Laconia, Muni, ILS OR LOC RWY 8, Amdt 1 Laconia, NH, Laconia, Muni, RNAV

(GPS)RWY 8, Orig Laconia, NH, Laconia, Muni, RNAV

(GPS)RWY 26, Orig Laconia, NH, Laconia, Muni, GPS RWY 26, Orig-A, CANCELLED New York, NY, LaGuardia, ILS OR LOC RWY 4, Amdt 35 New York, NY, LaGuardia, RNAV

(RNP)Z RWY 4, Orig New York, NY, LaGuardia, RNAV

(RNP)Z RWY 22, Orig New York, NY, LaGuardia, RNAV

(GPS)Y RWY 4, Amdt 2 New York, NY, LaGuardia, RNAV

(GPS)Y RWY 22, Amdt 2 Sioux Falls, SD, Joss Foss Field, Takeoff Minimums and Obstacle DP, Amdt 7 Houston, TX, Houston Executive, RNAV

(GPS)RWY 18, Orig Houston, TX, Houston Executive, RNAV

(GPS)RWY 36, Orig Houston, TX, Houston Executive, Takeoff Minimums and Obstacle DP, Orig Menomonie, WI, Menomonie Municipal-Score Field, RNAV

(GPS)RWY 27, Orig Menomonie, WI, Menomonie Municipal-Score Field, RNAV

(GPS)RWY 9, Orig Norfolk, VA, Hampton Roads Executive, NDB RWY 2, Amdt 7 Norfolk, VA, Hampton Roads Executive, RNAV

(GPS)RWY 10, Orig Norfolk, VA, Hampton Roads Executive, RNAV

(GPS)RWY 28, Orig Norfolk, VA, Hampton Roads Executive, GPS RWY 10, Orig-A, CANCELLED Norfolk, VA, Hampton Roads Executive, GPS RWY 28, Orig-A, CANCELLED Norfolk, VA, Hampton Roads Executive, Takeoff Minimums and Obstacle DP, Amdt 1 Effective 27 SEP 2007 Chicago, IL, Chicago-O'Hare Intl, RNAV

(GPS)RWY 32L, Amdt 2A The FAA published several Amendments in Docket No. 30558, Amdt No. 3225 to Part 97 Of the Federal Aviation Regulations (Vol. 72, FR No. 135, Page 38755; dated Monday, July 16, 2007) under section 97.33, effective 30 August 2007, which is hereby RESCINDED as follows: Miami, FL, Miami Intl, RNAV

(RNP)Y RWY 9, Orig Miami, FL, Miami Intl, RNAV

(GPS)Z RWY 9, Amdt 1 Miami, FL, Miami Intl, ILS OR LOC RWY 9, Amdt 10 [FR Doc. E7-15134 Filed 8-7-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 866 [Docket No. 2007N-0294] Medical Devices: Immunology and Microbiology Devices: Classification of In Vitro Human Immunodeficiency Virus Drug Resistance Genotype Assay AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration

(FDA)is classifying an in vitro human immunodeficiency virus

(HIV)drug resistance genotype assay into class II (special controls). The special control that will apply to this device is the guidance document entitled “Class II Special Controls Guidance Document: In Vitro HIV Drug Resistance Genotype Assay.” FDA is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of this device. Elsewhere in this issue of the **Federal Register** , FDA is announcing the availability of the guidance document that will serve as the special control for this device. DATES: This rule becomes effective September 7, 2007. The classification of this device into class II became effective on September 26, 2001. FOR FURTHER INFORMATION CONTACT: Nathaniel L. Geary, Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852, 301-827-6210. SUPPLEMENTARY INFORMATION: I. Background In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976, the date of enactment of the Medical Device Amendments of 1976, generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the act, to a predicate device that does not require premarket approval. FDA determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of FDA's regulations. Section 513(f)(2) of the act provides that any person who submits a premarket notification under section 510(k) of the act for a device that has not previously been classified may, within 30 days after receiving an order classifying the device in class III under section 513(f)(1) of the act, request FDA to classify the device under the criteria set forth in section 513(a)(1) of the act. FDA shall, within 60 days of receiving such a request, classify the device by written order. This classification shall be the initial classification of the device. In accordance with section 513(f)(1) of the act, FDA issued an order on June 27, 2001, classifying into class III the Visible Genetics, Inc., TRUEGENE HIV Genotyping Kit and OpenGene DNA Sequencing System, because this device was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or to a device which was subsequently reclassified into class I or class II. On July 11, 2001, Visible Genetics, Inc. submitted to FDA a petition requesting classification of the TRUEGENE HIV Genotyping Kit and OpenGene DNA Sequencing System under section 513(f)(2) of the act. The manufacturer recommended that the device be classified into class II (Ref. 1). In accordance with section 513(f)(2) of the act, FDA reviewed the petition in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the act. Devices are to be classified into class II if general controls, by themselves, are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the petition, FDA determined that the Visible Genetics, Inc., TRUEGENE HIV Genotyping Kit and OpenGene DNA Sequencing System can be classified in class II with the establishment of special controls. FDA believes that special controls, in addition to general controls, are adequate to provide reasonable assurance of the safety and effectiveness of this device and that there is sufficient information to establish special controls to provide such assurance. This device is assigned the generic name, “In vitro HIV drug resistance genotype assay.” It is identified as an in vitro diagnostic device to be used to detect HIV genomic mutations that confer resistance to specific types of antiretroviral drugs, as an aid in monitoring and treating HIV infection. FDA has identified the risks to health associated with the use of the in vitro HIV drug resistance genotype assay. These risks include inaccurate detection of resistance mutations present in a patient's viral swarm that can result in continuance of therapies that are no longer appropriate, or changes to new, inadequate therapies. In both cases, the patient's viral load may increase, worsening the clinical prognosis and accelerating the development of drug resistant viruses. Patients may be needlessly subjected to serious, deleterious side effects of inappropriate antiviral drugs. Furthermore, failure of the assay to give any results at all (sequence failure) can deny or delay beneficial, appropriate therapies, which may also result in high viral loads and their attendant morbidity. FDA believes that the class II special controls guidance document will aid in mitigating the potential risks to health by providing recommendations on performance characteristics; other considerations such as design controls, statistical methods, and instruments and software; product modification; and labeling. The guidance document also provides recommendations for fulfilling the premarket (510(k)) submission requirements for this device. FDA believes that the class II special controls guidance document, in addition to general controls, addresses the risks to health identified in the previous paragraph and provides reasonable assurance of the safety and effectiveness of the in vitro HIV drug resistance assay. Therefore, on September 26, 2001, FDA issued an order to the petitioner classifying the device into class II. FDA is codifying this device classification at 21 CFR 866.3950. Following the effective date of this final classification rule, manufacturers submitting a 510(k) premarket notification for an in vitro HIV drug resistance genotype assay will need to address the issues covered in the special controls guidance. However, the manufacturer need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurance of safety and effectiveness. Section 510(m) of the act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of this type of device and, therefore, this type of device is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, before marketing the device, which contains information about the in vitro HIV drug resistance genotype assay they intend to market. II. Analysis of Impacts FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order. The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because classification of this device into class II will relieve manufacturers of the device of the cost of complying with the premarket approval requirements of section 515 of the act (21 U.S.C. 360e), and may permit small potential competitors to enter the marketplace by lowering their costs, the agency certifies that the final rule will not have a significant impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current

(2005)Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount III. Environmental Impact The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. IV. Federalism FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies 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. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required. V. Paperwork Reduction Act of 1995 This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget

(OMB)under the Paperwork Reduction Act

(PRA)of 1995 is not required. Elsewhere in this issue of the **Federal Register** , FDA is publishing a notice announcing the availability of the guidance document entitled “Class II Special Controls Guidance Document: In Vitro HIV Drug Resistance Genotype Assay.” FDA concludes that the special controls guidance document contains information collection provisions that are subject to review by the OMB under the PRA and that have been approved by OMB in accordance with the PRA under the regulations governing premarket notification submissions (part 807, subpart E, OMB control number 0910-0120). VI. References The following reference has been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. 1. Petition from Visible Genetics, Inc., dated July 11, 2001. List of Subjects in 21 CFR Part 866 Biologics, Laboratories, Medical devices. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows: PART 866—IMMUNOLOGY AND MICROBIOLOGY DEVICES 1. The authority citation for 21 CFR part 866 continues to read as follows: Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 371. 2. Add § 866.3950 to subpart D to read as follows: § 866.3950 In vitro human immunodeficiency virus

(HIV)drug resistance genotype assay.

(a)*Identification* . The in vitro HIV drug resistance genotype assay is a device that consists of nucleic acid reagent primers and probes together with software for predicting drug resistance/susceptibility based on results obtained with these primers and probes. It is intended for use in detecting HIV genomic mutations that confer resistance to specific antiretroviral drugs, as an aid in monitoring and treating HIV infection.

(b)*Classification* . Class II (special controls). The special control for this device is FDA's guidance document entitled “Class II Special Controls Guidance Document: In Vitro HIV Drug Resistance Genotype Assay.” See § 866.1(e) for the availability of this guidance document. Dated: August 2, 2007. Jeffrey Shuren, Assistant Commissioner for Policy. [FR Doc. E7-15475 Filed 8-7-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF JUSTICE 28 CFR Part 16 [AAG/A Order No. 023-2007] Privacy Act of 1974; Implementation AGENCY: Department of Justice. ACTION: Final Rule. SUMMARY: On May 8, 2007, at 72 FR 26037, the Department of Justice issued a proposed rule to amend Title 28 of the Code of Federal Regulations, Part 16, to exempt the following new system of records from certain provisions of the Privacy Act: The National Security Division (NSD), “Foreign Intelligence and Counterintelligence Records System (JUSTICE/NSD-001),” which incorporated three previous systems of records of the Office of Intelligence Policy and Review (OIPR). This records system must be exempted from sections of the Privacy Act since, in most cases, disclosure of the existence of records pertaining to an individual would hinder authorized United States intelligence activities by informing that individual of the existence, nature, or scope of information that is properly classified pursuant to Executive Order 12958, as amended, and thereby cause damage to the national security. Further it is necessary to exempt this system to ensure unhampered and effective collection and analysis of foreign intelligence and counterintelligence information and to protect the identities of confidential sources. EFFECTIVE DATE: This final rule is effective August 8, 2007. FOR FURTHER INFORMATION CONTACT: GayLa Sessoms,

(202)616-5460 or Mary Cahill

(202)307-1823. SUPPLEMENTARY INFORMATION: The notice of the proposed rule with invitation to comment was published in the **Federal Register** on May 8, 2007, at 72 FR 26073. No comments were received. The Department of Justice is exempting JUSTICE/NSD-001 from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H), and (I),

(5)and (8); (f); (g); and (h). This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this order will not have a significant impact on a substantial number of small business entities. List of Subjects in 28 CFR Part 16 Administrative Practices and Procedures, Courts, Freedom of Information, and Privacy. Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order No. 793-78, amend 28 CFR part 16 as follows: PART 16—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION 1. The authority for part 16 continues to read as follows: Authority: 5 U.S.C. 301, 551, 552a, 552b(g), and 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, and 9701. 2. Section 16. 74 is revised to read as follows: § 16.74 Exemption of National Security Division Systems—limited access.

(a)The following system of records is exempted from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G),(H) and (I),

(5)and (8); (f); (g); and

(h)of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(1),

(2)and (5): Foreign Intelligence and Counterintelligence Records System (JUSTICE/NSD-001). These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2), and (5).

(b)Exemptions from the particular subsections are justified for the following reasons:

(1)*Subsection (c)(3).* To provide the target of a surveillance or collection activity with the disclosure accounting records concerning him or her would hinder authorized United States intelligence activities by informing that individual of the existence, nature, or scope of information that is properly classified pursuant to Executive Order 12958, as amended, and thereby cause damage to the national security.

(2)*Subsection (c)(4).* This subsection is inapplicable to the extent that an exemption is being claimed for subsection (d).

(3)*Subsection (d)(1).* Disclosure of foreign intelligence and counterintelligence information would interfere with collection activities, reveal the identity of confidential sources, and cause damage to the national security of the United States. To ensure unhampered and effective collection and analysis of foreign intelligence and counterintelligence information, disclosure must be precluded.

(4)*Subsection (d)(2).* Amendment of the records would interfere with ongoing intelligence activities thereby causing damage to the national security.

(5)*Subsections (d)(3) and (4).* These subsections are inapplicable to the extent exemption is claimed from (d)(1) and (2).

(6)*Subsection (e)(1).* It is often impossible to determine in advance if intelligence records contained in this system are relevant and necessary, but, in the interests of national security, it is necessary to retain this information to aid in establishing patterns of activity and provide intelligence leads.

(7)*Subsection (e)(2).* Although this office does not conduct investigations, the collection efforts of agencies that supply information to this office would be thwarted if the agencies were required to collect information with the subject's knowledge.

(8)*Subsection (e)(3).* To inform individuals as required by this subsection could reveal the existence of collection activity and compromise national security. For example, a target could, once made aware that collection activity exists, alter his or her manner of engaging in intelligence or terrorist activities in order to avoid detection.

(9)*Subsections (e)(4)(G),

(H)and (I), and (f).* These subsections are inapplicable to the extent that this system is exempt from the access provisions of subsection (d).

(10)*Subsection (e)(5).* It is often impossible to determine in advance if intelligence records contained in this system are accurate, relevant, timely and complete, but, in the interests of national security, it is necessary to retain this information to aid in establishing patterns of activity and providing intelligence leads.

(11)*Subsection (e)(8).* Serving notice could give persons sufficient warning to evade intelligence collection and anti-terrorism efforts.

(12)*Subsections

(g)and (h).* These subsections are inapplicable to the extent that this system is exempt from other specific subsections of the Privacy Act. Dated: July 27, 2007. Lee J. Lofthus, Assistant Attorney General for Administration. [FR Doc. E7-15455 Filed 8-7-07; 8:45 am] BILLING CODE 4410-AW-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R05-OAR-2006-0459; FRL-8450-3] Determination of Attainment, Approval of Designation of Areas for Air Quality Planning Purposes; Indiana; Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; correcting amendment. SUMMARY: This document corrects errors in the final rule redesignating LaPorte County, Indiana (LaPorte CO., IN) to attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). In the final approval for the redesignation of this area, EPA inadvertently titled the designation codification table as “OHIO OZONE” instead of “Indiana-Ozone”, and inadvertently specified the effective date of this action in the designation table as August 20, 2007, even though the effective date of the final rule was July 19, 2007, as specified in the DATES portion of the final rule. This technical correction to the final rule corrects these errors. DATES: *Effective Date:* This final rule is effective on August 8, 2007. FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6057, *doty.edward@epa.gov* . SUPPLEMENTARY INFORMATION: EPA published a notice of final rulemaking to redesignate LaPorte County, Indiana (LaPorte CO., IN) to attainment of the 8-hour ozone standard on July 19, 2007 (72 FR 39574). In the designation codification table used to revise the 8-hour ozone designation of this area, EPA incorrectly titled the table as “OHIO OZONE.” This should have read as “Indiana-Ozone.” In the same designation codification table, EPA incorrectly specified the effective date of the redesignation as August 20, 2007. This differed from the actual effective date of the final rule, July 19, 2007, as specified in the DATES section of the final rule. EPA intended to make the redesignation of this area effective upon the date of the publication of the final rule. Correction For LaPorte County in the final rule published in the **Federal Register** on July 19, 2007 (72 FR 39574), on page 39576 in the codification table, the table title: “OHIO OZONE” is corrected to read “Indiana-Ozone”. In the second column of the same codification table, the Date: “8/20/07” is corrected to read “7/19/07”. EPA is making changes in 40 CFR 81.315 in order to correct the codification of the 8-hour ozone designation for LaPorte County, Indiana. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting errors in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B). Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the SUPPLEMENTARY INFORMATION section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995

(UMRA)(Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of August 8, 2007. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This correction to 40 CFR part 81 for Indiana is not a “major rule” as defined by 5 U.S.C. 804(2). Dated: July 26, 2007. Walter W. Kovalick Jr., Acting Regional Administrator, Region 5. Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 2. Section 81.315 is amended by revising the entries for LaPorte County, Indiana: LaPorte County in the table entitled “Indiana-Ozone (8-Hour Standard)” to read as follows: § 81.315 Indiana. Indiana—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Classification Date 1 Type * * * * * * * LaPorte CO., IN: LaPorte County 7/19/07 Attainment * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-15246 Filed 8-7-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0165; FRL-8138-2] Dimethenamid; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a tolerance for residues of dimethenamid in or on grasses grown for seed. Interregional Research Project No. 4 (IR-4) requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective August 8, 2007. Objections and requests for hearings must be received on or before October 9, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0165. 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 in the electronic docket at *http://www.regulations.gov* ,or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S- 4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The 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: Jim Tompkins, Registration Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-5639; e-mail address: *Tompkins.jim@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 those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . 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 EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0165 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before October 9, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0165, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is

(703)305-5805. II. Petition for Tolerance In the **Federal Register** of March 22, 2006 (71 FR 14521) (FRL-7766-7), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0F6138) by Interregional Research Project No. 4 (IR-4), Technology Center of New Jersey, Rutgers, the State of New Jersey, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.464 be amended by establishing a tolerance for residues of the herbicide dimethenamid in or on grass, forage at 0.05 parts per million (ppm); grass, hay at 0.30 ppm; grass, straw at 0.01 ppm; and grass, seed screenings at 0.01 ppm. That notice referenced a summary of the petition prepared by BASF Corporation, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . There were no comments received in response to the notice of filing. Based on review of the residue data, the EPA determined that the tolerance for dimethenamid in or on grass, forage at should be established at 0.15 ppm instead of 0.05 ppm requested by the registrant, and the tolerance for grass, hay should be established at 2.5 ppm instead of 0.30 ppm as requested by the registrant. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to the FFDCA by the Food Quality Protection Act

(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of dimethenamid in or on grass, forage at 0.15 parts per million (ppm); grass, hay at 2.5 ppm; grass, straw at 0.01 ppm; and grass, seed screenings at 0.01 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by dimethenamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in the document “Dimethenamid-P Human Health Risk Assessment for Proposed Use on Grasses Grown for Seed, PC Codes: 120051 and 129051, Petition No: 0F6138, DP Num: 337887”. The document is available at *http://www.regulations.gov* . in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2006-0165 in that docket. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern

(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors

(UF)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for dimethenamid used for human risk assessment can be found at *www.regulations.gov* in document “Dimethenamid-P Human Health Risk Assessment for Proposed Use on Grasses Grown for Seed, PC Codes: 120051 and 129051, Petition No: 0F6138, DP Num: 337887” on page 16 in Docket ID EPA-HQ-OPP-2006-0165. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to dimethenamid, EPA considered exposure under the petitioned-for tolerances as well as all existing dimethenamid tolerances in (40 CFR 180.464). EPA assessed dietary exposures from (R,S)-2-chloro-N-[(1-methyl-2-methoxy) ethyl]-N-(2,4-dimethylthien-3-yl)-acetamide in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture

(USDA)1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide CSFII. As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. iii. *Cancer* . Dimethenamid was classified as Group C - possible human carcinogen based on benign liver tumors (males) in rats. EPA determined that the chronic Reference dose

(cRfD)would be protective of any cancer risk posed by dimethenamid because the cRfD of 0.05 milligrams/kilogram/day (mg/kg/day) used for risk assessment is based on non-cancer precursor effects in the liver. In making this determination, EPA also took into account that the tumor incidences were only slightly above historical control levels, only showed statistical significance as increased trends and not by pairwise between control and treated animals, only evidenced a statistically significant trend when benign and malignant tumors were combined, and were only seen in one species. Therefore, the cRfD is considered protective of both non-cancer and cancer effects. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for dimethenamid in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of dimethenamid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the EPA's Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of dimethenamid for acute exposures are estimated to be 9.0 parts per billion

(ppb)for surface water and 0.34 ppb for ground water. The EDWCs for chronic exposures are estimated to be 3.8 ppb for surface water and 0.34 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. The EDWCs for use sites (other than grasses grown for seed) with the highest values were used. For acute dietary risk assessment, the water concentration value of 66.7 ppb was used to access the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 20.2 ppb was used to access the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Dimethenamid is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to dimethenamid and any other substances and dimethenamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that dimethenamid has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of the FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional uncertainty/safety factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . There is no concern for increased qualitative and/or quantitative susceptibility following pre-and post-natal exposure to the

(RS)or

(S)dimethenamid technical products in rats and rabbits. In the developmental toxicity study in rats there was an increased incidence of post-implantation loss and minor skeletal variations. In the developmental toxicity study in rabbits, late resorptions and minor skeletal variations were observed at the highest dose tested. In the rabbit, the developmental effects occurred at the same dose as maternal toxicity; whereas in the rat, the developmental effects occurred at much higher doses than in the dams. The reproduction study showed decreases in body weight in both pups and parental animals at the same dose levels. 3. *Conclusion* . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: i. The toxicity database for dimethenamid is complete. ii. The toxicity data showed no increase in qualitative and/or quantitative susceptibility in fetuses and pups with *in utero* and pre- and post-natal exposure. iii. There is no evidence that dimethenamid is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity. iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessment utilizes proposed tolerance level residues and 100% crop treated information for all commodities, which results in very high-end estimates of dietary exposure. The dietary drinking water assessment utilizes values generated by model and associated modeling parameters which are designed to provide health protective, high-end estimates of water concentrations. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable uncertainty/safety factors is not exceeded. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to dimethenamid will occupy <1% of the aPAD for the population group (women ages 13-49) receiving the greatest exposure. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to dimethenamid from food and water will utilize 3% of the cPAD for the population group (all infants (<1 year)) receiving the greatest exposure. There are no residential uses for dimethenamid that result in chronic residential exposure to dimethenamid. 3. *Short-term risk* . Dimethenamid is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water. 4. *Intermediate-term risk* . Dimethenamid is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's LOC. 5. *Aggregate cancer risk for U.S. population* . The cRfD of 0.05 mg/kg/day used for risk assessment is based on non-cancer precursor effects. Therefore, the cRfD is considered protective of both non-cancer and cancer effects. Consequently, a separate aggregate cancer risk assessment was not conducted. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to dimethenamid residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography with a nitrogen phosphorus detector (GC/NPD) method (AM-0884-0193-1) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits An International Residue Limit

(IRL)Status Sheet is appended to the Dimethenamid-P Human Health Risk Assessment located in the docket for this notice. Codex has established maximum residue limits (MRLs), expressed in terms of dimethenamid-P and its enantiomer, for various crop commodities but not for grass commodities. Canada and Mexico have also established MRLs for dimethenamid-P and its enantiomer in/on various crop commodities but not for grass, hay; grass, forage; grass, straw; or grass, seed screenings. V. Conclusion Therefore, the tolerance is established for residues of dimethenamid, in or on grass, forage at 0.15 ppm; grass, hay at 2.5 ppm; grass, straw at 0.01 ppm; and grass, seed screenings at 0.01 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

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

(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). 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 23, 2007. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.464 is amended by alphabetically adding the following commodities to the table in paragraph

(a)to read as follows: § 180.464 Dimethenamid; tolerances for residues.

(a)* * * Commodity Parts per million * * * * * Grass, forage 0.15 Grass, hay 2.5 Grass, seed screenings 0.01 Grass, straw 0.01 * * * * * [FR Doc. E7-15112 Filed 8-7-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0075; FRL-8141-3] Fenazaquin, 4-tert-butylphenethyl Quinazolin-4-yl Ether; Pesticide Import Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes import tolerances for residues of fenazaquin, 4-tert-butylphenethyl quinazolin-4-yl ether, in or on apple at 0.2 parts per million (ppm); in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. Gowan Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective August 8, 2007. Objections and requests for hearings must be received on or before October 9, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0075. 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 in the electronic docket at *http://www.regulations.gov* ,or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The 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: Dan Peacock, Registration Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-5407; e-mail address: *peacock.dan@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 those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . 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 EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0075 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before October 9, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0075, 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

(703)305-5805. II. Petition for Tolerance In the **Federal Register** of April 12, 2006 (71 FR 18736) (FRL-7775-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of an import pesticide petition (PP 9E5059) by Gowan Company, 370 S. Main Street, Yuma, AZ 85364. The petition requested that 40 CFR part 180 be amended by establishing import tolerances for residues of the insecticide, fenazaquin, in or on apple at 0.2 ppm; in or on pear at 0.2 ppm, and in or on citrus fruits at 0.5 ppm. That notice referenced a summary of the petition prepared by Gowan Company, the registrant, which is available to the public in the docket, under docket identification

(ID)number EPA-HQ-OPP-2006-0075-0002 at *http://www.regulations.gov* . There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, EPA has modified Gowan Company's request for tolerances as follows. This regulation establishes import tolerances for residues of fenazaquin in or on apple at 0.2 ppm; in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. The reason for the addition of a tolerance for citrus oil at 10 ppm is explained in Unit V. (Conclusions). III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” These provisions were added to the FFDCA by the Food Quality Protection Act

(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for import tolerances for residues of Fenazaquin in or on apple at 0.2 ppm; in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by Fenazaquin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* . The referenced document (Fenazaquin: PP# 9E5059. Tolerances on apples, pears and citrus fruits exported to the U.S. HED Risk Assessment) is available in the docket established by this action, which is described under ADDRESSES , and is identified as docket ID No. EPA-HQ-OPP-2006-0075-0004 in that docket. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern

(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure

(MOE)called for by the product of all applicable uncertainty/safety factors is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for Fenazaquin used for human risk assessment is shown in Table 1 below of this unit and in docket ID number EPA-HQ-OPP-2007-0075-0004 in an alternate format. **Table 1.—Summary of Toxicological Dose and Endpoints for Fenazaquin for Use in Human Risk Assessment** Exposure/Scenario Dose used in risk assessment, interspecies and intraspecies and any traditional FQPA, SF Special FQPA SF and level of concern for risk assessment UF Study and toxicological effects Acute dietary (general population including infants and children) NOAEL = 10 mg/kg/day SF = 100 Acute RfD = 0.1 mg/kg/day Special FQPA SF = 1 x aPAD = acute RfD = 0.1 mg/kg/day Rat developmental toxicity LOAEL = 40 mg/kg/day based on findings (as early as GD 6-9) of decreased body weight gain, food intake, and food efficiency. Chronic dietary (all populations) NOAEL= 5 mg/kg/day SF = 100 Chronic RfD = 0.05 mg/kg/day Special FQPA SF = 1 x cPAD = chronic RfD = 0.05 mg/kg/day Rat two-generation toxicity study LOAEL = 25 mg/kg/day based on excessive salivation and decreased body weight/weight gain and food intake. Short-term, intermediate-term, and long-term incidential oral (1-30 days; 1-6 months) (Residential) These exposure scenarios do not apply to this risk assessment because there are no proposed registered residential uses of fenazaquin. Short-term, intermediate-term, and long-term dermal (1-30 days; 1-6 months) (Residential) These exposure scenarios do not apply to this risk assessment because there are no proposed registered residential or occupational uses of fenazaquin. Short-term, intermediate-term, long-term inhalation (1-30 days; 1-6 months) (Residential) These exposure scenarios do not apply to this risk assessment because there are no proposed registered residential or occupational uses of fenazaquin. Cancer (oral, dermal, inhalation) A quantitative exposure assessment for cancer risk was not performed because fenazaquin has been classified as “Not likely to be Carcinogenic to Humans” and is not expected to pose a cancer risk. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to fenazaquin, EPA considered exposure under the petitioned-for tolerances as well as a tolerance in or on citrus oil. EPA assessed dietary exposures from Fenazaquin in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture

(USDA)1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. Percent Crop Treated

(PCT)and anticipated residues were not used. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1998 CSFII. As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. Percent Crop Treated

(PCT)and anticipated residues were not used. iii. *Cancer* . A quantitative exposure assessment for cancer risk was not performed because fenazaquin has been classified as “Not likely to be Carcinogenic to Humans” and is not expected to pose a cancer risk. iv. *Anticipated residue and PCT information* .PCT and anticipated residues were not used. 2. *Dietary exposure from drinking water* . Because the import tolerances in this Final Rule do not involve current or proposed registered uses of Fenazaquin in the United States, EPA does not anticipate dietary exposure from drinking water. Therefore, EPA has not assessed such exposure in this document. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Fenazaquin is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fenazaquin and any other substances and fenazaquin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fenazaquin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional

(10X)tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional uncertainty/safety factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . There are no qualitative or quantitative prenatal or postnatal susceptibility issues based on available data from two developmental toxicity studies and a two-generation reproduction toxicity study. 3. *Conclusion* . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: i. The toxicity database for fenazaquin is complete. ii. There is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity. iii. There is no evidence that fenazaquin results in increased susceptibility in *in utero* rats or rabbits in the prenatal developmental studies or in young rats in the two-generation reproduction study. iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. v. There is no potential for dietary drinking water exposure and there are no residential uses. By using these screening-level assessments, acute and chronic exposures/risks will not be underestimated. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure

(MOE)called for by the product of all applicable uncertainty/safety factors is not exceeded. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food to fenazaquin will occupy 48% of the aPAD for the population group (children, 1-2 years old) receiving the greatest exposure. There is no acute dietary exposure from water. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to fenazaquin from food will utilize 25% of the cPAD for the population group (children, 1-2 years old) receiving the greatest exposure. Because the tolerances being established in this Final Rule are for uses outside of the United States, there is no acute dietary exposure from water. There are no residential uses for Fenazaquin that result in chronic residential exposure to Fenazaquin. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Fenazaquin is not registered for use on any sites that would result in residential exposure. Also, because the tolerances being established in this Final Rule are for uses outside of the United States, there is no acute dietary exposure from water. Therefore, the aggregate risk is the sum of the risk from food, which does not exceed the Agency's level of concern. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Fenazaquin is not registered for use on any sites that would result in residential exposure. Also, because the tolerances being established in this final rule are for uses outside of the United States, there is no chronic dietary exposure from water. Therefore, the aggregate risk is the sum of the risk from food, which does not exceed the Agency's level of concern. 5. *Aggregate cancer risk for U.S. population* . Fenazaquin is not expected to pose a cancer risk based on negative cancer findings in two adequate rodent carcinogenicity studies. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to fenazaquin residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography) is available to enforce the tolerance expression, using the existing Food and Drug Administration

(FDA)Multiresidue Methods in the Pesticide Analytical Manual (PAM), Vol I, available from *http://www.cfsan.fda.gov/~lrd/pestadd.html* . B. International Residue Limits There are no established or proposed Canadian, Mexican or Codex MRLs for residues of fenazaquin in plant commodities. C. Response to Comments The Agency did not receive any comments to this request for import tolerances for fenazaquin. V. Conclusion Therefore, the Agency is establishing import tolerances for residues of Fenazaquin in or on apple at 0.2 parts per million (ppm); in or on pear at 0.2 ppm; in or on citrus fruit group 10, except grapefruit, at 0.5 ppm; and in or on citrus oil at 10 ppm. The original petition did not request the establishment of a tolerance in or on citrus oil at 10 ppm. However, the Agency added this tolerance for the following reason. Separate tolerances are not required for apple and orange juice as residues do not concentrate in these commodities. However, the citrus processing studies indicate that fenazaquin residues concentrate on average by 25x in citrus oil and thus residues in citrus oil could exceed the tolerance for citrus fruits. Based on the 25x processing factor and residue data on fenazaquin levels in or on oranges, a tolerance of 10 ppm would be appropriate for citrus oil. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

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

(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). 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 26, 2007. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.632 is added to read as follows: § 180.632 Fenazaquin; import tolerances for residues.

(a)*General* . Import tolerances are established for residues of the insecticide and miticide, fenazaquin, 4-tert-butylphenethyl quinazolin-4-yl ether, in or on raw agricultural commodities as follows: Commodity Parts per million Apple 0.2 Citrus Oil 10 Fruit, Citrus, Group 10, except Grapefruit 0.5 Pear 0.2

(b)*Section is emergency exempotions* . [Reserved]

(c)*Tolerances with regional registration* . [Reserved]

(d)*Indirect or inadvertent residues* . [Reserved] [FR Doc. E7-15334 Filed 8-7-07; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs 41 CFR Part 60-300 RIN 1215-AB46 Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Disabled Veterans, Recently Separated Veterans, Other Protected Veterans, and Armed Forces Service Medal Veterans AGENCY: Office of Federal Contract Compliance Programs, Labor. ACTION: Final rule. SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is publishing a new set of regulations to implement the amendments to the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (“VEVRAA”) that were made by the Jobs for Veterans Act (“JVA”) enacted in 2002. The JVA amendments raised the threshold dollar amount of the Government contracts that are subject to the affirmative action provisions of VEVRAA, changed the categories of veterans protected by the law, and changed the manner in which the mandatory job listing requirement is to be implemented. The final regulations published today apply only to covered Government contracts entered into or modified on or after December 1, 2003. The existing VEVRAA implementing regulations found in 41 CFR part 60-250 will continue to apply to Government contracts entered into before December 1, 2003. DATES: *Effective Date:* These regulations are effective September 7, 2007. FOR FURTHER INFORMATION CONTACT: Lynn A. Clements, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422, Washington, DC. 20210. Telephone:

(202)693-0102 (voice) or

(202)693-1337 (TTY). SUPPLEMENTARY INFORMATION: Current Regulations and Rulemaking History The Jobs for Veterans Act (“JVA”), (Pub. L. 107-288, 116 Stat. 2033), was signed by the President on November 2, 2002. Section 2(b)(1) of the JVA amended the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, (“VEVRAA”). Section 2(b)(3) of the JVA made the amendments applicable to Government contracts entered into on or after December 1, 2003. Prior to amendment by the JVA, the affirmative action provisions of VEVRAA required parties holding Government contracts or subcontracts of $25,000 or more to “take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era, recently separated veterans, and any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.” OFCCP has adopted the term “other protected veteran” to refer to “veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.” In addition, prior to amendment, VEVRAA required that the Secretary promulgate regulations requiring contractors “to list immediately with the appropriate local employment service office all of its employment openings, except that the contractor may exclude openings for executive and top management positions, positions which are to be filled from within the contractor's organization, and positions lasting three days or less.” The JVA amendments made three significant changes to the affirmative action provisions of VEVRAA. First, section 2(b)(1) of the JVA increased the coverage threshold from a contract of $25,000 or more to a contract of $100,000 or more. Second, the JVA amendments changed the categories of covered veterans under VEVRAA. The JVA eliminated the category of Vietnam era veterans from coverage under VEVRAA. However, many Vietnam era veterans may remain covered in other categories. The JVA added as a new category of covered veterans—those “veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.” The JVA expanded the coverage of veterans with disabilities. Prior to amendment by the JVA, VEVRAA covered veterans rated as having 10% to 20% serious employment handicap or a disability rated 30% or more by the Department of Veterans Affairs. The JVA amendments expanded coverage to include all veterans with service-connected disabilities. The JVA also expanded the coverage of “recently separated veterans” from one to three years after discharge or release from active duty. Third, the JVA modified the mandatory job listing requirement for covered contractors. Currently, the regulation at 41 CFR 60-250.5 allows contractors to satisfy their job listing obligations by listing employment openings either with the appropriate local employment service office or with America's Job Bank (AJB). Section 2(b)(1) of the JVA requires the Secretary to promulgate regulations that obligate each covered contractor to list all of its employment openings with “the appropriate employment service delivery system (as defined in section 4101(7) of this title).” Section 5(c)(1) of the JVA defines the term “employment service delivery system” as “a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.” *See* 38 U.S.C. 4101(7). (The Wagner-Peyser Act established the Employment Service, which is a nationwide system of public employment offices.) The JVA provides that a contractor also may list employment openings with “one-stop career centers under the Workforce Investment Act of 1998, other appropriate service delivery points, or America's Job Bank (or any additional or subsequent national electronic job bank established by the Department of Labor).” Thus, as a result of the JVA amendments, listing job openings solely with AJB will no longer comply with the requirements of VEVRAA. On January 20, 2006, OFCCP published for a 60-day comment period a Notice of Proposed Rulemaking (NPRM), 71 FR 3352, to implement the JVA amendments to VEVRAA. OFCCP published a notice on March 21, 2006, 71 FR 14135, which corrected the e-mail address for submitting comments on the January 20 NPRM, and extended the comment period for seven days, or until March 28, 2006. OFCCP received five comments: two from State workforce development agencies, and three from employer associations whose members include Federal contractors. OFCCP reviewed and carefully considered the comments in the development of this final rule. Overview of the Final Rule The final rule adopts regulations implementing the JVA amendments to VEVRAA that will be codified in a new 41 CFR part 60-300. OFCCP explained in the preamble of the NPRM that most provisions in part 60-300 are identical to the parallel provisions in the existing VEVRAA implementing regulations in 41 CFR part 60-250, except where differences are required to implement the JVA amendments. Consequently, the same section numbers are used in both parts 60-250 and 60-300. Generally, the differences between the two sets of regulations are found in the provisions that reference the contract coverage threshold and the categories of covered veterans. In the Section-by-Section Analysis of the NPRM, OFCCP highlighted only the provisions in the proposed rule that differ from provisions in the part 60-250 regulations. Likewise, the provisions in the part 60-250 regulations that have been incorporated in today's final rule without substantive change are omitted from the discussion in the Section-by-Section Analysis of Comments and Revisions below. This final rule, for the most part, adopts the provisions that were proposed in the January 20 NPRM. However, a few of the proposed provisions have been modified in response to the public comments. The discussion which follows identifies the significant issues raised in comments received in response to the NPRM, provides OFCCP's responses to those comments, and explains any resulting changes to the proposed rule. Section-by-Section Analysis of Comments and Revisions Subpart A—Preliminary Matters, Equal Opportunity Clause Section 60-300.1 Purpose, Applicability and Construction This section discusses the purpose, applicability, and construction of the part 60-300 regulations. Paragraphs

(a)and (c)(2) refer to the four categories of veterans covered under the JVA:

(1)Disabled veterans,

(2)recently separated veterans,

(3)other protected veterans, and

(4)Armed Forces service medal veterans. Paragraph

(b)states that this part applies to any Government contract or subcontract of $100,000 or more entered into on or after December 1, 2003. The singular form of the term “contract” is used in paragraph

(b)in order to make clear that a single contract in the amount of $100,000 or more is required to establish coverage under VEVRAA; contracts are not aggregated to reach the coverage threshold. Additionally, paragraph

(b)states that a contractor whose only covered Government contract was entered into before December 1, 2003, must comply with the requirements in the existing VEVRAA implementing regulations in part 60-250, and a contractor that has covered contracts entered into both before and on or after December 1, 2003, must comply with the regulations in part 60-300 and existing part 60-250. Two commenters asked whether contractors subject to the existing VEVRAA regulations in part 60-250 and the regulations in part 60-300 implementing the JVA amendments must develop two separate VEVRAA affirmative action programs (AAPs). OFCCP wishes to clarify that a contractor that must comply with both sets of VEVRAA regulations need not develop two AAPs. The JVA amendments increased the dollar amount of the contract that triggers the written AAP requirement, but the JVA amendments did not affect the required contents of the written AAP under VEVRAA. OFCCP explained in the NPRM that, with the exception of the changes necessitated by the JVA amendments, § 60-300.44, which addresses the requirements of AAPs under VEVRAA, is identical to § 60-250.44. Since the contents of the written AAP required under § 60-300.44 and § 60-250.44 are the same, contractors may develop a single AAP that satisfies the requirements of both regulations. One commenter, an employer association, asserted that it would be unduly burdensome and confusing for contractors to have to comply with two sets of VEVRAA regulations, as they would be required to track different categories of protected veterans. The commenter stated that OFCCP has some flexibility, and, as a matter of enforcement policy, the agency could adopt a final rule that requires contractors to comply with only one set of VEVRAA regulations. The commenter argued that OFCCP could state in the final rule that contractors need only comply with the new JVA regulations, even if they also have contracts that are covered under the existing regulations in part 60-250. Further, the commenter stated that the final rule could provide that contractors entering into contracts that are covered under the regulations in new part 60-300 after the start of the AAP year have the option of continuing to comply only with the recordkeeping and reporting requirements under the part 60-250 rules until the end of the AAP year. OFCCP disagrees with the commenter's claim that compliance with the requirements of two sets of VEVRAA regulations would be unduly burdensome. First, complying with the requirements of part 60-300 will not increase the paperwork burden of contractors already covered under the VEVRAA regulations. The regulations in part 60-300 implementing the JVA amendments, like the existing VEVRAA implementing regulations in part 60-250, require that contractors extend to all applicants an invitation to self-identify as a veteran who may be covered under the Act and wishes to benefit under the affirmative action program. The only difference between the invitations to self-identify required under part 60-300 and part 60-250 is the categories of veterans that are invited to self-identify. Because OFCCP has included a sample invitation to self-identify in Appendix B of the part 60-300 regulations, compliance with the part 60-300 requirement to invite applicants to self-identify as covered veterans will not add to the burden hours associated with the information collection requirements of the affirmative action provisions of VEVRAA. If a contractor is covered by part 60-250 and part 60-300, the contractor may continue using the part 60-250 sample invitation to self-identify form and add the part 60-300 sample invitation to self-identify form once the final rule becomes effective. Contractors also may choose to combine the two sample invitation to self-identify forms provided in part 60-250 and part 60-300 such that the contractor extends to applicants one invitation to self-identify which lists all of the categories of veterans protected under parts 60-250 and 60-300. Further, the JVA did not alter the written AAP requirement under VEVRAA. Contractors that also are subject to the regulations in part 60-300 may continue to implement the AAPs developed under the part 60-250 regulations, but their affirmative action efforts must include the three additional categories of covered veterans. These contractors may develop one AAP, rather than two, as long as the components of that AAP, including the outreach and positive recruitment activities, include all categories of veterans protected under parts 60-250 and 60-300. Moreover, OFCCP believes that only a small percentage of contractors will be required to comply with both sets of VEVRAA regulations. The term “Government contract” is defined in existing § 60-250.2(i) and § 60-300.2(i) of the final rule as “any agreement or modification thereof between any contracting agency and any person for the purchase, sale, or use of personal property or nonpersonal services (including construction).” Existing § 60-250.2(i)(1) and 60-300.2(i)(1) of the final rule provide that a “modification” is “any alteration in the terms and conditions of a contract, including supplemental agreements, amendments and extensions.” The JVA applies to Government contracts entered on or after December 1, 2003. Because a contract modification is a “Government contract”, the JVA applies to modifications of otherwise covered contracts made on or after December 1, 2003. Consequently, modification of a contract that would otherwise be covered by part 60-300 on or after December 1, 2003, but for the date the contract was entered into, would have the effect of modifying the VEVRAA equal opportunity clause; the new requirements of part 60-300 would be applicable to the modified contract, rather than the old requirements of part 60-250. To clarify the effect of modifying a contract on the VEVRAA requirements applicable after modification, language has been added to § 60-300.1(b) addressing the issue. In the final rule, § 60-300.1(b) has been revised to state “[t]his part applies to any Government contract or subcontract of $100,000 or more, entered into or modified on or after December 1, 2003 * * *. In addition, § 60-300.1(b) of the final rule states “[a]ny contractor or subcontractor whose only contract * * * was entered into before December 1, 2003 (and not modified as described above) must follow part 60-250.” The regulations published today and the existing VEVRAA implementing regulations in part 60-250 do not require contractors to count the number of veterans in their employ. The Veterans' Employment and Training Service (VETS), rather than OFCCP, administers and enforces the requirement that contractors track and report on the number of employees in their workforces who are covered veterans, and has established a form for reporting the required information. *See* 41 CFR Chapter 61. Finally, OFCCP also disagrees with the assertion that the final rule could provide that contractors need comply with only one set of VEVRAA regulations. Many of the veterans currently protected under the regulations in part 60-250 remain covered in the categories of veterans protected under the JVA. However, because the JVA eliminated the Vietnam era veterans from coverage under VEVRAA, some Vietnam era veterans might lose the VEVRAA protections prematurely if OFCCP were to adopt a rule requiring contractors with contracts entered both before and on and after December 1, 2003, to comply only with the regulations implementing the JVA amendments. Conversely, some veterans covered under the JVA were not covered previously. OFCCP does not have the authority to permit contractors subject to both pre- and post-JVA requirements to comply only with post-JVA requirements because OFCCP rulemaking authority can only be exercised in a manner that carries out the provisions of the statute. Here, Congress expressly made the JVA amendments applicable to contracts entered into on or after December 1, 2003, and thereby provided that veterans covered under contracts entered into prior to the effective date of the JVA amendments remain covered under VEVRAA. Section 60-300.2 Definitions In the NPRM, OFCCP proposed to incorporate in this section many of the definitions contained in existing § 60-250.2 without any substantive changes. The proposal called for some definitions in existing § 60-250.2 to be incorporated in § 60-300.2 with modifications necessitated by the JVA amendments. Further, OFCCP proposed to adopt a few definitions that have no parallel definitions in the existing § 60-250.2. Likewise, some definitions in § 60-250.2 were not included in the proposed rule because of the changes the JVA made to VEVRAA. OFCCP received several comments on the proposed definitions, and all were from one commenter. The commenter, an employer association, requested that the final rule clearly indicate that only veterans of the United States armed forces, as opposed to veterans of the armed forces of other nations, are covered under the affirmative action provisions of VEVRAA. The commenter stated that one option for clarifying coverage under VEVRAA would be to add a separate definition for the term “veteran.” Alternatively, the commenter recommended that OFCCP add clarifying language to the definitions for the terms “disabled veteran” and “recently separated veteran.” The commenter noted that the definitions for the terms “other protected veteran” and “Armed Forces service medal veteran” already indicate that the regulations apply to veterans of the United States armed forces. In response to this comment, the definitions for the terms “disabled veteran” and “recently separated veteran” in paragraphs

(n)and (q), respectively, have been revised in the final rule to make clear that only veterans “who served on active duty in the U.S. military, ground, naval, or air service” are covered under the affirmative action provisions of VEVRAA. For the sake of clarity and consistency, this language also has been added to the definitions for the term “other protected veteran” in paragraph

(p)and the term “Armed Forces service medal veteran” in paragraph

(r)in the final rule. Paragraph

(p)also replaces “person” with “veteran” for clarity. The commenter also expressed the view that veterans who are discharged from service for certain serious offenses should not be entitled to the protections of the affirmative action provisions of VEVRAA. Accordingly, the commenter suggested that OFCCP adopt in the final rule coverage standards similar to those established under the regulations implementing the Uniformed Services Employment and Reemployment Rights Act (USERRA). The regulation at 20 CFR 1002.135 excludes from the protections of USERRA employees whose military service falls within one of four categories, including separation from service with a dishonorable or bad conduct discharge. For purposes of the laws relating to veterans' benefits, which include the affirmative action provisions of VEVRAA, the definition of veteran means “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” See 38 U.S.C. 101(2). Thus, dishonorably discharged veterans are excluded from the protections of VEVRAA by statute. Since persons who are separated from service with dishonorable discharges do not meet the statutory definition of “veteran,” these persons are not entitled to the protections of the affirmative action provisions of VEVRAA. For clarity, the final rule defines veteran in paragraph

(z)as “a person who served in the active military, naval, or air service of the United States, and who was discharged or released therefrom under conditions other than dishonorable.” One comment addressed the definition for the term “other protected veteran.” The commenter stated that employers need guidance on the wars, campaigns, and expeditions for which a campaign badge has been authorized. The commenter asserted that the information available on the Office of Personnel Management's Web site is out-of-date and only somewhat relevant to private employers. The commenter suggested that OFCCP develop an up-to-date list of the covered conflicts for which a campaign badge has been authorized, or work with other affected agencies to develop and maintain a link to a Web site that contains a current list of the wars, campaigns, and expeditions that would qualify a veteran as an “other protected veteran.” OFCCP agrees that contractors should have access to information about the veterans included in the category “other protected veterans.” Therefore, OFCCP will provide a link on its Web site to a list compiled by the Department of Defense, as well as a link to the information maintained by the Office of Personnel Management. These links will allow contractors to find lists of wars, campaigns, and expeditions for which a campaign badge has been authorized. OFCCP is providing these links as a courtesy to the contractor community. Contractors remain responsible for complying with their nondiscrimination and affirmative obligations regarding all protected veterans. Paragraph

(p)is adopted in the final rule as stated earlier in this section. The employer association providing comments on the definitions also stated that guidance was needed on the operations that would qualify a veteran as an “Armed Forces service medal veteran,” which is defined in paragraph (r). As was explained in the NPRM, Armed Forces service medals are awarded to military personnel who participate in a United States military operation deemed to be significant activity, and who encounter no foreign armed opposition or imminent hostile action. The commenter requested that OFCCP provide contractors access to an up-to-date list of the operations for which Armed Forces service medals have been awarded. OFCCP does not believe that providing such a list is necessary because the form used to document a veteran's separation from active duty military service, called the DD Form 214, Certificate of Release or Discharge from Active Duty, indicates whether a veteran is a recipient of the Armed Forces service medal. Veterans who self-identify as an “Armed Forces service medal veteran” may be asked to provide a copy of this form. Paragraph

(r)is adopted in the final rule as stated earlier in this section. OFCCP proposed in the NPRM to incorporate in paragraph

(y)the definition of the “employment service delivery system” that was added to the definitional section of VEVRAA, 38 U.S.C. 4101(7), by Section 5(c)(1) of the JVA. Under the JVA, “employment service delivery system” means a “service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.” (The Wagner-Peyser Act established the Employment Service, which is a nationwide system of public employment offices.) The commenter recommended that OFCCP revise the definition of “employment service delivery system” in the final rule to state in plain language the name or type of agency with which the employer is to list its job openings. OFCCP agrees that contractors should have clear guidance regarding the types of agencies with which the employer is to list job openings. However, OFCCP also recognizes contractors may wish to satisfy the mandatory job listing requirement in a variety of ways, depending on the number, timing, and location of the positions to be filled. For this reason, OFCCP believes that further defining the appropriate “employment delivery system” would unnecessarily constrain contractors’ flexibility to list with an appropriate delivery system. Instead, in § 60-300.5 of the final rule, OFCCP has added language providing contractors with examples of the types of delivery systems with which contractors may list job openings. The revised language specifically provides that listing employment openings with the state workforce agency job bank or the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment delivery system. In light of these changes to § 60-300.5, paragraph

(y)of the final rule will remain as written in the NPRM. Section 60-300.4 Coverage and Waivers This section is identical to § 60-250.4 in the existing VEVRAA regulations, except that proposed paragraphs (a)(1) and (a)(2) implement the JVA amendments and state that contracts of $100,000 or more are covered under VEVRAA. We received no comments for this section. Accordingly, § 60-300.4 is adopted in the final rule as proposed. Section 60-300.5 Equal Opportunity Clause Paragraph

(a)of the final rule contains the equal opportunity

(EO)clause that must be included in all covered Government contracts and subcontracts. The language in paragraph (a)(1) of the EO clause is identical to the language in the parallel provision in existing § 60-250.5, except that paragraph (a)(1) refers to the categories of veterans protected under the JVA. Thus, “disabled veterans” and “Armed Forces service medal veterans” are mentioned in paragraph (a)(1) of the final rule, while “special disabled veterans” and “veterans of the Vietnam era” are referenced in existing § 60-250.5(a)(1). Paragraphs (a)(2) and (a)(3) set out the contractor's obligation to list employment openings with the appropriate employment service delivery system. The JVA amendments eliminated listing employment openings solely with America's Job Bank as an option for complying with the mandatory job listing requirement. The JVA requires that contractors and subcontractors list their employment openings with the appropriate “employment service delivery system.” *See* 38 U.S.C. 4212(a)(2)(A). In addition to listing their employment openings with the appropriate employment service delivery system, the JVA provides that contractors and subcontractors also may list their employment openings with one-stop career centers under the Workforce Investment Act of 1998, other appropriate service delivery points, or America's Job Bank (or any additional or subsequent national electronic job bank established by the U.S. Department of Labor). Accordingly, paragraph (a)(2) of the final rule generally tracks the JVA provision, and provides that contractors must list employment openings with the appropriate employment service delivery system. The three employer associations all expressed concern about the elimination of AJB as a means for contractors to fulfill the mandatory job listing requirements. One employer association asserted that contractors that regularly advertise multiple job openings in locations throughout the country will face huge administrative burdens if they are required to list each job opening with individual employment service offices. The employer association stated that listing with the AJB allowed contractors to publicize job opportunities on a nationwide basis through a single Web site on the Internet, rather than listing them with each local employment service office of each location where an open position is being filled. The association claimed that a small army of dedicated staff would be required to comply with the requirement to list each job with individual employment service offices. Similarly, another employer association claimed that the money, time, and resources required to comply with the requirement to separately list job openings with each individual local employment services agency would be substantial. The commenter maintained that compliance with the separate listing requirement is made more challenging by the different protocols for listing jobs that exist in the various local employment services offices. According to the commenter, some employment service offices require contractors to post openings only by regular mail, some accept listings via fax, and some accept postings only by email. One commenter urged OFCCP to consider alternatives to the proposed job listing provision that would reduce the burden on contractors. Two commenters raised questions about the status of a Department-sponsored solution that would allow contractors to meet both the current and the revised mandatory job listing requirement. One commenter recommended that the Department continue the effort to develop a Department-sponsored solution, and that OFCCP delay publishing the final rule until after a solution has been implemented. Delaying publication of the final rule until development of a Department-sponsored solution has been completed is not a feasible option. In December 2005, the Government Accountability Office

(GAO)issued a report entitled “Veterans’ Employment and Training Service Labor Actions Needed to Improve Accountability and Help States Implement Reforms to Veterans' Employment Services” (GAO-06-176). The GAO Report sets forth results of a review of progress made in implementing the reforms to employment and training services for veterans required by the JVA. GAO noted that the Department has not yet issued regulations to implement the JVA amendments to the affirmative action provisions of VEVRAA and recommended that the Department issue such regulations as soon as possible. In response to the GAO Report, OFCCP agreed to expedite issuing the federal contractor regulations. However, OFCCP appreciates the difficulties contractors may face if they must list job openings with multiple employment service delivery systems, particularly if those systems maintain different methods for posting job openings or if the contractor must act to fulfill multiple job openings in different geographical locations in a short period of time. Therefore, OFCCP has added language to this section providing that contractors may fulfill their job posting requirement by listing job openings with the appropriate state workforce agency job bank. The appropriate state workforce agency job bank shall be the job bank in which the job opening occurs. Contractors also may satisfy the posting requirement by listing job openings with the local employment service delivery system where the opening occurs. A contractor may satisfy the mandatory job listing requirement by submitting job listings to the appropriate employment delivery system in a variety of ways, including via mail, facsimile (FAX), electronic mail, or other electronic postings. The vast majority of the state workforce agency job banks accept job postings via the Internet. Contractors may use third parties, such as private or non-profit sector job banks, Internet gateway and portal sites, and recruiting services and directories, to assist them with the transmission of job postings to the appropriate employment delivery system. OFCCP believes that this approach allows contractors the necessary flexibility to determine the most effective way to comply with the mandatory job listing requirement, depending on the number, timing, and location of the positions to be filled. OFCCP will provide a link on its Web site to all state workforce agency job banks. This link will allow contractors to identify those state workforce agency job banks that accept electronically-transmitted job postings. OFCCP is providing this link as a courtesy to the contractor community. Contractors remain responsible for complying with the requirement to list with the appropriate employment delivery system. In order to make clear that contractors may satisfy the mandatory job listing requirement in a variety of ways, paragraph (a)(2) of the final rule reads as follows: “The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing employment openings with the state workforce agency job bank or the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system. In paragraph (a)(4), OFCCP is changing the phrase “state employment security agency” to “state workforce agency” so that paragraph (a)(4) is consistent with paragraph (a)(2) of this section. OFCCP also received two comments on the definition of “executive and senior management” in proposed paragraph (a)6.ii. In order to conform to a technical amendment made by the JVA, OFCCP proposed to use the term “senior management” in proposed paragraph (a)6.ii., instead of “top management,” which is the term used in existing § 250.5(a)6.ii. However, in all other respects, the proposed definition for the term “executive and senior management” is identical to the definition of “executive and top management” found in the existing § 250.5(a)6.ii. One commenter observed that, in defining the term “executive and senior management” in proposed § 60-300.5(a)6.ii. and current § 250.5(a)6.ii., OFCCP followed the regulations implementing the exemption for executives from the minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA), published at 29 CFR part 541 (“part 541 regulations”). The commenter also noted that the Department of Labor revised the part 541 regulations, effective August 23, 2004, and that the revisions include streamlined tests for determining whether a person qualifies as an “executive” exempt from the overtime provisions. See 69 FR 22122. For the sake of consistency and in order to avoid confusion, the commenter maintained that the definition of “executive and senior management” in paragraph (a)6.ii. should conform to the updated tests for determining who qualifies as an “executive employee” set forth in the part 541 regulations. In response to the comment, OFCCP has revised the definition of “executive and senior management” to reflect the standards for determining when a person qualifies as an “executive employee” found in 29 CFR 541.100 and 541.101. Thus, paragraph (a)6.ii. in the final rule defines the term “executive and senior management” as:

(1)any employee “(a) Compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities;

(b)Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

(c)Who customarily and regularly directs the work of two or more other employees; and

(d)Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight;” or

(2)any employee “who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management.” Another commenter expressed the view that the proposed definition of “executive and senior management” could be interpreted to exclude from the mandatory job listing requirement “most low level managers and supervisors.” The commenter argued that “executive and senior management” should be defined as “positions which direct company policy and direction and not be hinged to supervision of employees.” OFCCP believes that its revised definition adequately addresses this commenter's concerns, as supervisory responsibility is not the sole determinant of whether a job is considered “executive and senior management.” In order to be considered an “executive and top management” position exempt from the mandatory job listing requirement, a job must satisfy all of the factors listed in paragraph (a)6.ii. Subpart B—Discrimination Prohibited Section 60-300.21 Prohibitions The final rule adopts § 60-300.21 as proposed. This section is identical to existing § 60-250.21, except that the categories of veterans covered under the JVA are referenced in the final rule. Paragraph

(c)provides that it is unlawful for contractors to participate in contractual arrangements that have the effect of subjecting the applicants and employees who are covered veterans to discrimination. A comment from a workforce development agency expressed concerns about the contractual arrangements federal contractors have with temporary employment agencies. The commenter asserted that many federal contractors use temporary employment agencies to recruit candidates for job vacancies and that when the temporary agencies receive job orders from a client they tend to refer candidates they have “on-file.” According to the commenter, temporary agencies are not obligated to comply with the mandatory job listing requirements because they “are not by definition subcontractors to the federal contractor.” The commenter argued that, to better serve veterans, either temporary agencies should be considered as subcontractors, or contractors listing job orders with temporary agencies also should be required to list their job orders with the employment service. A contractor's use of an employment agency does not relieve the contractor of its obligation to comply with the mandatory job listing requirement. Section 60-250.5(a) expressly provides that “listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made *at least concurrently* with the use of any other recruitment source or effort * * *” (Emphasis supplied.) Thus, the regulations generally require contractors to list with the appropriate employment service delivery system the jobs that also are provided to an employment agency. The only jobs listed with an employment agency that need not be listed with the employment service are those exempt from the mandatory job listing requirement. Section 60-250.5(a)6.i exempts from the mandatory job listing requirement positions that are executive and senior management, positions filled from within the contractor's organizations, and positions lasting three days or less. In addition, paragraph

(c)of this section forbids contractors from using an employment agency that discriminates against covered veterans. Accordingly, a contractor would violate VEVRAA if it uses an employment agency that discriminates against veterans to recruit for vacancies. Further, OFCCP disagrees with the commenter's assertion that all temporary employment agencies are excluded from coverage under VEVRAA. Section 60-300.2(l), as does the parallel provision in the part 60-250 regulations, defines the term “subcontract” as “any agreement or arrangement between a contractor and any person * * * which, in whole or in part, is necessary to the performance of any one or more contracts; or * * * under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed.” Whether a particular subcontract is covered under the VEVRAA regulations depends on a variety of factors such as the requirements of the Government contract in issue and the role of the subcontractor in fulfilling the obligations of the Government contract. Thus, some, but certainly not all, temporary employment agencies may have agreements with Government contractors that would render them a covered subcontractor under VEVRAA. Section 60-300.22 Direct Threat Defense This section is identical to existing § 60-250.22, except that the cross-reference is to § 60-300.2(w) of this final rule. OFCCP received no comments on this section. It is adopted in the final rule as proposed. Section 60-300.23 Medical Examinations and Inquiries This section is identical to existing § 60-250.23, except that the proposal references the category of “disabled veteran(s)” rather than “special disabled veterans.” No comments were submitted on this section. The final rule adopts § 60-300.23 as proposed. Section 60-300.24 Drugs and Alcohol This section is identical to existing § 60-250.24, except that this section includes a citation to § 60-300.23(d). OFCCP received no comments on this section. Accordingly, the final rule adopts this section as proposed. Section 60-300.25 Health Insurance, Life Insurance and Other Benefit Plans This section is identical to § 60-250.25 in the current VEVRAA implementing regulations, except that “disabled veteran” rather than “special disabled veteran” is referenced in paragraph (d). We received no comments on this section. The final rule adopts § 60-300.25 as proposed. Subpart C—Affirmative Action Program Section 60-300.40 Applicability of the Affirmative Action Program Requirement OFCCP proposed paragraph

(a)raised the coverage threshold to a contract of $100,000 or more. As discussed in the preamble discussion of the § 60-300.1, some comments expressed concern about the increased burden that would result if contractors are required to develop and maintain two AAPs—one under the part 60-250 and a second AAP under part 60-300. OFCCP explained that contractors subject to the final rule and the regulations in part 60-250 may develop a single AAP that addresses the requirements under parts 60-250 and 60-300. One commenter asked about the deadline for developing the AAP required under 60-300.40. Paragraph

(b)provides that a contractor must develop an AAP within 120 days of the commencement of a contract. Under the existing VEVRAA regulations, a contractor with a contract of $50,000 or more must develop a written AAP. Any contractor with a contract of $100,000 or more that was entered into on or after December 1, 2003, should already have an AAP in place that would meet the requirements of this section. The final rule adopts § 60-300.40 without change. Section 60-300.42 Invitation to Self-Identify This section is identical to § 60-250.42, except that the categories of veterans protected under the JVA are referenced in this section. In addition, the regulatory citations in this section are to provisions in the final rule. We received one comment to this section asking for clarification on the self-identification process. The process is explained in this section. Section 60-300.42 is adopted in the final rule as proposed. Section 60-300.43 Affirmative Action Policy This section is identical to § 60-250.43, except that this section specifies the categories of veterans covered under the JVA, and contains citations to provisions in the proposed rule. No comments were received on this section. Accordingly, § 60-300.43 is adopted in the final rule as proposed. Section 60-300.44 Required Contents of Affirmative Action Programs With the exception of changes necessitated by the JVA amendments, this section is identical to § 60-250.44 in the existing VEVRAA implementing regulations. The categories of veterans protected under the JVA are referenced throughout this section. In addition, consistent with the technical amendments to VEVRAA, the term “senior management” is used in paragraph (h)(2)(i), which sets out the requirement that the contractor assign responsibility for implementation of the AAP. Further, this section contains citations to provisions in the final rule. We received no comments on § 60-300.44 and it is adopted in the final rule without change. Subpart D—General Enforcement and Complaint Procedures Section 60-300.60 Compliance Evaluations This section is identical to § 60-250.60, except for the differences necessitated by the JVA. One difference is that the categories of veterans protected under the JVA are referenced in this section. The other difference is found in paragraph (c), which addresses OFCCP verification of contractor compliance with reporting requirements. Paragraph

(c)of existing § 60-250.60 provides that OFCCP may verify whether a contractor is complying with its obligation to file its Annual VETS-100 Report pursuant to the regulations in 41 CFR part 61-250. The regulations in part 61-250, which were issued by VETS, apply only to contracts entered into before December 1, 2003. Paragraph

(c)of this section provides that OFCCP may verify whether a contractor has complied with applicable reporting requirements required under regulations promulgated by VETS. OFCCP changed “any reporting requirement” from the NPRM to “applicable reporting requirements” in the final rule for clarity. This change gives OFCCP authority to investigate compliance with all applicable reporting requirements required under regulations promulgated by VETS, including any new reporting requirements that VETS may implement as a result of the JVA. We received two comments concerning the reporting requirements under VEVRAA that are administered by VETS. One commenter stated that contractor burden will increase because of the requirements to submit the VETS-100 under both parts 60-250 and 60-300. This same commenter suggested that OFCCP coordinate its final rule to any changes to the VETS-100 Report under VETS. As explained in the discussion of § 60-300.1, the VEVRAA implementing regulations administered by OFCCP contain no reporting requirements. Accordingly, contractors subject to the existing regulations in part 60-250 and the regulations in part 60-300 will not face an increase in their reporting burden under OFCCP's rule. We also received one comment concerning the relationship between OFCCP and VETS compliance evaluations. Under the current regulations in part 60-250.5, during the onsite portion of a compliance evaluation, a compliance officer confirms with the contractor that it has listed its employment openings with the local employment service office and may contact the local employment service office directly to verify that the contractor has complied with the mandatory job listing requirements. Under this final rule, OFCCP will confirm that contractors holding Government contracts subject to the JVA have listed employment openings with the appropriate employment delivery system and may contact the employment delivery system directly to verify this information. Under the current regulations in part 60-250.5, OFCCP also confirms with the contractor that it has completed a VETS-100 report during the onsite portion of a compliance evaluation. If the contractor has not completed the VETS-100 report, OFCCP will notify VETS. Under this section of the final rule, OFCCP will confirm that a contractor holding a Government contract covered by the JVA has completed any applicable VETS reporting requirements, including any new reporting requirements that VETS may implement as a result of the JVA. If the contractor has not completed any applicable reporting requirements, OFCCP will notify VETS. Section 60-300.61 Complaint Procedures This section is identical to § 60-250.61, except for the changes necessary to conform to the amendments made by the JVA. Further, the regulatory citations in this section are to sections in the final rule. In paragraph

(a)of the final rule, OFCCP is changing “state employment security agency” to “state workforce agency” to be consistent with § 300.5. Section 60-300.64 Show Cause Notices Except for the citations to provisions in the final rule, this section is identical to § 60-250.64. Section 60-300.64 is adopted in the final rule as proposed. Section 60-300.65 Enforcement Proceedings Except for the citations to provisions in the final rule, this section is identical to § 60-250.65. We received no comments to this section; it is adopted in the final rule without change. Section 60-300.66 Sanctions and Penalties Except for the citations to provisions in the final rule, this section is identical to § 60-250.66. The final rule adopts § 60-300.66 as proposed. Section 60-300.69 Intimidation and Interference This section is identical to § 60-250.69, except that this section refers to the categories of veterans protected under the JVA. Section 60-300.69 is adopted in the final rule without change. Subpart E—Ancillary Matters Section 60-300.84 Responsibilities of Appropriate Employment Service Delivery System According to VEVRAA, 38 U.S.C. Section 4212 (a)(2)(B), appropriate employment service delivery systems are required to give priority in referral to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans to employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements of the equal opportunity clause. According to Section 4212(a)(2)(c), the appropriate employment service delivery system also shall provide a list of such employment openings to States, political subdivisions of States, or any private entities or organizations under contract to carry out employment, training, and placement services under chapter 41 of title 38. OFCCP proposed § 60-300.84 was identical to current § 60-250.84. In the final rule, OFCCP has revised this section to clarify the scope of its authority over, and its interactions with, these employment delivery systems. OFCCP may contact the employment delivery systems to request information pertinent to whether the contractor is in compliance with the mandatory job listing requirements. OFCCP does not, however, have responsibility for ensuring that the appropriate employment delivery systems provide priority referral to covered veterans. Accordingly, OFCCP added the words “By statute” to the first sentence of this section to clarify that the obligation of employment delivery systems to provide veterans with priority of service arises by statute, and not because of a requirement imposed by OFCCP. Appendix A to Part 60-300—Guidelines on a Contractor's Duty To Provide Reasonable Accommodation Except for the references to the categories of veterans covered under the JVA and citations to provisions in the final rule, Appendix A to part 60-300 is substantially similar to Appendix A to part 60-250 in the existing VEVRAA regulations. We received no comments on Appendix A. Accordingly, Appendix A is adopted in the final rule without change. Appendix B to Part 60-300—Sample Invitation to Self-Identify Except for the references to the categories of veterans covered under the JVA and citations to provisions in the final rule, Appendix B to part 60-300 is substantially similar to Appendix B to part 60-250 in the existing VEVRAA regulations. We received no comments on this aspect of the proposal. The final rule adopts Appendix B as proposed in the NPRM. Appendix C to Part 60-300—Review of Personnel Processes Proposed Appendix C to part 60-300 is substantially similar to Appendix C to part 60-250 in the existing VEVRAA regulations, except for the references to the categories of veterans covered under the JVA and citations to provisions in the proposed rule. We received no comments on Appendix C. The final rule adopts Appendix C without change. Regulatory Procedures Executive Order 12866 The Department is issuing this final rule in conformance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, but is not economically significant as defined in section 3(f)(1). Therefore, the information enumerated in section 6(a)(3)(C) of the order is not required. Pursuant to Executive Order 12866, this rule has been reviewed by the Office of Management and Budget (OMB). Executive Order 13132 OFCCP has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Regulatory Flexibility Act This rule clarifies existing requirements for Federal contractors. In view of this fact and because the rule does not substantively change existing obligations for Federal contractors, the Department concludes that this rule will not have a significant economic impact on a substantial number of small entities. The Secretary has certified to the Chief Counsel for Advocacy of the Small Business Administration to this effect. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. Unfunded Mandates Reform Executive Order 12875—This rule does not create an unfunded Federal mandate upon any State, local, or tribal government. Unfunded Mandates Reform Act of 1995—This rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more. Paperwork Reduction Act The information collection requirements contained in the existing VEVRAA regulations, with the exception of those related to complaint procedures, are currently approved under OMB Control No. 1215-0072 (Recordkeeping and Reporting Requirements-Supply and Service) and OMB Control No. 1215-0163 (Construction Recordkeeping and Reporting). The information collection requirements contained in the existing complaint procedures regulation are currently approved under OMB Control No. 1215-0131. This rule adopts a new set of VEVRAA implementing regulations that incorporate the changes made by the JVA amendments, and apply to Government contracts entered on or after December 1, 2003. The JVA amended VEVRAA by increasing the contract coverage threshold, changing the categories of veterans protected under the law, and changing the manner in which the mandatory job listing requirement is to be implemented. The increase in the contract coverage threshold from $25,000 to $100,000 may result in a decrease in the number of respondents and burden hours. However, this rule does not make any changes to the currently approved information collections. Consequently, this rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 *et seq.* List of Subjects in 41 CFR Part 60-300 Administrative practice and procedure, Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Individuals with disabilities, Investigations, Reporting and recordkeeping requirements, and Veterans. Signed at Washington, DC, this 2nd day of August, 2007. Victoria A. Lipnic, Assistant Secretary for Employment Standards. Charles E. James, Sr., Deputy Assistant Secretary for Federal Contract Compliance. Accordingly, for the reasons set forth in the preamble, Chapter 60 of Title 41 of the Code of Federal Regulations is amended to read as follows: PART 60-300—AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS REGARDING DISABLED VETERANS, RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS Subpart A—Preliminary Matters, Equal Opportunity Clause Sec. 60-300.1 Purpose, applicability and construction. 60-300.2 Definitions. 60-300.3 [Reserved] 60-300.4 Coverage and waivers. 60-300.5 Equal opportunity clause. Subpart B—Discrimination Prohibited 60-300.20 Covered employment activities. 60-300.21 Prohibitions. 60-300.22 Direct threat defense. 60-300.23 Medical examinations and inquiries. 60-300.24 Drugs and alcohol. 60-300.25 Health insurance, life insurance and other benefit plans. Subpart C—Affirmative Action Program 60-300.40 Applicability of the affirmative action program requirement. 60-300.41 Availability of affirmative action program. 60-300.42 Invitation to self-identify. 60-300.43 Affirmative action policy. 60-300.44 Required contents of affirmative action programs. Subpart D—General Enforcement and Complaint Procedures 60-300.60 Compliance evaluations. 60-300.61 Complaint procedures. 60-300.62 Conciliation agreements. 60-300.63 Violation of conciliation agreements. 60-300.64 Show cause notices. 60-300.65 Enforcement proceedings. 60-300.66 Sanctions and penalties. 60-300.67 Notification of agencies. 60-300.68 Reinstatement of ineligible contractors. 60-300.69 Intimidation and interference. 60-300.70 Disputed matters related to compliance with the Act. Subpart E—Ancillary Matters 60-300.80 Recordkeeping. 60-300.81 Access to records. 60-300.82 Labor organizations and recruiting and training agencies. 60-300.83 Rulings and interpretations. 60-300.84 Responsibilities of appropriate employment service delivery system. Appendix A to Part 60-300—Guidelines on a Contractor's Duty To Provide Reasonable Accommodation Appendix B to Part 60-300—Sample Invitation To Self-Identify Appendix C to Part 60-300—Review of Personnel Processes Authority: 29 U.S.C. 793; 38 U.S.C. 4211 and 4212; E.O. 11758 (3 CFR, 1971-1975 Comp., p. 841). Subpart A—Preliminary Matters, Equal Opportunity Clause § 60-300.1 Purpose, applicability and construction.

(a)*Purpose.* The purpose of the regulations in this part is to set forth the standards for compliance with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212, or VEVRAA), which requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified covered veterans. Disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans are covered veterans under VEVRAA.

(b)*Applicability.* This part applies to any Government contract or subcontract of $100,000 or more, entered into or modified on or after December 1, 2003, for the purchase, sale or use of personal property or nonpersonal services (including construction): *Provided,* that subpart C of this part applies only as described in § 60-300.40(a). Compliance by the contractor with the provisions of this part will not necessarily determine its compliance with other statutes, and compliance with other statutes will not necessarily determine its compliance with this part. Any contractor or subcontractor whose only contract(s) for the purchase, sale or use of personal property and nonpersonal services (including construction) was entered into before December 1, 2003 (and not modified as described above) must follow part 60-250. Any contractor or subcontractor who has contracts for the purchase, sale or use of personal property and nonpersonal services (including construction) that were entered into before December 1, 2003 (and not modified as described above), and contracts that were entered into on or after December 1, 2003, must follow both parts 60-250 and 60-300.

(c)*Construction* —(1) *In general.* The Interpretive Guidance on Title I of the Americans with Disabilities Act

(ADA)(42 U.S.C. 12101, *et seq.* ) set out as an appendix to 29 CFR part 1630 issued pursuant to Title I may be relied upon for guidance in interpreting the parallel provisions of this part.

(2)*Relationship to other laws.* This part does not invalidate or limit the remedies, rights, and procedures under any Federal law or the law of any state or political subdivision that provides greater or equal protection for the rights of disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans as compared to the protection afforded by this part. It may be a defense to a charge of violation of this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part. § 60-300.2 Definitions. For the purpose of this part:

(a)*Act* means the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212.

(b)*Equal opportunity clause* means the contract provisions set forth in § 60-300.5, “Equal opportunity clause.”

(c)*Secretary* means the Secretary of Labor, United States Department of Labor, or his or her designee.

(d)*Deputy Assistant Secretary* means the Deputy Assistant Secretary for Federal Contract Compliance of the United States Department of Labor, or his or her designee.

(e)*Government* means the Government of the United States of America.

(f)*United States* , as used in this part, shall include the several States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.

(g)*Recruiting and training agency* means any person who refers workers to any contractor, or who provides or supervises apprenticeship or training for employment by any contractor.

(h)*Contract* means any Government contract or subcontract.

(i)*Government contract* means any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services (including construction). The term *Government contract* does not include agreements in which the parties stand in the relationship of employer and employee, and federally assisted contracts.

(1)*Modification* means any alteration in the terms and conditions of a contract, including supplemental agreements, amendments and extensions.

(2)*Contracting agency* means any department, agency, establishment or instrumentality of the United States, including any wholly owned Government corporation, which enters into contracts.

(3)*Person* , as used in this paragraph

(i)and paragraph

(l)of this section, means any natural person, corporation, partnership or joint venture, unincorporated association, state or local government, and any agency, instrumentality, or subdivision of such a government.

(4)*Nonpersonal services* , as used in this paragraph

(i)and paragraph

(l)of this section, includes, but is not limited to, the following: Utility, construction, transportation, research, insurance, and fund depository.

(5)*Construction* , as used in this paragraph

(i)and paragraph

(l)of this section, means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other on-site functions incidental to the actual construction.

(6)*Personal property* , as used in this paragraph

(i)and paragraph

(l)of this section, includes supplies and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements).

(j)*Contractor* means, unless otherwise indicated, a prime contractor or subcontractor holding a contract of $100,000 or more.

(k)*Prime contractor* means any person holding a contract of $100,000 or more, and, for the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,” includes any person who has held a contract subject to the Act.

(l)*Subcontract* means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee):

(1)For the purchase, sale or use of personal property or nonpersonal services (including construction) which, in whole or in part, is necessary to the performance of any one or more contracts; or

(2)Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed.

(m)*Subcontractor* means any person holding a subcontract of $100,000 or more and, for the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,” any person who has held a subcontract subject to the Act.

(n)*Disabled veteran* means:

(1)A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or

(2)A person who was discharged or released from active duty because of a service-connected disability.

(o)*Qualified disabled veteran* means a disabled veteran who has the ability to perform the essential functions of the employment position with or without reasonable accommodation.

(p)*Other protected veteran* means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.

(q)*Recently separated veteran* means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.

(r)*Armed Forces service medal veteran* means any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209).

(s)*Essential functions* —(1) *In general.* The term *essential functions* means fundamental job duties of the employment position the disabled veteran holds or desires. The term *essential functions* does not include the marginal functions of the position.

(2)A job function may be considered essential for any of several reasons, including, but not limited to, the following:

(i)The function may be essential because the reason the position exists is to perform that function;

(ii)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii)The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(3)Evidence of whether a particular function is essential includes, but is not limited to:

(i)The contractor's judgment as to which functions are essential;

(ii)Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii)The amount of time spent on the job performing the function;

(iv)The consequences of not requiring the incumbent to perform the function;

(v)The terms of a collective bargaining agreement;

(vi)The work experience of past incumbents in the job; and/or

(vii)The current work experience of incumbents in similar jobs.

(t)*Reasonable accommodation* —(1) The term *reasonable accommodation* means:

(i)Modifications or adjustments to a job application process that enable a qualified applicant who is a disabled veteran to be considered for the position such applicant desires; 1 or 1 A contractor's duty to provide a reasonable accommodation with respect to applicants who are disabled veterans is not limited to those who ultimately demonstrate that they are qualified to perform the job in issue. Disabled veteran applicants must be provided a reasonable accommodation with respect to the application process if they are qualified with respect to that process ( *e.g.* , if they present themselves at the correct location and time to fill out an application).

(ii)Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified disabled veteran to perform the essential functions of that position; or

(iii)Modifications or adjustments that enable the contractor's employee who is a disabled veteran to enjoy equal benefits and privileges of employment as are enjoyed by the contractor's other similarly situated employees who are not disabled veterans.

(2)Reasonable accommodation may include but is not limited to:

(i)Making existing facilities used by employees readily accessible to and usable by disabled veterans; and

(ii)Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for disabled veterans.

(3)To determine the appropriate reasonable accommodation it may be necessary for the contractor to initiate an informal, interactive process with the qualified disabled veteran in need of the accommodation. 2 This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. (Appendix A of this part provides guidance on a contractor's duty to provide reasonable accommodation.) 2 Contractors must engage in such an interactive process with a disabled veteran, whether or not a reasonable accommodation ultimately is identified that will make the person a qualified individual. Contractors must engage in the interactive process because, until they have done so, they may be unable to determine whether a reasonable accommodation exists that will result in the person being qualified.

(u)*Undue hardship* —(1) *In general. Undue hardship* means, with respect to the provision of an accommodation, significant difficulty or expense incurred by the contractor, when considered in light of the factors set forth in paragraph (u)(2) of this section.

(2)*Factors to be considered* . In determining whether an accommodation would impose an undue hardship on the contractor, factors to be considered include:

(i)The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding;

(ii)The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;

(iii)The overall financial resources of the contractor, the overall size of the business of the contractor with respect to the number of its employees, and the number, type and location of its facilities;

(iv)The type of operation or operations of the contractor, including the composition, structure and functions of the work force of such contractor, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the contractor; and

(v)The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

(v)*Qualification standards* means the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by the contractor as requirements which an individual must meet in order to be eligible for the position held or desired.

(w)*Direct threat* means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that a disabled veteran poses a *direct threat* shall be based on an individualized assessment of the individual's present ability to perform safely the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(1)The duration of the risk;

(2)The nature and severity of the potential harm;

(3)The likelihood that the potential harm will occur; and

(4)The imminence of the potential harm.

(x)*Compliance evaluation* means any one or combination of actions OFCCP may take to examine a Federal contractor's or subcontractor's compliance with one or more of the requirements of the Vietnam Era Veterans' Readjustment Assistance Act.

(y)*Employment service delivery system* means a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act.

(z)*Veteran* means a person who served in the active military, naval, or air service of the United States, and who was discharged or released therefrom under conditions other than dishonorable. § 60-300.3 [Reserved] § 60-300.4 Coverage and waivers.

(a)*General* —(1) *Contracts and subcontracts of $100,000 or more* . Contracts and subcontracts of $100,000 or more are covered by this part. No contracting agency or contractor shall procure supplies or services in less than usual quantities to avoid the applicability of the equal opportunity clause.

(2)*Contracts for indefinite quantities* . With respect to indefinite delivery-type contracts (including, but not limited to, open end contracts, requirement-type contracts, Federal Supply Schedule contracts, “call-type” contracts, and purchase notice agreements), the equal opportunity clause shall be included unless the contracting agency has reason to believe that the amount to be ordered in any year under such contract will be less than $100,000. The applicability of the equal opportunity clause shall be determined at the time of award for the first year, and annually thereafter for succeeding years, if any. Notwithstanding the above, the equal opportunity clause shall be applied to such contract whenever the amount of a single order is $100,000 or more. Once the equal opportunity clause is determined to be applicable, the contract shall continue to be subject to such clause for its duration, regardless of the amounts ordered, or reasonably expected to be ordered in any year.

(3)*Employment activities within the United States.* This part applies only to employment activities within the United States and not to employment activities abroad. The term “employment activities within the United States” includes actual employment within the United States, and decisions of the contractor made within the United States pertaining to the contractor's applicants and employees who are within the United States, regarding employment opportunities abroad (such as recruiting and hiring within the United States for employment abroad, or transfer of persons employed in the United States to contractor establishments abroad).

(4)*Contracts with state or local governments.* The requirements of the equal opportunity clause in any contract or subcontract with a state or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract.

(b)*Waivers* —(1) *Specific contracts and classes of contracts* . The Deputy Assistant Secretary may waive the application to any contract of the equal opportunity clause in whole or part when he or she deems that special circumstances in the national interest so require. The Deputy Assistant Secretary may also grant such waivers to groups or categories of contracts: where it is in the national interest; where it is found impracticable to act upon each request individually; and where such waiver will substantially contribute to convenience in administration of the Act. When a waiver has been granted for any class of contracts, the Deputy Assistant Secretary may withdraw the waiver for a specific contract or group of contracts to be awarded, when in his or her judgment such action is necessary or appropriate to achieve the purposes of the Act. The withdrawal shall not apply to contracts awarded prior to the withdrawal, except that in procurements entered into by formal advertising, or the various forms of restricted formal advertising, such withdrawal shall not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of the bids.

(2)*National security* . Any requirement set forth in the regulations of this part shall not apply to any contract whenever the head of the contracting agency determines that such contract is essential to the national security and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the head of the contracting agency will notify the Deputy Assistant Secretary in writing within 30 days.

(3)*Facilities not connected with contracts* . The Deputy Assistant Secretary may waive the requirements of the equal opportunity clause with respect to any of a contractor's facilities which he or she finds to be in all respects separate and distinct from activities of the contractor related to the performance of the contract, provided that he or she also finds that such a waiver will not interfere with or impede the effectuation of the Act. Such waivers shall be considered only upon the request of the contractor. § 60-300.5 Equal opportunity clause.

(a)*Government contracts* . Each contracting agency and each contractor shall include the following equal opportunity clause in each of its covered Government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract): EQUAL OPPORTUNITY FOR DISABLED VETERANS, RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS 1. The contractor will not discriminate against any employee or applicant for employment because he or she is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran in regard to any position for which the employee or applicant for employment is qualified. The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran in all employment practices, including the following: i. Recruitment, advertising, and job application procedures; ii. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring; iii. Rates of pay or any other form of compensation and changes in compensation; iv. Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists; v. Leaves of absence, sick leave, or any other leave; vi. Fringe benefits available by virtue of employment, whether or not administered by the contractor; vii. Selection and financial support for training, including apprenticeship, and on-the-job training under 38 U.S.C. 3687, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training; viii. Activities sponsored by the contractor including social or recreational programs; and ix. Any other term, condition, or privilege of employment. 2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one where the contract is being performed, but excluding those of independently operated corporate affiliates, with the appropriate employment service delivery system where the opening occurs. Listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system. 3. Listing of employment openings with the appropriate employment service delivery system pursuant to this clause shall be made at least concurrently with the use of any other recruitment source or effort and shall involve the normal obligations which attach to the placing of a *bona fide* job order, including the acceptance of referrals of veterans and nonveterans. The listing of employment openings does not require the hiring of any particular job applicants or from any particular group of job applicants, and nothing herein is intended to relieve the contractor from any requirements in Executive orders or regulations regarding nondiscrimination in employment. 4. Whenever a contractor, other than a state or local governmental contractor, becomes contractually bound to the listing provisions in paragraphs 2 and 3 of this clause, it shall advise the state workforce agency in each state where it has establishments of the name and location of each hiring location in the state. As long as the contractor is contractually bound to these provisions and has so advised the state agency, there is no need to advise the state agency of subsequent contracts. The contractor may advise the state agency when it is no longer bound by this contract clause. 5. The provisions of paragraphs 2 and 3 of this clause do not apply to the listing of employment openings which occur and are filled outside of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, Wake Island, and the Trust Territories of the Pacific Islands. 6. As used in this clause: i. *All employment openings* includes all positions except executive and senior management, those positions that will be filled from within the contractor's organization, and positions lasting three days or less. This term includes full-time employment, temporary employment of more than three days' duration, and part-time employment. ii. *Executive and senior management* means:

(1)Any employee

(a)compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities;

(b)whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

(c)who customarily and regularly directs the work of two or more other employees; and

(d)who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight; or

(2)any employee who owns at least a bona fide 20-percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management. iii. *Positions that will be filled from within the contractor's organization* means employment openings for which no consideration will be given to persons outside the contractor's organization (including any affiliates, subsidiaries, and parent companies) and includes any openings which the contractor proposes to fill from regularly established “recall” lists. The exception does not apply to a particular opening once an employer decides to consider applicants outside of his or her own organization. 7. The contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. 8. In the event of the contractor's noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. 9. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the Deputy Assistant Secretary for Federal Contract Compliance, provided by or through the contracting officer. Such notices shall state the rights of applicants and employees as well as the contractor's obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants who are disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans. The contractor must ensure that applicants or employees who are disabled veterans are informed of the contents of the notice ( *e.g.* , the contractor may have the notice read to a visually disabled individual, or may lower the posted notice so that it might be read by a person in a wheelchair). 10. The contractor will notify each labor organization or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the contractor is bound by the terms of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, and is committed to take affirmative action to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans. 11. The contractor will include the provisions of this clause in every subcontract or purchase order of $100,000 or more, unless exempted by the rules, regulations, or orders of the Secretary issued pursuant to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Deputy Assistant Secretary for Federal Contract Compliance may direct to enforce such provisions, including action for noncompliance. [End of Clause]

(b)*Subcontracts* . Each contractor shall include the equal opportunity clause in each of its subcontracts subject to this part.

(c)*Adaption of language* . Such necessary changes in language may be made to the equal opportunity clause as shall be appropriate to identify properly the parties and their undertakings.

(d)*Inclusion of the equal opportunity clause in the contract.* It is not necessary that the equal opportunity clause be quoted verbatim in the contract. The clause may be made a part of the contract by citation to 41 CFR 60-300.5(a).

(e)*Incorporation by operation of the Act.* By operation of the Act, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the Act and the regulations in this part to include such a clause, whether or not it is physically incorporated in such contract and whether or not there is a written contract between the agency and the contractor.

(f)*Duties of contracting agencies.* Each contracting agency shall cooperate with the Deputy Assistant Secretary and the Secretary in the performance of their responsibilities under the Act. Such cooperation shall include insuring that the equal opportunity clause is included in all covered Government contracts and that contractors are fully informed of their obligations under the Act and this part, providing the Deputy Assistant Secretary with any information which comes to the agency's attention that a contractor is not in compliance with the Act or this part, responding to requests for information from the Deputy Assistant Secretary, and taking such actions for noncompliance as are set forth in § 60-300.66 as may be ordered by the Secretary or the Deputy Assistant Secretary. Subpart B—Discrimination Prohibited § 60-300.20 Covered employment activities. The prohibition against discrimination in this part applies to the following employment activities:

(a)Recruitment, advertising, and job application procedures;

(b)Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

(c)Rates of pay or any other form of compensation and changes in compensation;

(d)Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

(e)Leaves of absence, sick leave, or any other leave;

(f)Fringe benefits available by virtue of employment, whether or not administered by the contractor;

(g)Selection and financial support for training, including, apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;

(h)Activities sponsored by the contractor including social and recreational programs; and

(i)Any other term, condition, or privilege of employment. § 60-300.21 Prohibitions. The term *discrimination* includes, but is not limited to, the acts described in this section and § 60-300.23.

(a)*Disparate treatment* . It is unlawful for the contractor to deny an employment opportunity or benefit or otherwise to discriminate against a qualified individual because of that individual's status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran.

(b)*Limiting, segregating and classifying* . Unless otherwise permitted by this part, it is unlawful for the contractor to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of that individual's status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran. For example, the contractor may not segregate qualified disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans into separate work areas or into separate lines of advancement.

(c)*Contractual or other arrangements* —(1) *In general.* It is unlawful for the contractor to participate in a contractual or other arrangement or relationship that has the effect of subjecting the contractor's own qualified applicant or employee who is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran to the discrimination prohibited by this part.

(2)*Contractual or other arrangement defined* . The phrase “contractual or other arrangement or relationship” includes, but is not limited to, a relationship with: an employment or referral agency; a labor organization, including a collective bargaining agreement; an organization providing fringe benefits to an employee of the contractor; or an organization providing training and apprenticeship programs.

(3)*Application* . This paragraph

(c)applies to the contractor, with respect to its own applicants or employees, whether the contractor offered the contract or initiated the relationship, or whether the contractor accepted the contract or acceded to the relationship. The contractor is not liable for the actions of the other party or parties to the contract which only affect that other party's employees or applicants.

(d)*Standards, criteria or methods of administration.* It is unlawful for the contractor to use standards, criteria, or methods of administration, that are not job-related and consistent with business necessity, and that:

(1)Have the effect of discriminating on the basis of status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran; or

(2)Perpetuate the discrimination of others who are subject to common administrative control.

(e)*Relationship or association with a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran.* It is unlawful for the contractor to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran status of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

(f)*Not making reasonable accommodation.*

(1)It is unlawful for the contractor to fail to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee who is a disabled veteran, unless such contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

(2)It is unlawful for the contractor to deny employment opportunities to an otherwise qualified job applicant or employee who is a disabled veteran based on the need of such contractor to make reasonable accommodation to such an individual's physical or mental impairments.

(3)A qualified disabled veteran is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified disabled veteran.

(g)*Qualification standards, tests and other selection criteria* —(1) *In general* . It is unlawful for the contractor to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals on the basis of their status as disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans unless the standard, test or other selection criterion, as used by the contractor, is shown to be job-related for the position in question and is consistent with business necessity. Selection criteria that concern an essential function may not be used to exclude a disabled veteran if that individual could satisfy the criteria with provision of a reasonable accommodation. Selection criteria that exclude or tend to exclude individuals on the basis of their status as disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans but concern only marginal functions of the job would not be consistent with business necessity. The contractor may not refuse to hire an applicant who is a disabled veteran because the applicant's disability prevents him or her from performing marginal functions. When considering a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran for an employment opportunity, the contractor may not rely on portions of such veteran's military record, including his or her discharge papers, which are not relevant to the qualification requirements of the opportunity in issue.

(2)The Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3, do not apply to 38 U.S.C. 4212 and are similarly inapplicable to this part.

(h)*Administration of tests.* It is unlawful for the contractor to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who is a disabled veteran with a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant, except where such skills are the factors that the test purports to measure.

(i)*Compensation.* In offering employment or promotions to disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans, it is unlawful for the contractor to reduce the amount of compensation offered because of any income based upon a disability-related and/or military-service-related pension or other disability-related and/or military-service-related benefit the applicant or employee receives from another source. § 60-300.22 Direct threat defense. The contractor may use as a qualification standard the requirement that an individual be able to perform the essential functions of the position held or desired without posing a direct threat to the health or safety of the individual or others in the workplace. (See § 60-300.2(w) defining *direct threat.* ) § 60-300.23 Medical examinations and inquiries.

(a)*Prohibited medical examinations or inquiries.* Except as stated in paragraphs

(b)and

(c)of this section, it is unlawful for the contractor to require a medical examination of an applicant or employee or to make inquiries as to whether an applicant or employee is a disabled veteran or as to the nature or severity of such a veteran's disability.

(b)*Permitted medical examinations and inquiries* —(1) *Acceptable pre-employment inquiry.* The contractor may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.

(2)*Employment entrance examination.* The contractor may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of their status as a disabled veteran.

(3)*Examination of employees.* The contractor may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. The contractor may make inquiries into the ability of an employee to perform job-related functions.

(4)*Other acceptable examinations and inquiries.* The contractor may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site.

(5)Medical examinations conducted in accordance with paragraphs (b)(2) and (b)(4) of this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an applicant or applicants or an employee or employees who are disabled veterans as a result of such examinations or inquiries, the contractor must demonstrate that the exclusionary criteria are job-related and consistent with business necessity, and that performance of the essential job functions cannot be accomplished with reasonable accommodations as required in this part.

(c)*Invitation to self-identify.* The contractor shall invite applicants to self-identify as being covered by the Act, as specified in § 60-300.42.

(d)*Confidentiality and use of medical information.*

(1)Information obtained under this section regarding the medical condition or history of any applicant or employee shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except that:

(i)Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations;

(ii)First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii)Government officials engaged in enforcing the laws administered by OFCCP, including this part, or enforcing the Americans with Disabilities Act, shall be provided relevant information on request.

(2)Information obtained under this section regarding the medical condition or history of any applicant or employee shall not be used for any purpose inconsistent with this part. § 60-300.24 Drugs and alcohol.

(a)*Specific activities permitted.* The contractor:

(1)May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

(2)May require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;

(3)May require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 *et seq.* );

(4)May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the contractor holds its other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism;

(5)May require that its employees employed in an industry subject to such regulations comply with the standards established in the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies regarding alcohol and the illegal use of drugs; and

(6)May require that employees employed in sensitive positions comply with the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, and other Federal agencies that apply to employment in sensitive positions subject to such regulations.

(b)*Drug testing* —(1) *General policy.* For purposes of this part, a test to determine the illegal use of drugs is not considered a medical examination. Thus, the administration of such drug tests by the contractor to its job applicants or employees is not a violation of § 60-300.23. Nothing in this part shall be construed to encourage, prohibit, or authorize the contractor to conduct drug tests of job applicants or employees to determine the illegal use of drugs or to make employment decisions based on such test results.

(2)*Transportation employees.* Nothing in this part shall be construed to encourage, prohibit, or authorize the otherwise lawful exercise by contractors subject to the jurisdiction of the Department of Transportation of authority to test employees in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs or for on-duty impairment by alcohol; and remove from safety-sensitive positions persons who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this section.

(3)Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of §§ 60-300.23(b)(5) and 60-300.23(d)(2). § 60-300.25 Health insurance, life insurance and other benefit plans.

(a)An insurer, hospital, or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with state law.

(b)The contractor may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law.

(c)The contractor may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that is not subject to state laws that regulate insurance.

(d)The contractor may not deny a qualified disabled veteran equal access to insurance or subject a qualified disabled veteran to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks.

(e)The activities described in paragraphs (a),

(b)and

(c)of this section are permitted unless these activities are used as a subterfuge to evade the purposes of this part. Subpart C—Affirmative Action Program § 60-300.40 Applicability of the affirmative action program requirement.

(a)The requirements of this subpart apply to every Government contractor that has 50 or more employees and a contract of $100,000 or more.

(b)Contractors described in paragraph

(a)of this section shall, within 120 days of the commencement of a contract, prepare and maintain an affirmative action program at each establishment. The affirmative action program shall set forth the contractor's policies and procedures in accordance with this part. This program may be integrated into or kept separate from other affirmative action programs.

(c)The affirmative action program shall be reviewed and updated annually.

(d)The contractor shall submit the affirmative action program within 30 days of a request from OFCCP, unless the request provides for a different time. The contractor also shall make the affirmative action program promptly available on-site upon OFCCP's request. § 60-300.41 Availability of affirmative action program. The full affirmative action program shall be available to any employee or applicant for employment for inspection upon request. The location and hours during which the program may be obtained shall be posted at each establishment. § 60-300.42 Invitation to self-identify.

(a)*Disabled veterans.* The contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is a disabled veteran who may be covered by the Act and wishes to benefit under the affirmative action program. Such invitation shall be extended after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, except that the contractor may invite disabled veterans to self-identify prior to making a job offer when:

(1)The invitation is made when the contractor actually is undertaking affirmative action for disabled veterans at the pre-offer stage; or

(2)The invitation is made pursuant to a Federal, state or local law requiring affirmative action for disabled veterans.

(b)*Recently separated veterans, other protected veterans, and Armed Forces service medal veterans.* The contractor shall invite applicants to inform the contractor whether the applicant believes that he or she is a recently separated veteran, other protected veteran, or Armed Forces service medal veteran who may be covered by the Act and wishes to benefit under the affirmative action program. Such invitation may be made at any time before the applicant begins his or her employment duties.

(c)The invitations referenced in paragraphs

(a)and

(b)of this section shall state that a request to benefit under the affirmative action program may be made immediately and/or at any time in the future. The invitations also shall summarize the relevant portions of the Act and the contractor's affirmative action program. Furthermore, the invitations shall state that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the Act. (An acceptable form for such an invitation is set forth in Appendix B of this part. Because a contractor usually may not seek advice from a disabled veteran regarding placement and accommodation until after a job offer has been extended, the invitation set forth in Appendix B of this part contains instructions regarding modifications to be made if it is used at the pre-offer stage.)

(d)If an applicant so identifies himself or herself as a disabled veteran, the contractor should also seek the advice of the applicant regarding proper placement and appropriate accommodation, after a job offer has been extended. The contractor also may make such inquiries to the extent they are consistent with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, ( *e.g.* , in the context of asking applicants to describe or demonstrate how they would perform the job). The contractor shall maintain a separate file in accordance with § 60-300.23(d) on persons who have self-identified as disabled veterans.

(e)The contractor shall keep all information on self identification confidential. The contractor shall provide the information to OFCCP upon request. This information may be used only in accordance with this part.

(f)Nothing in this section shall relieve the contractor of its obligation to take affirmative action with respect to those applicants or employees who are known to the contractor to be disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans.

(g)Nothing in this section shall relieve the contractor from liability for discrimination under the Act. § 60-300.43 Affirmative action policy. Under the affirmative action obligations imposed by the Act contractors shall not discriminate because of status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran and shall take affirmative action to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans at all levels of employment, including the executive level. Such action shall apply to all employment activities set forth in § 60-300.20. § 60-300.44 Required contents of affirmative action programs. Acceptable affirmative action programs shall contain, but not necessarily be limited to, the following ingredients:

(a)*Policy statement.* The contractor shall include an equal opportunity policy statement in its affirmative action program, and shall post the policy statement on company bulletin boards. The contractor must ensure that applicants and employees who are disabled veterans are informed of the contents of the policy statement (for example, the contractor may have the statement read to a visually disabled individual, or may lower the posted notice so that it may be read by a person in a wheelchair). The policy statement should indicate the chief executive officer's attitude on the subject matter, provide for an audit and reporting system (see paragraph

(h)of this section) and assign overall responsibility for the implementation of affirmative action activities required under this part (see paragraph

(i)of this section). Additionally, the policy should state, among other things, that the contractor will: recruit, hire, train and promote persons in all job titles, and ensure that all other personnel actions are administered, without regard to disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran status; and ensure that all employment decisions are based only on valid job requirements. The policy shall state that employees and applicants shall not be subjected to harassment, intimidation, threats, coercion or discrimination because they have engaged in or may engage in any of the following activities:

(1)Filing a complaint;

(2)Assisting or participating in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA) or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans;

(3)Opposing any act or practice made unlawful by VEVRAA or its implementing regulations in this part or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans; or

(4)Exercising any other right protected by VEVRAA or its implementing regulations in this part.

(b)*Review of personnel processes.* The contractor shall ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees who are known disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. The contractor shall ensure that when a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran is considered for employment opportunities, the contractor relies only on that portion of the individual's military record, including his or her discharge papers, that is relevant to the requirements of the opportunity in issue. The contractor shall ensure that its personnel processes do not stereotype disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans in a manner which limits their access to all jobs for which they are qualified. The contractor shall periodically review such processes and make any necessary modifications to ensure that these obligations are carried out. A description of the review and any necessary modifications to personnel processes or development of new processes shall be included in any affirmative action programs required under this part. The contractor must design procedures that facilitate a review of the implementation of this requirement by the contractor and the Government. (Appendix C of this part is an example of an appropriate set of procedures. The procedures in Appendix C of this part are not required and contractors may develop other procedures appropriate to their circumstances.)

(c)*Physical and mental qualifications.*

(1)The contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the periodic review of all physical and mental job qualification standards to ensure that, to the extent qualification standards tend to screen out qualified disabled veterans, they are job-related for the position in question and are consistent with business necessity.

(2)Whenever the contractor applies physical or mental qualification standards in the selection of applicants or employees for employment or other change in employment status such as promotion, demotion or training, to the extent that qualification standards tend to screen out qualified disabled veterans, the standards shall be related to the specific job or jobs for which the individual is being considered and consistent with business necessity. The contractor shall have the burden to demonstrate that it has complied with the requirements of this paragraph (c)(2).

(3)The contractor may use as a defense to an allegation of a violation of paragraph (c)(2) of this section that an individual poses a direct threat to the health or safety of the individual or others in the workplace. (See § 60-300.2(w) defining direct threat.)

(d)*Reasonable accommodation to physical and mental limitations.* As is provided in § 60-300.21(f), as a matter of nondiscrimination the contractor must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled veteran unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As a matter of affirmative action, if an employee who is known to be a disabled veteran is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee's disability; if the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.

(e)*Harassment.* The contractor must develop and implement procedures to ensure that its employees are not harassed because of their status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran.

(f)*External dissemination of policy, outreach and positive recruitment.* The contractor shall undertake appropriate outreach and positive recruitment activities such as those listed in paragraphs (f)(1) through (f)(8) of this section that are reasonably designed to effectively recruit qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraphs (f)(1) through (f)(8) of this section or that its activities will be limited to those listed. The scope of the contractor's efforts shall depend upon all the circumstances, including the contractor's size and resources and the extent to which existing employment practices are adequate.

(1)The contractor should enlist the assistance and support of the following persons and organizations in recruiting, and developing on-the-job training opportunities for, qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans, to fulfill its commitment to provide meaningful employment opportunities to such veterans:

(i)The Local Veterans' Employment Representative in the local employment service office nearest the contractor's establishment;

(ii)The Department of Veterans Affairs Regional Office nearest the contractor's establishment;

(iii)The veterans' counselors and coordinators (“Vet-Reps”) on college campuses;

(iv)The service officers of the national veterans' groups active in the area of the contractor's establishment; and

(v)Local veterans' groups and veterans' service centers near the contractor's establishment.

(2)Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources. Plant tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company's selection process, and recruiting literature should be an integral part of the briefing. Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants.

(3)The contractor's recruitment efforts at all educational institutions should incorporate special efforts to reach students who are disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans. An effort should be made to participate in work-study programs with Department of Veterans Affairs rehabilitation facilities which specialize in training or educating disabled veterans.

(4)The contractor should establish meaningful contacts with appropriate veterans' service organizations which serve disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans for such purposes as advice, technical assistance, and referral of potential employees. Technical assistance from the resources described in this paragraph may consist of advice on proper placement, recruitment, training and accommodations contractors may undertake, but no such resource providing technical assistance shall have authority to approve or disapprove the acceptability of affirmative action programs.

(5)Disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans should be made available for participation in career days, youth motivation programs, and related activities in their communities.

(6)The contractor should send written notification of company policy to all subcontractors, vendors and suppliers, requesting appropriate action on their part.

(7)The contractor should take positive steps to attract qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans not currently in the work force who have requisite skills and can be recruited through affirmative action measures. These persons may be located through the local chapters of organizations of and for disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans.

(8)The contractor, in making hiring decisions, should consider applicants who are known disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable.

(g)*Internal dissemination of policy.*

(1)A strong outreach program will be ineffective without adequate internal support from supervisory and management personnel and other employees. In order to assure greater employee cooperation and participation in the contractor's efforts, the contractor shall develop internal procedures such as those listed in paragraph (g)(2) of this section for communication of its obligation to engage in affirmative action efforts to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans. It is not contemplated that the contractor will necessarily undertake all the activities listed in paragraph (g)(2) of this section or that its activities will be limited to those listed. These procedures shall be designed to foster understanding, acceptance and support among the contractor's executive, management, supervisory and other employees and to encourage such persons to take the necessary actions to aid the contractor in meeting this obligation. The scope of the contractor's efforts shall depend upon all the circumstances, including the contractor's size and resources and the extent to which existing practices are adequate.

(2)The contractor should implement and disseminate this policy internally as follows:

(i)Include it in the contractor's policy manual;

(ii)Inform all employees and prospective employees of its commitment to engage in affirmative action to increase employment opportunities for qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans. The contractor should periodically schedule special meetings with all employees to discuss policy and explain individual employee responsibilities;

(iii)Publicize it in the company newspaper, magazine, annual report and other media;

(iv)Conduct special meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation, making clear the chief executive officer's attitude;

(v)Discuss the policy thoroughly in both employee orientation and management training programs;

(vi)Meet with union officials and/or employee representatives to inform them of the contractor's policy, and request their cooperation;

(vii)Include articles on accomplishments of disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans in company publications; and

(viii)When employees are featured in employee handbooks or similar publications for employees, include disabled veterans.

(h)*Audit and reporting system.*

(1)The contractor shall design and implement an audit and reporting system that will:

(i)Measure the effectiveness of the contractor's affirmative action program;

(ii)Indicate any need for remedial action;

(iii)Determine the degree to which the contractor's objectives have been attained;

(iv)Determine whether known disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans have had the opportunity to participate in all company sponsored educational, training, recreational and social activities; and

(v)Measure the contractor's compliance with the affirmative action program's specific obligations.

(2)Where the affirmative action program is found to be deficient, the contractor shall undertake necessary action to bring the program into compliance.

(i)*Responsibility for implementation.* An official of the contractor shall be assigned responsibility for implementation of the contractor's affirmative action activities under this part. His or her identity should appear on all internal and external communications regarding the company's affirmative action program. This official shall be given necessary senior management support and staff to manage the implementation of this program.

(j)*Training.* All personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained to ensure that the commitments in the contractor's affirmative action program are implemented. Subpart D—General Enforcement and Complaint Procedures § 60-300.60 Compliance evaluations.

(a)OFCCP may conduct compliance evaluations to determine if the contractor is taking affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based on their status as a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran in all employment practices. A compliance evaluation may consist of any one or any combination of the following investigative procedures:

(1)*Compliance review.* A comprehensive analysis and evaluation of the hiring and employment practices of the contractor, the written affirmative action program, and the results of the affirmative action efforts undertaken by the contractor. A compliance review may proceed in three stages:

(i)A desk audit of the written affirmative action program and supporting documentation to determine whether all elements required by the regulations in this part are included, whether the affirmative action program meets agency standards of reasonableness, and whether the affirmative action program and supporting documentation satisfy agency standards of acceptability. The desk audit is conducted at OFCCP offices;

(ii)An on-site review, conducted at the contractor's establishment to investigate unresolved problem areas identified in the affirmative action program and supporting documentation during the desk audit, to verify that the contractor has implemented the affirmative action program and has complied with those regulatory obligations not required to be included in the affirmative action program, and to examine potential instances or issues of discrimination. An on-site review normally will involve an examination of the contractor's personnel and employment policies, inspection and copying of documents related to employment actions, and interviews with employees, supervisors, managers, hiring officials; and

(iii)Where necessary, an off-site analysis of information supplied by the contractor or otherwise gathered during or pursuant to the on-site review;

(2)*Off-site review of records.* An analysis and evaluation of the affirmative action program (or any part thereof) and supporting documentation, and other documents related to the contractor's personnel policies and employment actions that may be relevant to a determination of whether the contractor has complied with the requirements of the Executive Order and regulations;

(3)*Compliance check.* A determination of whether the contractor has maintained records consistent with § 60-300.80; at the contractor's option the documents may be provided either on-site or off-site; or

(4)*Focused review.* An on-site review restricted to one or more components of the contractor's organization or one or more aspects of the contractor's employment practices.

(b)Where deficiencies are found to exist, reasonable efforts shall be made to secure compliance through conciliation and persuasion pursuant to § 60-300.62.

(c)*Reporting Requirements.* During a compliance evaluation, OFCCP may verify whether the contractor has complied with applicable reporting requirements required under regulations promulgated by the Veterans' Employment and Training Service (VETS). If the contractor has not complied with any such reporting requirement, OFCCP will notify VETS. § 60-300.61 Complaint procedures.

(a)*Place and time of filing.* Any applicant for employment with a contractor or any employee of a contractor may, personally, or by an authorized representative, file a written complaint alleging a violation of the Act or the regulations in this part. The complaint may allege individual or class-wide violation(s). Such complaint must be filed within 300 days of the date of the alleged violation, unless the time for filing is extended by OFCCP for good cause shown. Complaints may be submitted to the OFCCP, 200 Constitution Avenue, NW., Washington, DC 20210, or to any OFCCP regional, district, or area office. Complaints may also be submitted to the Veterans' Employment and Training Service of the Department of Labor directly, or through the Local Veterans' Employment Representative

(LVER)at the local employment service office. Such parties will assist veterans in preparing complaints, promptly refer such complaints to OFCCP, and maintain a record of all complaints which they receive and forward. OFCCP shall inform the party forwarding the complaint of the progress and results of its complaint investigation. The state workforce agency shall cooperate with the Deputy Assistant Secretary in the investigation of any complaint.

(b)*Contents of complaints* —(1) *In general.* A complaint must be signed by the complainant or his or her authorized representative and must contain the following information:

(i)Name and address (including telephone number) of the complainant;

(ii)Name and address of the contractor who committed the alleged violation;

(iii)Documentation showing that the individual is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran. Such documentation must include a copy of the veteran's form DD-214, and, where applicable, a copy of the veteran's Benefits Award Letter, or similar Department of Veterans Affairs certification, updated within one year prior to the date the complaint is filed;

(iv)A description of the act or acts considered to be a violation, including the pertinent dates (in the case of an alleged continuing violation, the earliest and most recent date that the alleged violation occurred should be stated); and

(v)Other pertinent information available which will assist in the investigation and resolution of the complaint, including the name of any known Federal agency with which the employer has contracted.

(2)*Third party complaints.* A complaint filed by an authorized representative need not identify by name the person on whose behalf it is filed. The person filing the complaint, however, shall provide OFCCP with the name, address and telephone number of the person on whose behalf it is made, and the other information specified in paragraph (b)(1) of this section. OFCCP shall verify the authorization of such a complaint by the person on whose behalf the complaint is made. Any such person may request that OFCCP keep his or her identity confidential, and OFCCP will protect the individual's confidentiality wherever that is possible given the facts and circumstances in the complaint.

(c)*Incomplete information.* Where a complaint contains incomplete information, OFCCP shall seek the needed information from the complainant. If the information is not furnished to OFCCP within 60 days of the date of such request, the case may be closed.

(d)*Investigations.* The Department of Labor shall institute a prompt investigation of each complaint.

(e)*Resolution of matters.*

(1)If the complaint investigation finds no violation of the Act or this part, or if the Deputy Assistant Secretary decides not to refer the matter to the Solicitor of Labor for enforcement proceedings against the contractor pursuant to § 60-300.65(a)(1), the complainant and contractor shall be so notified. The Deputy Assistant Secretary, on his or her own initiative, may reconsider his or her determination or the determination of any of his or her designated officers who have authority to issue Notifications of Results of Investigation.

(2)The Deputy Assistant Secretary will review all determinations of no violation that involve complaints that are not also cognizable under Title I of the Americans with Disabilities Act.

(3)In cases where the Deputy Assistant Secretary decides to reconsider the determination of a Notification of Results of Investigation, the Deputy Assistant Secretary shall provide prompt notification of his or her intent to reconsider, which is effective upon issuance, and his or her final determination after reconsideration, to the person claiming to be aggrieved, the person making the complaint on behalf of such person, if any, and the contractor.

(4)If the investigation finds a violation of the Act or this part, OFCCP shall invite the contractor to participate in conciliation discussions pursuant to § 60-300.62. § 60-300.62 Conciliation agreements. If a compliance evaluation, complaint investigation or other review by OFCCP finds a material violation of the Act or this part, and if the contractor is willing to correct the violations and/or deficiencies, and if OFCCP determines that settlement on that basis (rather than referral for consideration of formal enforcement) is appropriate, a written conciliation agreement shall be required. The agreement shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies noted, including, where appropriate (but not necessarily limited to) such make whole remedies as back pay and retroactive seniority. The agreement shall also specify the time period for completion of the remedial action; the period shall be no longer than the minimum period necessary to complete the action. § 60-300.63 Violation of conciliation agreements.

(a)When OFCCP believes that a conciliation agreement has been violated, the following procedures are applicable:

(1)A written notice shall be sent to the contractor setting forth the violation alleged and summarizing the supporting evidence. The contractor shall have 15 days from receipt of the notice to respond, except in those cases in which OFCCP asserts that such a delay would result in irreparable injury to the employment rights of affected employees or applicants.

(2)During the 15-day period the contractor may demonstrate in writing that it has not violated its commitments.

(b)In those cases in which OFCCP asserts that a delay would result in irreparable injury to the employment rights of affected employees or applicants, enforcement proceedings may be initiated immediately without proceeding through any other requirement contained in this chapter.

(c)In any proceedings involving an alleged violation of a conciliation agreement OFCCP may seek enforcement of the agreement itself and shall not be required to present proof of the underlying violations resolved by the agreement. § 60-300.64 Show cause notices. When the Deputy Assistant Secretary has reasonable cause to believe that the contractor has violated the Act or this part, he or she may issue a notice requiring the contractor to show cause, within 30 days, why monitoring, enforcement proceedings or other appropriate action to ensure compliance should not be instituted. The issuance of such a notice is not a prerequisite to instituting enforcement proceedings (see § 60-300.65). § 60-300.65 Enforcement proceedings.

(a)*General.*

(1)If a compliance evaluation, complaint investigation or other review by OFCCP finds a violation of the Act or this part, and the violation has not been corrected in accordance with the conciliation procedures in this part, or OFCCP determines that referral for consideration of formal enforcement (rather than settlement) is appropriate, OFCCP may refer the matter to the Solicitor of Labor with a recommendation for the institution of enforcement proceedings to enjoin the violations, to seek appropriate relief, and to impose appropriate sanctions, or any of the above in this sentence. OFCCP may seek back pay and other make whole relief for aggrieved individuals identified during a complaint investigation or compliance evaluation. Such individuals need not have filed a complaint as a prerequisite to OFCCP seeking such relief on their behalf. Interest on back pay shall be calculated from the date of the loss and compounded quarterly at the percentage rate established by the Internal Revenue Service for the underpayment of taxes.

(2)In addition to the administrative proceedings set forth in this section, the Deputy Assistant Secretary may, within the limitations of applicable law, seek appropriate judicial action to enforce the contractual provisions set forth in § 60-300.5, including appropriate injunctive relief.

(b)*Hearing practice and procedure.*

(1)In administrative enforcement proceedings the contractor shall be provided an opportunity for a formal hearing. All hearings conducted under the Act and this part shall be governed by the Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity Under Executive Order 11246 contained in 41 CFR part 60-30 and the Rules of Evidence set out in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges contained in 29 CFR part 18, subpart B: *Provided,* That a final administrative order shall be issued within one year from the date of the issuance of the recommended findings, conclusions and decision of the Administrative Law Judge, or the submission of exceptions and responses to exceptions to such decision (if any), whichever is later.

(2)Complaints may be filed by the Solicitor, the Associate Solicitor for Civil Rights and Labor-Management, Regional Solicitors, and Associate Regional Solicitors.

(3)For the purposes of hearings pursuant to this part, references in 41 CFR part 60-30 to “Executive Order 11246” shall mean the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended; to “equal opportunity clause” shall mean the equal opportunity clause published at § 60-300.5; and to “regulations” shall mean the regulations contained in this part. § 60-300.66 Sanctions and penalties.

(a)*Withholding progress payments.* With the prior approval of the Deputy Assistant Secretary, so much of the accrued payment due on the contract or any other contract between the Government contractor and the Federal Government may be withheld as necessary to correct any violations of the provisions of the Act or this part.

(b)*Termination.* A contract may be canceled or terminated, in whole or in part, for failure to comply with the provisions of the Act or this part.

(c)*Debarment.* A contractor may be debarred from receiving future contracts for failure to comply with the provisions of the Act or this part subject to reinstatement pursuant to § 60-300.68. Debarment may be imposed for an indefinite period, or may be imposed for a fixed period of not less than six months but no more than three years.

(d)*Hearing opportunity.* An opportunity for a formal hearing shall be afforded to a contractor before the imposition of any sanction or penalty. § 60-300.67 Notification of agencies. The Deputy Assistant Secretary shall ensure that the heads of all agencies are notified of any debarments taken against any contractor. § 60-300.68 Reinstatement of ineligible contractors.

(a)*Application for reinstatement.* A contractor debarred from further contracts for an indefinite period under the Act may request reinstatement in a letter filed with the Deputy Assistant Secretary at any time after the effective date of the debarment; a contractor debarred for a fixed period may make such a request following the expiration of six months from the effective date of the debarment. In connection with the reinstatement proceedings, all debarred contractors shall be required to show that they have established and will carry out employment policies and practices in compliance with the Act and this part. Additionally, in determining whether reinstatement is appropriate for a contractor debarred for a fixed period, the Deputy Assistant Secretary also shall consider, among other factors, the severity of the violation which resulted in the debarment, the contractor's attitude towards compliance, the contractor's past compliance history, and whether the contractor's reinstatement would impede the effective enforcement of the Act or this part. Before reaching a decision, the Deputy Assistant Secretary may conduct a compliance evaluation of the contractor and may require the contractor to supply additional information regarding the request for reinstatement. The Deputy Assistant Secretary shall issue a written decision on the request.

(b)*Petition for review.* Within 30 days of its receipt of a decision denying a request for reinstatement, the contractor may file a petition for review of the decision with the Secretary. The petition shall set forth the grounds for the contractor's objections to the Deputy Assistant Secretary's decision. The petition shall be served on the Deputy Assistant Secretary and the Associate Solicitor for Civil Rights and Labor-Management and shall include the decision as an appendix. The Deputy Assistant Secretary may file a response within 14 days to the petition. The Secretary shall issue the final agency decision denying or granting the request for reinstatement. Before reaching a final decision, the Secretary may issue such additional orders respecting procedure as he or she finds appropriate in the circumstances, including an order referring the matter to the Office of Administrative Law Judges for an evidentiary hearing where there is a material factual dispute that cannot be resolved on the record before the Secretary. § 60-300.69 Intimidation and interference.

(a)The contractor shall not harass, intimidate, threaten, coerce, or discriminate against any individual because the individual has engaged in or may engage in any of the following activities:

(1)Filing a complaint;

(2)Assisting or participating in any manner in an investigation, compliance evaluation, hearing, or any other activity related to the administration of the Act or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans;

(3)Opposing any act or practice made unlawful by the Act or this part or any other Federal, state or local law requiring equal opportunity for disabled veterans, recently separated veterans, other protected veterans, or Armed Forces service medal veterans, or

(4)Exercising any other right protected by the Act or this part.

(b)The contractor shall ensure that all persons under its control do not engage in such harassment, intimidation, threats, coercion or discrimination. The sanctions and penalties contained in this part may be exercised by the Deputy Assistant Secretary against any contractor who violates this obligation. § 60-300.70 Disputed matters related to compliance with the Act. The procedures set forth in the regulations in this part govern all disputes relative to the contractor's compliance with the Act and this part. Any disputes relating to issues other than compliance, including contract costs arising out of the contractor's efforts to comply, shall be determined by the disputes clause of the contract. Subpart E—Ancillary Matters § 60-300.80 Recordkeeping.

(a)*General requirements.* Any personnel or employment record made or kept by the contractor shall be preserved by the contractor for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later. However, if the contractor has fewer than 150 employees or does not have a Government contract of at least $150,000, the minimum record retention period shall be one year from the date of the making of the record or the personnel action involved, whichever occurs later. Such records include, but are not necessarily limited to, records relating to requests for reasonable accommodation; the results of any physical examination; job advertisements and postings; applications and resumes; tests and test results; interview notes; and other records having to do with hiring, assignment, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of two years from the date of the termination, except that contractors that have fewer than 150 employees or that do not have a Government contract of at least $150,000 shall keep such records for a period of one year from the date of the termination. Where the contractor has received notice that a complaint of discrimination has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor shall preserve all personnel records relevant to the complaint, compliance evaluation or action until final disposition of the complaint, compliance evaluation or action. The term *personnel records relevant to the complaint, compliance evaluation or action* would include, for example, personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person, and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected.

(b)*Failure to preserve records.* Failure to preserve complete and accurate records as required by paragraph

(a)of this section constitutes noncompliance with the contractor's obligations under the Act and this part. Where the contractor has destroyed or failed to preserve records as required by this section, there may be a presumption that the information destroyed or not preserved would have been unfavorable to the contractor: *Provided,* That this presumption shall not apply where the contractor shows that the destruction or failure to preserve records results from circumstances that are outside of the contractor's control.

(c)The requirements of this section shall apply only to records made or kept on or after the date that the Office of Management and Budget has cleared the requirements. § 60-300.81 Access to records. Each contractor shall permit access during normal business hours to its places of business for the purpose of conducting on-site compliance evaluations and complaint investigations and inspecting and copying such books and accounts and records, including computerized records, and other material as may be relevant to the matter under investigation and pertinent to compliance with the Act or this part. Information obtained in this manner shall be used only in connection with the administration of the Act and in furtherance of the purposes of the Act. § 60-300.82 Labor organizations and recruiting and training agencies.

(a)Whenever performance in accordance with the equal opportunity clause or any matter contained in the regulations in this part may necessitate a revision of a collective bargaining agreement, the labor organizations which are parties to such agreement shall be given an adequate opportunity to present their views to OFCCP.

(b)OFCCP shall use its best efforts, directly or through contractors, subcontractors, local officials, the Department of Veterans Affairs, vocational rehabilitation facilities, and all other available instrumentalities, to cause any labor organization, recruiting and training agency or other representative of workers who are employed by a contractor to cooperate with, and to assist in, the implementation of the purposes of the Act. § 60-300.83 Rulings and interpretations. Rulings under or interpretations of the Act and this part shall be made by the Deputy Assistant Secretary. § 60-300.84 Responsibilities of appropriate employment service delivery system. By statute, appropriate employment service delivery systems are required to refer qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans to fill employment openings listed by contractors with such appropriate employment delivery systems pursuant to the mandatory job listing requirements of the equal opportunity clause and are required to give priority to disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans in making such referrals. The employment service delivery systems shall provide OFCCP, upon request, information pertinent to whether the contractor is in compliance with the mandatory job listing requirements of the equal opportunity clause. Appendix A to Part 60-300—Guidelines on a Contractor's Duty To Provide Reasonable Accommodation The guidelines in this appendix are in large part derived from, and are consistent with, the discussion regarding the duty to provide reasonable accommodation contained in the Interpretive Guidance on Title I of the Americans with Disabilities Act

(ADA)set out as an appendix to the regulations issued by the Equal Employment Opportunity Commission

(EEOC)implementing the ADA (29 CFR part 1630). Although the following discussion is intended to provide an independent “free-standing” source of guidance with respect to the duty to provide reasonable accommodation under this part, to the extent that the EEOC appendix provides additional guidance which is consistent with the following discussion, it may be relied upon for purposes of this part as well. *See* § 60-300.1(c). Contractors are obligated to provide reasonable accommodation and to take affirmative action. Reasonable accommodation under VEVRAA, like reasonable accommodation required under Section 503 and the ADA, is a part of the nondiscrimination obligation. *See* EEOC appendix cited in this paragraph. Affirmative action is unique to VEVRAA and Section 503, and includes actions above and beyond those required as a matter of nondiscrimination. An example of this is the requirement discussed in paragraph 2 of this appendix that a contractor shall make an inquiry of a disabled veteran who is having significant difficulty performing his or her job. 1. A contractor is required to make reasonable accommodations to the known physical or mental limitations of an “otherwise qualified” disabled veteran, unless the contractor can demonstrate that the accommodation would impose an undue hardship on the operation of its business. As stated in § 60-300.2(o), a disabled veteran is qualified if he or she has the ability to perform the essential functions of the position with or without reasonable accommodation. A contractor is required to make a reasonable accommodation with respect to its application process if the disabled veteran is qualified with respect to that process. One is “otherwise qualified” if he or she is qualified for a job, except that, because of a disability, he or she needs a reasonable accommodation to be able to perform the job's essential functions. 2. Although the contractor would not be expected to accommodate disabilities of which it is unaware, the contractor has an affirmative obligation to provide a reasonable accommodation for applicants and employees who are known to be disabled veterans. As stated in § 60-300.42(a) (see also Appendix B of this part), the contractor is required to invite applicants who have been provided an offer of employment, before they are placed on the contractor's payroll, to indicate whether they are a disabled veteran who may be covered by the Act and wish to benefit under the contractor's affirmative action program. Section 60-300.42(d) further provides that the contractor should seek the advice of disabled veterans who “self-identify” in this way as to proper placement and appropriate accommodation. Moreover, § 60-300.44(d) provides that if an employee who is a known disabled veteran is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the disability, the contractor is required to confidentially inquire whether the problem is disability related and if the employee is in need of a reasonable accommodation. 3. An accommodation is any change in the work environment or in the way things are customarily done that enables a disabled veteran to enjoy equal employment opportunities. Equal employment opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability. Thus, for example, an accommodation made to assist an employee who is a disabled veteran in the performance of his or her job must be adequate to enable the individual to perform the essential functions of the position. The accommodation, however, does not have to be the “best” accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated. There are three areas in which reasonable accommodations may be necessary:

(1)Accommodations in the application process;

(2)accommodations that enable employees who are disabled veterans to perform the essential functions of the position held or desired; and

(3)accommodations that enable employees who are disabled veterans to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities. 4. The term “undue hardship” refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the contractor's business. The contractor's claim that the cost of a particular accommodation will impose an undue hardship requires a determination of which financial resources should be considered—those of the contractor in its entirety or only those of the facility that will be required to provide the accommodation. This inquiry requires an analysis of the financial relationship between the contractor and the facility in order to determine what resources will be available to the facility in providing the accommodation. If the contractor can show that the cost of the accommodation would impose an undue hardship, it would still be required to provide the accommodation if the funding is available from another source, *e.g.* , the Department of Veterans Affairs or a state vocational rehabilitation agency, or if Federal, state or local tax deductions or tax credits are available to offset the cost of the accommodation. In the absence of such funding, the disabled veteran should be given the option of providing the accommodation or of paying that portion of the cost which constitutes the undue hardship on the operation of the business. 5. Section 60-300.2(t) lists a number of examples of the most common types of accommodations that the contractor may be required to provide. There are any number of specific accommodations that may be appropriate for particular situations. The discussion in this appendix is not intended to provide an exhaustive list of required accommodations (as no such list would be feasible); rather, it is intended to provide general guidance regarding the nature of the obligation. The decision as to whether a reasonable accommodation is appropriate must be made on a case-by-case basis. The contractor generally should consult with the disabled veteran in deciding on the appropriate accommodation; frequently, the individual will know exactly what accommodation he or she will need to perform successfully in a particular job, and may suggest an accommodation which is simpler and less expensive than the accommodation the contractor might have devised. Other resources to consult include the appropriate state vocational rehabilitation services agency, the Equal Employment Opportunity Commission (1-800-669-4000 (voice), 1-800-669-6820 (TTY)), the Job Accommodation Network

(JAN)operated by the Office of Disability Employment Policy in the U.S. Department of Labor (1-800-526-7234 or 1-800-232-9675), private disability organizations (including those that serve veterans), and other employers. 6. With respect to accommodations that can permit an employee who is a disabled veteran to perform essential functions successfully, a reasonable accommodation may require the contractor to, for instance, modify or acquire equipment. For the visually-impaired such accommodations may include providing adaptive hardware and software for computers, electronic visual aids, braille devices, talking calculators, magnifiers, audio recordings and braille or large-print materials. For persons with hearing impairments, reasonable accommodations may include providing telephone handset amplifiers, telephones compatible with hearing aids and telecommunications devices for the deaf (TDDs). For persons with limited physical dexterity, the obligation may require the provision of goose neck telephone headsets, mechanical page turners and raised or lowered furniture. 7. Other reasonable accommodations of this type may include providing personal assistants such as a reader, interpreter or travel attendant, permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. The contractor may also be required to make existing facilities readily accessible to and usable by disabled veterans—including areas used by employees for purposes other than the performance of essential job functions such as restrooms, break rooms, cafeterias, lounges, auditoriums, libraries, parking lots and credit unions. This type of accommodation will enable employees to enjoy equal benefits and privileges of employment as are enjoyed by employees who do not have disabilities. 8. Another of the potential accommodations listed in § 60-300.2(t) is job restructuring. This may involve reallocating or redistributing those nonessential, marginal job functions which a qualified disabled veteran cannot perform to another position. Accordingly, if a clerical employee who is a disabled veteran is occasionally required to lift heavy boxes containing files, but cannot do so because of a disability, this task may be reassigned to another employee. The contractor, however, is not required to reallocate essential functions, i.e., those functions that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For instance, the contractor which has a security guard position which requires the incumbent to inspect identity cards would not have to provide a blind disabled veteran with an assistant to perform that duty; in such a case, the assistant would be performing an essential function of the job for the disabled veteran. Job restructuring may also involve allowing part-time or modified work schedules. For instance, flexible or adjusted work schedules could benefit disabled veterans who cannot work a standard schedule because of the need to obtain medical treatment, or disabled veterans with mobility impairments who depend on a public transportation system that is not accessible during the hours of a standard schedule. 9. Reasonable accommodation may also include reassignment to a vacant position. In general, reassignment should be considered only when accommodation within the disabled veteran's current position would pose an undue hardship. Reassignment is not required for applicants. However, in making hiring decisions, contractors are encouraged to consider applicants who are known disabled veterans for all available positions for which they may be qualified when the position(s) applied for is unavailable. Reassignment may not be used to limit, segregate, or otherwise discriminate against employees who are disabled veterans by forcing reassignments to undesirable positions or to designated offices or facilities. Employers should reassign the individual to an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time. A “reasonable amount of time” should be determined in light of the totality of the circumstances. 10. The contractor may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation. The contractor may maintain the reassigned disabled veteran at the salary of the higher graded position, and must do so if it maintains the salary of reassigned employees who are not disabled veterans. It should also be noted that the contractor is not required to promote a disabled veteran as an accommodation. 11. With respect to the application process, appropriate accommodations may include the following:

(1)Providing information regarding job vacancies in a form accessible to disabled veterans who are vision or hearing impaired, e.g., by making an announcement available in braille, in large print, or on audio tape, or by responding to job inquiries via TDDs;

(2)providing readers, interpreters and other similar assistance during the application, testing and interview process;

(3)appropriately adjusting or modifying employment-related examinations, e.g., extending regular time deadlines, allowing a disabled veteran who is blind or has a learning disorder such as dyslexia to provide oral answers for a written test, and permitting an applicant, regardless of the nature of his or her ability, to demonstrate skills through alternative techniques and utilization of adapted tools, aids and devices; and

(4)ensuring a disabled veteran with a mobility impairment full access to testing locations such that the applicant's test scores accurately reflect the applicant's skills or aptitude rather than the applicant's mobility impairment. Appendix B to Part 60-300—Sample Invitation to Self-identify Note: When the invitation to self-identify is being extended to disabled veterans prior to an offer of employment, as is permitted in limited circumstances under §§ 60-300.42(a)(1) and (2), paragraph 7(ii) of this appendix, relating to identification of reasonable accommodations, should be omitted. This will avoid a conflict with the EEOC's ADA Guidance, which in most cases precludes asking a job applicant (prior to a job offer being made) about potential reasonable accommodations. [Sample Invitation to Self-Identify] 1. This employer is a Government contractor subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, which requires Government contractors to take affirmative action to employ and advance in employment qualified disabled veterans, recently separated veterans, other protected veterans, and Armed Forces service medal veterans. 2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION TO RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS ONLY.] If you are a recently separated veteran, other protected veteran, or Armed Forces service medal veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. The term “recently separated veteran” refers to any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty. The term “other protected veteran” refers to a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense. The term “Armed Forces service medal veteran” refers to a person who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (62 FR 1209). [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION TO DISABLED VETERANS ONLY.] If you are a disabled veteran, we would like to include you in our affirmative action program. If you would like to be included under the affirmative action program, please tell us. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. The term “disabled veteran” refers to a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary, or was discharged or released from active duty because of a service-connected disability. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING AN INVITATION TO DISABLED VETERANS AS WELL AS RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS.] If you are a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. [The contractor should include here the definitions of “disabled veteran,” “recently separated veteran,” “other protected veteran,” and “Armed Forces service medal veteran” found in the two preceding paragraphs.] 3. You may inform us of your desire to benefit under the program at this time and/or at any time in the future. 4. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. 5. The information you submit will be kept confidential, except that

(i)supervisors and managers may be informed regarding restrictions on the work or duties of disabled veterans, and regarding necessary accommodations;

(ii)first aid and safety personnel may be informed, when and to the extent appropriate, if you have a condition that might require emergency treatment; and

(iii)Government officials engaged in enforcing laws administered by OFCCP, or enforcing the Americans with Disabilities Act, may be informed. 6. [The contractor should here insert a brief provision summarizing the relevant portion of its affirmative action program.] 7. [THE FOLLOWING TEXT SHOULD BE USED ONLY WHEN EXTENDING AN INVITATION TO DISABLED VETERANS, EITHER BY THEMSELVES OR IN COMBINATION WITH RECENTLY SEPARATED VETERANS, OTHER PROTECTED VETERANS, AND ARMED FORCES SERVICE MEDAL VETERANS. PARAGRAPH 7(II) SHOULD BE OMITTED WHEN THE INVITATION TO SELF-IDENTIFY IS BEING EXTENDED PRIOR TO AN OFFER OF EMPLOYMENT.] If you are a disabled veteran it would assist us if you tell us about

(i)any special methods, skills, and procedures which qualify you for positions that you might not otherwise be able to do because of your disability so that you will be considered for any positions of that kind, and

(ii)the accommodations which we could make which would enable you to perform the job properly and safely, including special equipment, changes in the physical layout of the job, elimination of certain duties relating to the job, provision of personal assistance services or other accommodations. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. Appendix C to Part 60-300—Review of Personnel Processes The following is a set of procedures which contractors may use to meet the requirements of § 60-300.44(b): 1. The application or personnel form of each known applicant who is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran should be annotated to identify each vacancy for which the applicant was considered, and the form should be quickly retrievable for review by the Department of Labor and the contractor's personnel officials for use in investigations and internal compliance activities. 2. The personnel or application records of each known disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran should include

(i)the identification of each promotion for which the covered veteran was considered, and

(ii)the identification of each training program for which the covered veteran was considered. 3. In each case where an employee or applicant who is a disabled veteran, recently separated veteran, other protected veteran, or Armed Forces service medal veteran is rejected for employment, promotion, or training, the contractor should prepare a statement of the reason as well as a description of the accommodations considered (for a rejected disabled veteran). The statement of the reason for rejection (if the reason is medically related), and the description of the accommodations considered, should be treated as confidential medical records in accordance with § 60-300.23(d). These materials should be available to the applicant or employee concerned upon request. 4. Where applicants or employees are selected for hire, promotion, or training and the contractor undertakes any accommodation which makes it possible for him or her to place a disabled veteran on the job, the contractor should make a record containing a description of the accommodation. The record should be treated as a confidential medical record in accordance with § 60-300.23(d). [FR Doc. E7-15385 Filed 8-7-07; 8:45 am] BILLING CODE 4510-CM-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket No. FEMA-7985] Suspension of Community Eligibility AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency

(FEMA)receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the **Federal Register** on a subsequent date. EFFECTIVE DATES: The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables. ADDRESSES: If you want to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office. FOR FURTHER INFORMATION CONTACT: David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-2953. SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 *et seq.* ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the **Federal Register** . In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified. Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days. *National Environmental Policy Act* . This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared. *Regulatory Flexibility Act* . The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place. *Regulatory Classification* . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism* . This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform* . This rule meets the applicable standards of Executive Order 12988. *Paperwork Reduction Act* . This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* List of Subjects in 44 CFR Part 64 Flood insurance, Floodplains. Accordingly, 44 CFR part 64 is amended as follows: PART 64—[AMENDED] 1. The authority citation for part 64 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376. § 64.6 [Amended] 2. The tables published under the authority of § 64.6 are amended as follows: State and location Community No. Effective date authorization/cancellation of sale of flood insurance in community Current Effective map date Date Certain Federal assistance no longer available in SFHAs Region II New York: Auburn, City of, Cayuga County 360102 February 16, 1973, Emerg, March 2, 1981, Reg, August 2, 2007, Susp Aug. 2, 2007 Aug. 2, 2007. Aurelius, Town of, Cayuga County 360103 April 17, 1974, Emerg, November 4, 1983, Reg, August 2, 2007, Susp ......do * ...... Do. Aurora, Village of, Cayuga County 360101 January 17, 1975, Emerg, April 15, 1980, Reg, August 2, 2007, Susp ......do...... Do. Cayuga, Village of, Cayuga County 360107 July 23, 1973, Emerg, July 5, 1977, Reg, August 2, 2007, Susp ......do...... Do. Conquest, Town of, Cayuga County 360108 June 24, 1977, Emerg, April 4, 1983, Reg, August 2, 2007, Susp ......do...... Do. Fair Haven, Village of, Cayuga County 360109 April 20, 1973, Emerg, February 1, 1978, Reg, August 2, 2007, Susp ......do...... Do. Genoa, Town of, Cayuga County 360111 February 1, 1977, Emerg, November 4, 1983, Reg, August 2, 2007, Susp ......do...... Do. Ira, Town of, Cayuga County 360112 March 17, 1976, Emerg, February 6, 1984, Reg, August 2, 2007, Susp ......do...... Do. Ledyard, Town of, Cayuga County 360113 September 15, 1975, Emerg, February 6, 1984, Reg, August 2, 2007, Susp ......do...... Do. Locke, Town of, Cayuga County 360114 April 4, 1975, Emerg, November 4, 1983, Reg, August 2, 2007, Susp ......do...... Do. Mentz, Town of, Cayuga County 360115 April 18, 1973, Emerg, July 17, 1978, Reg, August 2, 2007, Susp ......do...... Do. Montezuma, Town of, Cayuga County 360116 August 8, 1975, Emerg, April 18, 1983, Reg, August 2, 2007, Susp ......do...... Do. Moravia, Town of, Cayuga County 360117 May 27, 1977, Emerg, June 19, 1985, Reg, August 2, 2007, Susp ......do...... Do. Niles, Town of, Cayuga County 360119 July 21, 1975, Emerg, February 6, 1984, Reg, August 2, 2007, Susp ......do...... Do. Owasco, Town of, Cayuga County 360120 April 2, 1976, Emerg, February 6, 1984, Reg, August 2, 2007, Susp ......do...... Do. Sennett, Town of, Cayuga County 360124 May 23, 1977, Emerg, June 22, 1979, Reg, August 2, 2007, Susp ......do...... Do. Summer Hill, Town of, Cayuga County 360127 July 24, 1975, Emerg, November 4, 1983, Reg, August 2, 2007, Susp ......do...... Do. Throop, Town of, Cayuga County 360128 August 21, 1975, Emerg, August 3, 1979, Reg, August 2, 2007, Susp ......do...... Do. Victory, Town of, Cayuga County 360131 January 3, 1977, Emerg, February 6, 1984, Reg, August 2, 2007, Susp ......do...... Do. Region IV Alabama: Eldridge, City of, Walker County 010382 November 7, 2006, Emerg; Reg, August 2, 2007, Susp ......do...... Do. Tennessee: Shelbyville, Town of, Bedford County 470008 February 8, 1974, Emerg, February 17, 1988, Reg, August 2, 2007, Susp ......do...... Do. Wartrace, Town of, Bedford County 470009 May 20, 1987, Emerg, September 1, 1987, Reg, August 2, 2007, Susp ......do...... Do. Region V Illinois: Breese, City of, Clinton County 170046 February 3, 1976, Emerg, February 2, 1984, Reg, August 2, 2007, Susp ......do...... Do. Carlyle, City of, Clinton County 170047 September 8, 1975, Emerg, September 4, 1985, Reg, August 2, 2007, Susp ......do...... Do. Centralia, City of, Clinton County 170453 July 2, 1975, Emerg, December 18, 1984, Reg, August 2, 2007, Susp ......do...... Do. Clark County, Unincorporated Areas 170940 September 23, 1985, Emerg, November 4, 1988, Reg, August 2, 2007, Susp ......do...... Do. Clinton County, Unincorporated Areas 170044 June 10, 1977, Emerg, May 1, 1987, Reg, August 2, 2007, Susp ......do...... Do. Divernon, Village of, Sangamon County 170949 October 25, 1983, Emerg, May 15, 1984, Reg, August 2, 2007, Susp ......do...... Do. Thayer, Village of, Sangamon County 170804 November 25, 1975, Emerg, May 3, 1982, Reg, August 2, 2007, Susp ......do...... Do. Indiana: Bargersville, Town of, Johnson County 180112 July 6, 1976, Emerg, July 21, 1978, Reg, August 2, 2007, Susp ......do...... Do. Edinburgh, Town of, Johnson County 180113 February 13, 1975, Emerg, September 16, 1981, Reg, August 2, 2007, Susp ......do...... Do. Franklin, City of, Johnson County 180114 January 20, 1975, Emerg, April 1, 1981, Reg, August 2, 2007, Susp ......do...... Do. Greenwood, City of, Johnson County 180115 May 19, 1975, Emerg, May 17, 1982, Reg, August 2, 2007, Susp ......do...... Do. Johnson County, Unincorporated Areas 180111 July 24, 1975, Emerg, March 2, 1989, Reg, August 2, 2007, Susp ......do...... Do. New Whiteland, Town of, Johnson County 180116 September 30, 1975, Emerg, August 16, 1982, Reg, August 2, 2007, Susp ......do...... Do. Princes Lake, Town of, Johnson County 180117 March 17, 1975, Emerg, September 16, 1981, Reg, August 2, 2007, Susp ......do...... Do. *-do- =Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension. Dated: July 26, 2007. David I. Maurstad, Assistant Administrator, Mitigation, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E7-15425 Filed 8-7-07; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 03-151; FCC 07-97] Amendment of the Commission's Rules Regarding AM Directional Antennas AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Commission issued this document in order to resolve a conflict between the requirements of the rules regarding what corrective actions an AM broadcast station licensee must take when experiencing difficulties in the operation of a station's AM directional antenna. DATES: Effective September 7, 2007. FOR FURTHER INFORMATION CONTACT: Karen Kosar, *Karen.Kosar@fcc.gov* of the Media Bureau, Policy Division,

(202)418-2120 or Charles Miller, *Charles.Miller@fcc.gov* of the Media Bureau, Audio Division,

(202)418-2700. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order (Order)* , FCC 07-97, adopted on May 22, 2007 and released on May 25, 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). Paperwork Reduction Act This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burdens for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Summary of the Report and Order I. Introduction 1. This *Report and Order (“Order”)* is issued to resolve a conflict between the requirements of §§ 73.62 and 73.1350(d)(2) of the Commission's rules regarding what corrective actions an AM broadcast station licensee must take when encountering certain difficulties in the operation of a station's AM directional antenna. Specifically, we consider the proposed amendments as set forth in FCC 03-160 of the *Notice of Proposed Rulemaking* (“NPRM”) 68 FR 44273, July 28, 2003, issued in the above-captioned proceeding and the comments filed in response thereto; see *In the Matter of §§ 73.62 and 73.1350 of the Commission's Rules,* 18 FCC Rcd 13570

(2003)(“NPRM”). A list of parties filing comments and reply comments is set forth in Appendix A. II. Discussion 2. Each of the rules at issue is invoked when an AM broadcast station's directional antenna operating parameters and/or monitoring point field strengths exceed operating tolerances. The operating parameters of an AM directional antenna are the relative amplitudes and phases of the currents in the individual towers of the array. Stations that use directional antennas are required to have an FCC authorized antenna monitor to measure the operating parameters. Each AM station using a directional antenna must take field strength measurements at the monitoring point locations specified in the instrument of authorization, as often as necessary to ensure that fields at those points do not exceed the values specified in the station authorization. According to the Commission's current version of the rules, §§ 73.62 and 73.1350(d)(2) require different courses of action when an AM station's directional monitoring parameters exceed the required operating tolerances. Section 73.62 of the rules, specifically addressing directional antenna system tolerances, requires that whenever the operating parameters of a directional antenna cannot be maintained within the tolerances specified in the rule, an AM licensee has 24 hours within which to identify any excessive monitoring point field strengths followed by three additional hours to take corrective action. In contrast, § 73.1350(d)(2) of the rules, which addresses transmission system operation, requires that, in the event of any condition of antenna parameters or monitoring points out of tolerance, station operation be terminated within three minutes unless power is reduced sufficiently to eliminate any excess radiation. The *NPRM* proposed amendments to both sections of the rules in order to resolve any conflict by clearly delineating situations that require 24 hour, three-hour and/or three-minute responses by AM licensees experiencing directional antenna out-of-tolerance operation. The *NPRM* stated that clarity in the Commission's rules is especially critical when the rules may require that broadcast operations terminate within a matter of minutes. Moreover, when broadcast operations cease and programming is disrupted, broadcast listeners, in some cases, may be deprived of critical information regarding hazardous weather and other emergency conditions. Broadcast licensees also may be faced with fines and forfeitures when found to be out of compliance with Commission rules. It is therefore essential that the rules governing licensee compliance be unambiguous. 3. The *NPRM* tentatively concluded that § 73.1350(d)(2) of the rules requiring termination of broadcast operation in three minutes was excessively stringent and was not intended to apply to instances of minor out-of-tolerance AM directional antenna operating parameters. It proposed that a requirement to terminate operation in three minutes should apply only to catastrophic events that are likely to cause significant disruption to the operation of other stations or that pose a threat to life or property. It also proposed that a requirement to terminate operation within three hours should apply to instances of out-of-tolerance operation that are likely to result in minor interference to other stations. The *NPRM* tentatively concluded that in the case of minor variances of operating parameters caused by environmental changes, the provision of § 73.62 which allows 24 hours to determine the existence of an out-of-tolerance condition for an AM directional antenna system is reasonable. The *NPRM* also tentatively concluded that the language currently included in § 73.1350(d) that specifically addresses AM directional antenna systems should be relocated to § 73.62 because that section of the rules applies only to AM licensees, while § 73.1350 applies equally to AM, FM and TV licensees. 4. The commenters participating in this proceeding generally support the substantive amendments proposed by the Commission in the *NPRM* . Womble Carlyle Sandridge & Rice, PLLC (“WCSR”) state that there is a clear conflict between the two rules and the proposed amendments will provide AM licensees with unambiguous guidance regarding appropriate conduct involving cases of AM directional antenna out-of-tolerance operation. The National Association of Broadcasters (“NAB”) states that it strongly supports the Commission's proposal that the three-minute rule should not apply to instances of minor-out-of-tolerance AM directional operating parameters and that the abbreviated time frame should apply only when operation poses significant disruption to another licensee or poses a threat to life or property. Likewise, NAB supports the three-hour rule for operations likely to result in minor interference to other licensees and a 24-hour time period to determine minor operating variances caused by environmental changes. 5. While Mullaney Engineering, Inc. (“MEI”) states that it fully supports the amendments proposed in the *NPRM* , it claims that there are two areas of ambiguity that remain regarding the proposals and the actions that AM licensees are required to take when confronted with AM directional out-of-tolerance conditions. First, MEI states that clarification is needed regarding the proposed version of § 73.62 and the language used to determine whether the three-minute or 24-hour/three-hour time frame applies in a given situation. According to MEI, the issue arises when trying to determine whether the out-of- tolerance condition results in operation *substantially at variance* from the authorized radiation pattern or whether the out-of-tolerance condition consists of only *minor variations* from the required tolerances. The proposed version of § 73.62(b) states that “ [i]n the event of a failure of system components, improper pattern switching or any other event that results in operation substantially at variance from the radiation pattern specified in the instrument of authorization for the pertinent time of day, operation must be terminated within three minutes unless power can be reduced sufficiently to eliminate any excessive radiation.” The proposed version of § 73.62(c) states that “ [i]n the event of minor variations of directional antenna operating parameters from the tolerances specified in paragraph

(a)of this section, the following procedures will apply: (1)-(4).” MEI states that neither the proposed amendments nor the text of the *NPRM* provide any clear definition of what is to be considered “ *substantially at variance* ” or what is meant by “ *minor variations* .” MEI points out that the *NPRM* states that a requirement to terminate operation in three minutes should apply only to catastrophic events that are likely to cause significant disruption to the operation of other stations or that pose a threat to life or property. With regard to the three-hour criteria, MEI observes that the *NPRM* states that a requirement to terminate operation during this time frame should apply to instances of out-of-tolerance operation that are likely to result in interference to other stations. According to MEI, however, these statements in the *NPRM* do not provide any objective basis for making the requisite distinctions as to whether the out-of-tolerance condition would be substantial or minor. MEI maintains that it is imperative that these phrases be defined because the former triggers the three-minute requirement, while the latter would only invoke the 24-hour/three-hour rule. Without further guidance from the Commission, MEI asserts that it is left to broadcast licensees to determine whether an incident is to be considered substantial or minor, which may leave licensees open to fines or forfeitures if their judgment differs from that of a Commission field inspector. 6. MEI suggests that a possible solution might be to set a multiple of the tolerances (offering three to five times as an example), which if exceeded, would trigger the three minute time frame for responding to out-of-tolerance conditions. MEI also proposes that rather than requiring a complete termination of operation in response to a substantial variation in tolerances, an alternative response might be to require reduction of power to 25 percent of the authorized value, pending a check of the monitor point field strengths within a 24-hour period. MEI notes that this course of action would only be appropriate if there were no complaints of interference. MEI asserts that the Commission routinely grants short-term operation under Special Temporary Authority (“STA”) at 25 percent of authorized power, absent interference complaints, without regard to whether or not this maintains the radiated field strength within authorized limits in any given azimuth. According to MEI, especially if large excursions from authorized parameters are the result of extremes in environmental conditions, the public interest is better served by maintaining some level of on-air capability rather than requiring the affected station to completely shut down. 7. MEI further asserts that a second area in which ambiguity exists is when the out-of-tolerance condition of directional antenna operation parameters is relatively short lived, i.e., only a few hours or less. MEI argues that it is possible in such a case that the antenna operating parameters may return to within tolerance before the monitoring point field strengths can be checked. MEI requests further guidance in this area because checking monitoring point readings under such conditions may be a waste of time because engineers would be checking those readings for antenna parameters that are within required limits and would not be checking the original out-of-tolerance state. 8. The purpose of §§ 73.62 and 73.1350 of the Commission's rules is to instruct AM broadcast licensees employing directional antennas as to what corrective action to take when monitoring parameters exceed required operating tolerances and in what amount of time that action must be taken. Section 73.62 of the rules is narrowly aimed at directional system tolerances and requires that action must be taken when directional operating parameters exceed the +/−5 percent current and +/−3 degree phase tolerances required by the rules, or when any monitoring point field strength exceeds the value specified on the station license. Section 73.1350 of the rules regarding transmission system operation is more general in its coverage and can affect FM and TV licensees, as well as AM licensees. Section 73.62 provides a more liberal amount of time to determine and address issues specific to AM directional antennas (27 hours), as compared to § 73.1350 (three minutes). 9. We believe that the adoption of the proposed substantive amendments to §§ 73.62 and 73.1350 of the Commission's rules has been supported by the record in this proceeding. We agree with MEI that it is necessary to delineate the difference between minor variations of operating parameters and operation substantially at variance from the license. We believe that the proposal offered by MEI on this issue has merit and we adopt the following definition to be added to § 73.62 of the rules: Any variation of operating parameters by more than +/−15 percent sample current ratio or +/−10 degrees in phase, any monitor point that exceeds 125 percent of the licensed limit, or any operation at variance from the license that results in complaints of interference shall be considered operation substantially at variance from the license and will require immediate corrective action, i.e., action within the three minute time frame for responding to substantially variant out-of-tolerance conditions, or within three minutes of a bona fide complaint if the variation does not exceed the foregoing limits. In the absence of interference complaints, lesser variances shall be considered minor variations in operating parameters subject to the corrective actions called for in § 73.62 of the Commission's rules. 10. The Commission's rules already provide for reduction of operating power to eliminate excessive radiation. In addition, § 73.1680 provides that if AM directional antenna systems become damaged and can no longer operate properly, prior Commission approval is not required for licensees to commence operation with an emergency nondirectional antenna and power reduced to 25 percent or less of the nominal licensed power, or a higher power, not exceeding licensed power, while ensuring that the radiated field strength does not exceed that authorized in any given azimuth. Licensees, however, must file a request for special temporary authority within 24 hours following commencement of emergency antenna operation. Because the current rules adequately provide for reduced power and emergency antenna operation, we find no need for any rule changes in this regard. With regard to MEI's concern about “short-lived” variances, it is impossible to predict in advance that a given out-of-tolerance condition will restore itself without the need for corrective action. Therefore, we are not persuaded that checking monitoring point readings necessarily will be a waste of time in these circumstances and decline to respond to MEI's request for further guidance on this matter. 11. We believe that our actions in this proceeding will result in clearer and more easily understandable rules that will assist AM broadcast licensees employing directional antennas to implement corrective action in the appropriate time frame when monitoring parameters exceed required operating tolerances during the operation of their stations. The clarification of these ambiguities will assist broadcast licenses in avoiding unnecessary termination of operation of their stations and provide the necessary guidance to maintain compliance with our rules. III. Procedural Matters 12. *Final Regulatory Flexibility Act* . As required by the Regulatory Flexibility Act (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated into the *NPRM* . The Commission sought written public comment on the possible significant economic impact of the proposed policies and rules on small entities in the *NPRM* , including comments on the IFRA. Pursuant to the RFA, a Final Flexibility Analysis is contained in Appendix C. 13. *Paperwork Reduction Act Analysis* . This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burdens for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). 14. *Congressional Review Act.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). IV. Final Regulatory Flexibility Act Analysis 15. As required by the Regulatory Flexibility Act of 1980, as amended, (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the *Notice of Proposed Rulemaking* in MB Docket No. 03-151 (hereinafter referred to as the *NPRM* ). The Commission sought written comment on the proposal in the *NPRM* , including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA. A. Need for, and Objectives, of the Report and Order 16. The Report and Order was issued to resolve a conflict between §§ 73.62 and 73.1350(d)(2) of the Commission's rules. Both rules are invoked when an AM broadcast station's directional operating parameters and/or monitoring point field strengths exceed the required operating tolerances. It was considered important to resolve the conflict in our rules because these rules affect termination of broadcast operations, which may deprive listeners of necessary information regarding hazardous or other emergency conditions. Moreover, if broadcasters are found not to be in compliance with these rules, they may face fines or have forfeiture action instituted against them. 17. The *Report and Order* adopts the substantive amendments proposed by the Commission in the Notice. It was determined that § 73.1350(d)(2) of the rules requiring termination of broadcast operation in three minutes was too stringent to apply to instances of minor out-of-tolerance AM directional operating parameters. As such, it was determined that a requirement to terminate operation in three minutes should apply only to catastrophic events likely to cause significant disruption to the operation of other stations or that pose a threat to life or property. In addition, it was determined that a requirement to terminate operation within three hours should apply to instances of out-of-tolerance operation that are likely to result in minor interference to other stations. Moreover, in the case of minor variances of operating power caused by environmental changes, it was determined that the 24 hour time period provided for in § 73.62 of the rules was a reasonable period of time in order to determine the existence of the out-of-tolerance condition. The Report and Order also clarified the rules to delineate the difference between minor variations of operating parameters and operation substantially at variance from the broadcast license. The Commission found that the rules at issue need not be amended regarding the reduction of power as an alternative to termination of operation or with regard to emergency antenna operation because the current rules adequately address these matters. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 18. There were no comments filed on the IRFA. C. Description and Estimate of the Number of Small Entities to Which Rules Will Apply 19. 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 rules adopted herein. 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). 20. The amendments to §§ 73.1350 and 73.62 will primarily apply to certain AM directional radio broadcasting licensees and potential licensees. The amendments to § 73.1350 would also affect FM broadcast stations in the event that any FM broadcast station operates in a manner that poses a threat to life or property or in a manner that is likely to cause significant disruption to the operation of other stations. The SBA defines a radio broadcast entity that has $6.5 million or less in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Publications, Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about 10,427 of the 10,945 commercial radio stations in the United States have revenues of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations with much higher revenue, and that in assessing whether a business concern qualifies as small under the above definition, such business (control) affiliations (“Concerns are affiliates of each other when one concern controls or has the power to control the other, or a third party or parties controls or has the power to control both.” 13 CFR 121.103(a)(1)) are included. “SBA counts the receipts or employees of the concern whose size is at issue and those of all its domestic and foreign affiliates, regardless of whether the affiliates are organized for profit, in determining the concern's size.” 13 CFR 121(a)(4). Our estimate, therefore likely overstates the number of small businesses that might be affected by the rules because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. 21. The amendments to § 73.1350 would also affect television stations in the event that any television station operates in a manner that poses a threat to life or property or is likely to significantly disrupt the operation of other stations. The SBA defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” This category description continues, “These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or from external sources.” Separate census categories pertain to businesses primarily engaged in producing programming. See id. at 502-05, NAICS code 51210. Motion Picture and Video Production: code 512120, Motion Picture and Video Distribution, code 512191, Teleproduction and Other Post-Production Services, and code 512199, Other Motion Picture and Video Industries. According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States have revenues of $12 million or less. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimates, therefore, likely overstate the number of small entities that might be affected by the rules because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 22. The rule changes will not impose any additional reporting or recordkeeping requirements. E. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 23. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives:

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

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

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

(4)an exemption from coverage of the rule, or any part thereof, for small entities. 24. The Report and Order has been issued to remedy a conflict in the Commission's rules that affect AM broadcast stations that employ directional antennas. Amendment of the rules also affects FM and television broadcast services. As we stated in the Notice of Proposed Rulemaking, no alternatives to our proposal were mentioned because we did not anticipate a differential impact on smaller entities. While we welcomed comment on modifications of our proposals if based on evidence of potential differential impact, we received no comments on the IRFA. 25. Report to Congress. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the **Federal Register** . V. Ordering Clauses 26. Accordingly, *it is ordered* that, pursuant to authority found in sections 1, 4(i) and (j), 301, 303 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 301, 303, and 403, the Commission's rules *are hereby amended* as set forth in Appendix B. 27. *It is ordered* that the rules adopted herein *will become effective* thirty days after publication in the **Federal Register** . 28. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, s *hall send* a copy of this *Report and Order* , including the Final Regulatory Flexibility Analysis, to the Chief Counsel of the Small Business Administration. List of Subjects in 47 CFR Part 73 Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73-RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, and 336. 2. Section 73.62 is revised to read as follows: § 73.62 Directional antenna system operation and tolerances.

(a)Each AM station operating a directional antenna must maintain the relative amplitudes of the antenna currents, as indicated by the antenna monitor, within 5% of the values specified on the instrument of authorization. Directional antenna relative phases must be maintained within 3 degrees of the values specified on the instrument of authorization.

(b)In the event of a failure of system components, improper pattern switching or any other event that results in operation substantially at variance from the radiation pattern specified in the instrument of authorization for the pertinent time of day, operation must be terminated within three minutes unless power can be reduced sufficiently to eliminate any excessive radiation. *See* § 73.1350(e).

(1)Any variation of operating parameters by more than ±15 percent sample current ratio or ±10 degrees in phase, any monitor point that exceeds 125 percent of the licensed limit, or any operation at variance that results in complaints of interference shall be considered operation substantially at variance from the license and will require immediate corrective action.

(2)[Reserved]

(c)In the event of minor variations of directional antenna operating parameters from the tolerances specified in paragraph

(a)of this section, the following procedures will apply:

(1)The licensee shall measure and log every monitoring point at least once for each mode of directional operation. Subsequent variations in operating parameters will require the remeasuring and logging of every monitoring point to assure that the authorized monitoring point limits are not being exceeded. The licensee will be permitted 24 hours to accomplish these actions; provided that, the date and time of the failure to maintain proper operating parameters have been recorded in the station log.

(2)Provided each monitoring point is within its specified limit, operation may continue for a period up to 30 days before a request for Special Temporary Authority

(STA)must be filed, pursuant to paragraph (c)(4) of this section, to operate with parameters at variance from the provisions of paragraph

(a)of this section.

(3)If any monitoring point exceeds its specified limit, the licensee must either terminate operation within three hours or reduce power in accordance with the applicable provisions of § 73.1350(d), in order to eliminate any possibility of interference or excessive radiation in any direction.

(4)If operation pursuant to paragraph (c)(3) of this section is necessary, or before the 30-day period specified in paragraph (c)(2) of this § expires, the licensee must request a Special Temporary Authority

(STA)in accordance with section 73.1635 to continue operation with parameters at variance and/or with reduced power along with a statement certifying that all monitoring points will be continuously maintained within their specified limits.

(d)In any other situation in which it might reasonably be anticipated that the operating parameters might vary out of tolerance (such as planned array repairs or adjustment and proofing procedures), the licensee shall, before such activity is undertaken, obtain a Special Temporary Authority

(STA)in accordance with § 73.1635 in order to operate with parameters at variance and/or with reduced power as required to maintain all monitoring points within their specified limits. 3. Section 73.1350 is amended by revising paragraphs (b)(2) and (d), redesignate paragraph

(e)through

(h)as paragraphs

(f)through (i), and by adding a new paragraph

(e)to read as follows: § 73.1350 Transmission system operation.

(b)* * *

(2)The transmitter control personnel must have the capability to turn the transmitter off at all times. If the personnel are at a remote location, the control system must provide this capability continuously or must include an alternate method of acquiring control that can satisfy the requirement of paragraph

(e)of this section that operation be terminated within three minutes.

(d)In the event that a broadcast station is operating in a manner that is not in compliance with the applicable technical rules set forth elsewhere in this part or the terms of the station authorization, and the condition is not listed in paragraph

(e)or

(f)of this section, broadcast operation must be terminated within three hours unless antenna input power is reduced sufficiently to eliminate any excess radiation. Examples of conditions that require termination of operation within three hours include excessive power, excessive modulation or the emission of spurious signals that do not result in harmful interference.

(e)If a broadcast station is operating in a manner that poses a threat to life or property or that is likely to significantly disrupt the operation of other stations, immediate corrective action is required. In such cases, operation must be terminated within three minutes unless antenna input power is reduced sufficiently to eliminate any excess radiation. Examples of conditions that require immediate corrective action include the emission of spurious signals that cause harmful interference, any mode of operation not specified by the station license for the pertinent time of day, or operation substantially at variance from the authorized radiation pattern. [FR Doc. E7-15373 Filed 8-7-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [WP Docket No. 07-100, DA 07-3256] Amendment of Part 90 of the Commission's Rules; Correction AGENCY: Federal Communications Commission. ACTION: Correcting amendments. SUMMARY: In this document, the Federal Communications Commission (“Commission”) published in the **Federal Register** of Wednesday, June 27, 2007, a document, wherein §§ 90.20(d)(42), 90.157, 90.203(n) and 90.235(e) was incorrectly amended. This document corrects those amendments. DATES: Effective on July 27, 2007. FOR FURTHER INFORMATION CONTACT: Rodney P. Conway, at *Rodney.Conway@FCC.gov* , Wireless Telecommunications Bureau,

(202)418-2904, or TTY

(202)418-7233; or via e-mail at *Rodney.Conway@fcc.gov* . SUPPLEMENTARY INFORMATION: Background The final regulations that are subject to these corrections supersedes §§ 90.20, 90.157, 90.203 and 90.235. Need for Correction As published, the final regulations contain errors which may prove to be misleading and need to be clarified. List of Subjects in 47 CFR Part 90 Administrative practice and procedure, Common carriers, Communications equipment, Radio. Accordingly, 47 CFR part 90 is corrected by making the following correcting amendments: PART 90—PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for part 90 continues to read as follows: Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7). 2. Amend § 90.20 by revising paragraph (d)(42) to read as follows: § 90.20 Public Safety Pool.

(d)* * *

(42)This frequency may not be assigned within 161 km (100 miles) of New Orleans, La. (coordinates 29°56′53″ N and 90°04′10″ W). 3. Revise § 90.157 to read as follows: § 90.157 Discontinuance of station operation.

(a)An authorization shall cancel automatically upon permanent discontinuance of operations. Unless stated otherwise in this part or in a station authorization, for the purposes of this section, any station which has not operated for one year or more is considered to have been permanently discontinued.

(b)For DSRCS Roadside Units

(RSUs)in the 5850-5925 MHz band, it is the DSRCS licensee's responsibility to delete from the registration database any RSUs that have been discontinued. 4. Amend § 90.203 by revising paragraph

(n)to read as follows: § 90.203 Certification required.

(n)Transmitters designed to operate in the voice mode on channels designated in §§ 90.531(b)(5) or 90.531(b)(6) that do not provide at least one voice path of 6.25 kHz of spectrum bandwidth shall not be manufactured in or imported into the United States after December 31, 2014. Marketing of these transmitters shall not be permitted after December 31, 2014. 5. Amend § 90.235 by revising paragraph

(e)to read as follows: § 90.235 Secondary fixed signaling operations.

(e)Until December 31, 1999, for systems in the Public Safety Pool authorized prior to June 20, 1975, and Power and Petroleum licensees as defined in § 90.7 authorized prior to June 1, 1976, the maximum duration of any signaling transmission shall not exceed 6 seconds and shall not be repeated more than 5 times. For Power licensees authorized between June 1, 1976, and August 14, 1989, signaling duration shall not exceed 2 seconds and shall not be repeated more than 5 times. Such systems include existing facilities and additional facilities which may be authorized as a clear and direct expansion of existing facilities. After December 31, 1999, all signaling systems shall be required to comply with the 2 second message duration and 3 message repetition requirements. Federal Communications Commission. Scot Stone, Deputy Chief, Mobility Division. [FR Doc. E7-15085 Filed 8-7-07; 8:45 am] BILLING CODE 6712-01-P 72 152 Wednesday, August 8, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. 03-002-4] RIN 0579-AC55 Importation of Nursery Stock; Postentry Quarantine Requirements for Potential Hosts of Chrysanthemum White Rust and Definition of From AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule; withdrawal and reproposal. SUMMARY: We are proposing to amend the regulations on importing nursery stock by providing an option in which the postentry quarantine growing period for articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that are imported from certain locations would be reduced from 6 months to 2 months, provided that the grower of those plants has implemented a systems approach to prevent the imported articles from being infected with chrysanthemum white rust. This proposal replaces part of a previous proposal that would also have provided an option in which the length of the postentry quarantine period for potential hosts of chrysanthemum white rust would have been reduced provided that the grower entered into a disease-prevention program. We are issuing this reproposal to further discuss the evidence that led us to conclude that a 2-month postentry quarantine period is adequate and to clarify how the systems approach would work. We are also proposing to amend the definition of *from.* The definition proposed in this document would replace the definition of *from* that was included in a previous proposal. We are proposing the new definition in response to concerns raised by comments on the previous proposal. DATES: We will consider all comments that we receive on or before October 9, 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-2005-0081 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. 03-002-4, 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. 03-002-4. *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: Dr. Arnold T. Tschanz, Senior Import Specialist, Plants for Planting Import and Analysis, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236;

(301)734-5306. SUPPLEMENTARY INFORMATION: Background The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of plant pests. The regulations contained in “Subpart—Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict, among other things, the importation of living plants, plant parts, and seeds for propagation. The regulations in § 319.37-7(a) designate as restricted articles any articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that meet the conditions for importation in § 319.37-5(c) and that are imported from any foreign locality except Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Canada, Canary Islands, Chile, China, Colombia, Croatia, Ecuador, Iceland, Japan, Korea, Liechtenstein, Macedonia, Malaysia, Mexico, Moldova, Monaco, New Zealand, Norway, Peru, Republic of South Africa, Russia, San Marino, Switzerland, Taiwan, Thailand, Tunisia, Ukraine, Uruguay, Venezuela, Yugoslavia; the European Union (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and United Kingdom); and all countries, territories, and possessions of countries located in part or entirely between 90° and 180° East longitude. Articles designated as restricted articles in § 319.37-7(a) must be grown in postentry quarantine under the conditions described in paragraphs

(c)and

(d)of § 319.37-7. Paragraph (d)(7)(ii) currently requires restricted articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* to be grown in postentry quarantine for a period of 6 months. The pest of concern with regard to imported articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* is chrysanthemum white rust (CWR). CWR is caused by *Puccinia horiana* Henn., a filamentous fungus and obligate parasite. CWR is not established in the United States and is a disease of quarantine significance. This disease has the potential to be extremely damaging to the commercial horticulture and florist industries if it becomes established in the United States. The postentry quarantine growing period for articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* is intended to allow symptoms of the disease, if it is present, to express themselves, so that any restricted articles that are affected with CWR can be prevented from entering U.S. commerce. On December 15, 2005, we published in the **Federal Register** (Docket No. 03-002-1, 70 FR 74215-74235) a proposal 1 to make several amendments to the nursery stock regulations. We solicited comments concerning the proposal for 60 days ending February 13, 2006. We reopened and extended the deadline for comments until March 31, 2006, in a document published in the **Federal Register** on February 28, 2006 (71 FR 9978, Docket No. 03-002-2). 1 To view the proposed rule and the comments we received, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2005-0081.* **Note:** Since the publication of the proposed rule, a final rule published in the **Federal Register** on April 3, 2007 (Docket No 03-016-3, 72 FR 15805-15812) expanded the list of countries from which exportation of CWR hosts is subject to postentry quarantine restrictions. Among the changes discussed in the December 2005 proposal was providing an option in which the postentry quarantine growing period for articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* would be reduced from 6 months to 2 months if the articles were grown in accordance with a best management practices program approved by the Animal and Plant Health Inspection Service (APHIS). The Plant Protection and Quarantine

(PPQ)program had evaluated the available scientific literature and found that 2 months was an adequate amount of time for CWR to express itself in postentry quarantine; we proposed to require the best management practices program as an additional safeguard. We received 25 comments on the proposed rule, from 23 commenters, including private citizens, State and local governments, industry organizations, individual industry companies, and foreign national plant protection organizations. Sixteen of these commenters addressed the proposed change to the postentry quarantine requirements for articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* . While many commenters supported the change, many commenters were confused regarding whether the best management practices program was intended to apply to production in the country of origin or to postentry quarantine in the United States. In addition, some commenters disputed our conclusion that 2 months is an adequate amount of time for symptoms of CWR infection to be expressed in postentry quarantine. To address these comments, we are withdrawing that portion of the December 2005 proposal that dealt with postentry quarantine for imported articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* . We are replacing it with this proposal, which discusses in greater detail the evidence that leads us to conclude that a 2-month postentry quarantine period for imported articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* is adequate. This proposal also presents new requirements for the systems approach that more clearly indicate that they apply to growing in the country of origin. We are also explaining in more detail how the systems approach would be used. (We used the term “best management practices program” to describe the intended program in the December 2005 proposed rule. We are replacing it with the term “systems approach” in this reproposal to clarify our terminology.) We discuss the postentry quarantine period and the requirements of the systems approach in detail directly below. Evidence Supporting Reducing the Postentry Quarantine Period for Articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum From 6 Months to 2 Months In the December 2005 proposed rule, we stated the following: “PPQ's Center for Plant Health Science and Technology has reviewed the available evidence regarding the time within which CWR will express symptoms. Although substantial evidence indicates that articles affected with CWR will express symptoms within 2 months, meaning that 2 months would be an adequate postentry quarantine period for these articles, not all the available evidence confirms that.” We received several comments on our statement that 2 months would be an adequate postentry quarantine period for these articles. The issues raised by these commenters are described below. Four commenters strongly supported all aspects of the proposal, including our determination that a 2-month postentry quarantine period was sufficient to allow expression of CWR in articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* . One of these commenters reviewed the available literature and concluded that most available studies indicate that CWR is expressed in normal conditions within 2 weeks, with an upper limit of 2 months in extreme conditions such as high temperatures or massive inoculations in a research setting. This commenter also noted that, in the June 2002 version of the APHIS document “Chrysanthemum White Rust: A National Management Plan for Exclusion and Eradication,” we stated that in the event that a nursery is found to be infected with CWR, no plant should leave the nursery for 8 weeks or until the nursery has been inspected and certified as being free of CWR. The current version of this document provides for an 8-week host-free period at any nursery at which plants are found to be infected with CWR. The commenter indicated that this document supports the statement that the 2-month postentry quarantine is adequate for expression of CWR symptoms. Two more commenters supported the proposed reduction in the postentry quarantine period on the condition that the reduction was based on science. Three commenters were concerned about our statement that not all the available evidence confirms that CWR is expressed in postentry quarantine within 2 months, asking us to discuss any evidence that might show that a longer postentry quarantine period is necessary for the expression of CWR. Seven commenters took issue with the proposed reduction in the postentry quarantine period for articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* . Five of these commenters stated that, under certain environmental and climatic conditions, CWR would not be expressed in a 2-month postentry quarantine period; they stated that the disease cycle of CWR requires cool, wet conditions in order to exhibit its symptoms. One commenter stated specifically that basidiospores (airborne spores) of the CWR fungus are produced and released during periods of relatively high humidity and when temperatures are between 40 °F and 73 °F, with optimum expression at 63 °F. In southern California, these cool temperatures occur only from November through June. Even using APHIS-approved best management practices, the commenter stated, the conditions necessary for CWR infections could not be created in a greenhouse during the hot summer months. Under the December 2005 proposal, stated the commenter, cuttings infected with CWR could conceivably be imported in July and released 2 months later in September and never show any symptoms, because climatic conditions at that time of year preclude symptoms from being exhibited. Based on these comments, we again reviewed the available evidence regarding the expression of CWR. Our statement in the December 2005 proposal that “not all the available evidence confirms” that 2 months is an adequate postentry quarantine period for CWR hosts was incorrect. The longest time between infection and symptom development that has been reported is 8 weeks. This was reported to have been achieved when infected cuttings were experimentally exposed to 86 °F (30 °C) temperatures for several hours, in an effort to simulate hot climatic conditions. However, efforts to reproduce this effect experimentally have been unsuccessful, and it has not been reported in the field. Most references on CWR concur that the disease usually expresses itself in between 5 to 14 days, depending on the prevailing climatic conditions. Warm temperatures increase the latency period, but in most cases not beyond 14 days, and we are not aware of any reports describing increases in the latency period beyond 2 months. The commenter who stated that CWR requires cool temperatures for expression, and thus that warm temperatures will delay expression of the disease indefinitely, did not provide a reference to support that statement, and we have been unable to locate any references confirming it. We invite commenters to submit any additional information that may be pertinent to this subject. We would also like to clarify the difference between the purpose of the 8-week host-free period in our CWR management plan and the time necessary for expression of symptoms of CWR in postentry quarantine. Teliospores of *P. horiana* can survive for up to 8 weeks in favorable climatic conditions on the leaves of CWR hosts, even in the absence of living plants. Keeping premises free of host plants for at least 8 weeks ensures that all the teliospores in the premises die, making it safe to repopulate the premises with CWR hosts. By contrast, the postentry quarantine period is not used to ensure disease freedom at a premises, but rather to determine whether potential hosts are infected with CWR. If a living plant is infected with CWR (either with teliospores or the shorter lived basidiospores), the disease will express itself within 5 to 14 days under normal conditions. The period required for eradication of CWR from a premises and the postentry quarantine period we are proposing are of similar length, but they have no relationship to each other. While 2 months appears to be an adequate postentry quarantine growing period for CWR hosts, we would require that CWR hosts grown in postentry quarantine for 2 months also be produced under a systems approach. We would include this additional safeguard because of the danger CWR presents to the domestic floral industry. Efforts to eradicate CWR outbreaks in the United States have been costly for growers, who typically must destroy all plants within a 1-meter radius of any infected plant, treat the entire production site to neutralize any remaining CWR spores, and implement a host-free period to prevent reintroduction of the rust. In a 2006 outbreak of CWR in California, the estimated cost per acre of implementing the host-free period alone was $54,594. Given that the entire production site must implement the host-free period in order to eradicate CWR, the eradication costs to producers can be considerable. The requirements of the systems approach would provide additional assurance that CWR-infected plants would not be introduced into the United States under the 2-month postentry quarantine period. One commenter additionally objected to the proposed 2-month postentry quarantine period as too short to allow for the necessary inspection of the plants being grown in postentry quarantine. This commenter stated that postentry quarantine inspections are usually conducted in spring and fall to increase the chances of finding a quarantine pest. Under the December 2005 proposal, the commenter stated, an importer could conceivably time the importation of cuttings to essentially avoid inspection. In this commenter's experience, when plants are imported for postentry quarantine, 2 or more months may pass before authorities at the local level receive notification from APHIS that the plants have arrived in the area. With a 2-month postentry quarantine period, the commenter stated, the material may have been shipped throughout the United States before local authorities have been notified that it was imported and before they have had a chance to conduct an inspection. The regulations in § 319.37-7(c) set out requirements for the postentry quarantine agreements that APHIS concludes with States. Under paragraph (c)(3)(iii), the Administrator is required to notify State officials, in writing and within 10 days of the arrival, when plant material destined for postentry quarantine in their State arrives in the United States. Under paragraph (c)(2)(iii), States are required to provide the services of State inspectors to inspect plants for evidence of exotic pests at least once for plants required to be grown in quarantine for less than 2 years. After this, again under paragraph (c)(3)(iii), the Administrator shall notify State officials in writing when materials in postentry quarantine may be released from quarantine in their State. We do not notify State officials that materials in postentry quarantine may be released from quarantine until we have received the results of the State inspection of the materials. If an importer removes plant material in postentry quarantine from the approved site before the Administrator notifies State officials that it may be released, then that importer is in violation of the regulations. Two other commenters objected generally to what they perceived as the loosening of restrictions on the importation of articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* , given that CWR outbreaks continue to occur occasionally in the United States. In these commenters' opinions, unless the reduced postentry quarantine period and the systems approach would encourage legal importation of those articles that are currently imported without complying with our regulations, the perceived additional risk of reducing the postentry quarantine period would not be warranted. As discussed earlier, our decision to reduce the postentry quarantine period for imported articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* is supported by science; it is not motivated by the goal of reducing illegal trade of those articles. We do not believe that providing an option in which the postentry quarantine period for imported articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* is reduced to 2 months will increase the risk of allowing a plant that is infected with CWR to enter U.S. commerce, especially if the plants are produced in compliance with the requirements of systems approach. It is important to note that the postentry quarantine restrictions placed on CWR hosts in the regulations apply to the importation of CWR hosts from countries where CWR is not known to occur. We prohibit the importation of CWR hosts from countries where CWR is known to occur in § 319.37-2(a). CWR has not been detected in any host plants imported under the current postentry quarantine program in the last 10 years. We believe the introductions of CWR that the commenter cites were the result of illegal importations. We are continuing to work through our Smuggling Interdiction and Trade Compliance program and with the Department of Homeland Security's Bureau of Customs and Border Protection to prevent such introductions. Because the option we are proposing would reduce the postentry quarantine period to the time actually required for expression of symptoms while imposing additional phytosanitary safeguards on the production of CWR host materials, we believe the program we are proposing here would be as effective as our current program. Two commenters suggested that APHIS issue a departmental permit to allow a reduction in the postentry quarantine period. Departmental permits are issued under § 319.37-2(c) and provide for the importation of articles that are listed as prohibited under paragraphs

(a)and

(b)of § 319.37-2 for experimental or scientific purposes; APHIS may specify conditions for such importation that are adequate to prevent the introduction into the United States of plant pests. However, articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* that are eligible to be imported under postentry quarantine conditions are, by definition, not prohibited articles. Therefore, using the departmental permit to facilitate their importation in this way would not be appropriate. In addition, the departmental permit is intended for us only to allow importation for experimental or scientific purposes. Systems Approach for Articles of Chrysanthemum spp., Leucanthemella serotina , and Nipponanthemum nipponicum Imported Into the United States As many commenters noted, our explanation of the best management practices program cited in the December 2005 proposed rule did not make clear whether the program would be applied to imported articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* during their growth in their country of origin or to their growth during postentry quarantine. Many commenters interpreted our description of the best management practices program to mean that it would apply to the growth of these articles during postentry quarantine, and objected to the increased responsibility placed on Federal and State entities to monitor postentry quarantine under the conditions of the best management practices program. Some of these commenters further stated that a program to prevent the articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* from being infected with CWR while being grown in the country of origin, prior to importation into the United States, would be more effective, both in terms of cost and in terms of phytosanitary security. We agree with these comments. We had intended for the best management practices program described in the December 2005 proposal to apply to the growth of these plants in the country of origin, and the systems approach we are proposing to require as a condition of reducing the postentry quarantine period from 6 to 2 months would also apply to the growth of articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* in their country of origin. In this proposal, we have revised the requirements of the systems approach in order to make it clear that they would apply to growth in the country of origin. In order to be eligible for participation in this program, the articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* would have to be grown in a production site that is a greenhouse or other enclosed building. The proposed systems approach would specify several basic requirements to be fulfilled during the production of those articles and prior to their importation to the United States. These requirements are the following: • Production sites would have to generate plants for planting from propagative material that is free of CWR. • Production sites would have to write and implement standard operating procedures that include provisions for adequate pest control, isolation of the production site from host material not intended for export to the United States, regular inspection and testing, and training of production site employees. • Production sites would have to keep detailed records of all aspects of plant production, including the origin of articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* that will be exported so that they may be traced back if necessary. Production sites would have to label the containers in which the articles are shipped in order to facilitate traceback investigations. • The national plant protection organization

(NPPO)of the country in which the production site is located would have to oversee the production site and perform regular audits to ensure that all elements of the production system are in compliance with the requirements of the systems approach and the workplan. • APHIS would have to be allowed to perform on-site audits of the production site as well. APHIS would also perform audits at the port of entry into which the plants are imported to ensure that these articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* meet the requirements of the systems approach and the workplan. • The NPPO of the country in which the production site is located and APHIS would impose penalties and remedial actions in the case of noncompliance. The NPPO would not issue phytosanitary certificates for shipments of articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* exported under the systems approach if an audit revealed that the articles were not grown in compliance with the requirements of the systems approach and the workplan. Penalties that could be imposed would include, but would not necessarily be limited to, removal of the exporting production site from the list of growers approved by APHIS to ship these articles to the United States under this program. • The government of the country in which the articles are produced or its designated representative would have to enter into a trust fund agreement with APHIS before each growing season. The government of the country in which the articles are produced or its designated representative would have to pay in advance all estimated costs that APHIS expects to incur through its involvement in overseeing the execution of the systems approach. (The specific level of APHIS involvement will vary with the terms of the workplan; APHIS involvement may range from regular inspections of production sites to occasional on-site audits.) Details on this requirement can be found in the proposed regulatory text at the end of this document. Two commenters on the December 2005 proposal asked to review the program we described in that rule. We are not proposing to add specific phytosanitary requirements to the regulations. Instead, we are proposing to set out the performance standards in the regulations. If this rule is finalized, the NPPO of a country that wishes to export articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* to the United States for a postentry quarantine growing period of 2 months (rather than 6 months) would submit to us a detailed proposal for operational plans and procedures that fulfill the performance standards. We would then work with the NPPO of the exporting country to agree upon a final set of operational plans and procedures, which would be codified in a bilateral workplan. 2 Thus, the regulations would require that the articles be produced in accordance with a workplan that meets the requirements of the systems approach, as listed in the regulations. We anticipate that the specific conditions required by a workplan will vary according to the conditions in the country and facility where the workplan is implemented, and as such we do not have a single workplan that we can make available. 2 We published in the **Federal Register** a notice providing background information on bilateral workplans on May 10, 2006 (71 FR 27221-27224, Docket No. APHIS-2005-0085). It can be accessed at *http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=APHIS-AOGUS-2005-0085-0001.* The changes discussed in this proposal would reduce the cost of postentry quarantine for importers of articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* while continuing to protect against the introduction of CWR into the United States. Proposed Amendments to the Regulations In § 319.37-7, paragraph (d)(7)(ii) lists articles of *Chrysanthemum* spp., *Dendranthema* spp., 3 *Leucanthemella serotina* , and *Nipponanthemum nipponicum* , articles of *Dianthus* spp., and articles of *Hydrangea* spp. as articles for which a postentry quarantine growing period of less than 2 years is permitted. In the December 2005 proposal, we proposed to add articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* produced in accordance with a best management practices program to this list, with a 2-month postentry quarantine period. 3 The April 2007 final rule referred to earlier was intended to remove all references to *Dendranthema* spp. within the text of the regulations but inadvertently did not remove the reference in this paragraph. In this proposed rule, we would correct that error. In this document, we are proposing to amend the regulations in § 319.37-5(c). This paragraph presently requires that any restricted article (except seeds) of *Chrysanthemum* spp., *Leucanthemella serotina* , or *Nipponanthemum nipponicum* from any foreign place other than countries where CWR is known to occur shall, at the time of arrival at the port of first arrival in United States, be accompanied by a phytosanitary certificate of inspection containing a declaration that the article was grown in a greenhouse nursery and found by the NPPO of the country in which grown to be free from CWR. This finding must be based on visual examination of the parent stock, the articles for importation, and the greenhouse nursery in which the articles for importation and the parent stock were grown, once a month for 4 consecutive months immediately prior to importation. Imported articles of *Chrysanthemum* spp., *Leucanthemella serotina* , or *Nipponanthemum nipponicum* must satisfy this requirement in order to be eligible to enter the United States for postentry quarantine. We would move these current requirements into paragraph (c)(1) and add the systems approach requirements described earlier in a new paragraph (c)(2). In § 319.37-7(d)(7)(ii), we would break up the list of articles eligible for postentry quarantine of less than 2 years into subparagraphs for ease of reading. Under this proposal, paragraph (d)(7)(ii)(A) of § 319.37-7 would indicate that an article of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* that meets the requirements of § 319.37-5(c)(2) would be required to be grown in postentry quarantine for 2 months. Paragraph (d)(7)(ii)(B) would state that an article of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* that meets the requirements of § 319.37-5(c)(1) would be required to be grown in postentry quarantine for 6 months. Paragraphs (d)(7)(ii)(C) and (d)(7)(ii)(D) would contain the current language regarding articles of *Dianthus* spp. and *Hydrangea* spp. Other Comments on the December 2005 Proposal Two commenters on the December 2005 proposal suggested that APHIS include provisions for a trust fund. The commenters suggested that the fund could be used to properly administer the current CWR regulations and monitor for the disease, and to help defray the cost of eradication when outbreaks occur. We provide for trust funds in the regulations when the regulations require that APHIS provide services to foreign growers, such as monitoring or certification. The trust fund that would be required for the implementation of the systems approach for CWR in this proposal is one example. We do not use trust funds as a means of providing insurance against the introduction of a disease. APHIS will continue to enforce the regulations governing the importation of all articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* and to survey for signs of CWR infection in plants in the United States in cooperation with State governments. One commenter, the Netherlands Ministry of Agriculture, Nature, and Food Quality (the Netherlands NPPO), noted that importation of articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* from the Netherlands (as well as the rest of Europe) is prohibited under § 319.37-2(a). The Netherlands NPPO asked that APHIS recognize the European Union

(EU)Directive 2000/29, Annex IV-A-II, item 21.1, which requires propagative material of *Chrysanthemum* spp. to be regularly inspected during the growing season and to be inspected prior to export. The commenter also noted that the Netherlands NPPO is not aware of CWR ever having been detected on *Chrysanthemum* spp. cuttings exported from the Netherlands. The commenter stated that articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* from the Netherlands that are produced under the requirements of this directive should be admissible. The commenter further noted that one grower in its country has a program in place that appears to satisfy the requirements of the best management practices program as we described it in the December 2005 proposed rule. As the commenter noted, importation of articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* from the Netherlands is currently prohibited under § 319.37-2(a). The December 2005 proposal did not propose to change that, nor does this proposal. The Netherlands has submitted a formal request for APHIS to evaluate the conditions provided under the EU directive and the conditions of these programs in place at the grower cited in the comment. APHIS will evaluate the request to determine whether articles of *Chrysanthemum* spp., *Leucanthemella serotina* , and *Nipponanthemum nipponicum* produced under these conditions should be either allowed to be imported subject to postentry quarantine or generally admissible. If the evaluation indicates that their importation should be allowed, we will publish a separate proposal to amend the regulations. Definition of From The definition of *from* in § 319.37-1 currently provides that an article is considered to be “from” any country or locality in which it was grown. The current regulations also provide that an article imported into Canada from another country or locality shall be considered as being solely “from” Canada if it is imported into the United States directly from Canada after having been grown for at least 1 year in Canada; has never been grown in a country from which it would be a prohibited article or from which it would be subject to special foreign inspection, certification, treatment, or other requirements; was not grown in a country or locality from which it would be subject to postentry quarantine requirements, unless it was grown in Canada under postentry growing conditions equivalent to those specified for the article in § 319.37-7; and was not imported into Canada in growing media. In the December 2005 proposed rule, we proposed to replace this definition with a new definition of *from* , in order to remove the special provisions related to the importation of regulated articles from Canada. The proposed definition of *from* read: “An article is considered to be ‘from’ an exporting country or area when it was grown or propagated only in the exporting country or area, or when it was grown in the exporting country or area after it entered the exporting country or area from another country or area under conditions that are equivalent to those that would be required by the United States if the plant were imported into the United States directly from any of the countries or areas where the plant was grown prior to its entry into the exporting country or area.” We received several comments on our proposed definition. Many of these commenters were concerned that the proposed definition might weaken our protections against the importation of potentially risky nursery stock. Three commenters asked us to clarify whether articles whose importation is prohibited from one country would continue to be prohibited even after importation to a second country, regardless of the time that the articles remained in the second country. Some commenters expressed concern that the proposed definition would be difficult to enforce, since the NPPOs of exporting countries would have to keep track of any plant material that entered their country and that might be reexported at some point in the future, as well as any propagations of that plant material. Other commenters expressed general concern about whether the restrictions on the importation of nursery stock in general are adequate to prevent the introduction of plant pests, when it can be difficult to determine what pests a plant has been exposed to. Based on these comments, we have rethought our proposed definition of *from.* While in theory it would make sense to provide that nursery stock that is imported into one country and then exported from that country to the United States must satisfy the same requirements that it would have to if it was imported directly into the United States, in practice such a requirement would be difficult to enforce. As an example, assume that Country A does not impose restrictions on the importation of *Pelargonium* spp. from Country B, but the United States allows *Pelargonium* spp. from Country A to be imported with a phytosanitary certificate with an additional declaration under § 319.37-5(r)(2) and requires *Pelargonium* spp. from Country B to be imported under the systems approach described in § 319.37-5(r)(3). In order for Country A to export *Pelargonium* plants to the United States, the NPPO of Country A would have to track all *Pelargonium* plants of foreign origin, even after they were legally imported, in order to be able to certify that any *Pelargonium* spp. exported from Country A to the United States were either not from Country B or were grown in accordance with a systems approach for which there would be no regulatory enforcement mechanism in place. This would be a logistically unfeasible task for the NPPO of Country A to undertake. The International Plant Protection Convention's

(IPPC)2002 Glossary of Phytosanitary Terms (International Standards for Phytosanitary Measures [ISPM] publication number 5) 4 takes a different approach to the issue. The Glossary of Phytosanitary Terms includes a definition of the term *country of origin* for consignments of plants that reads: “Country where the plants were grown.” (The IPPC definition of *country of origin* is thus functionally equivalent to the term *from* as it is used in our regulations.) The definition and the glossary do not provide any further guidance on how to determine what country that is or how long plants need to be growing in the exporting country, however, making it difficult for an importing NPPO to evaluate the risk associated with the plant material if it has previously been grown in a third country. 4 ISPMs may be viewed on the World Wide Web at *https://www.ippc.int/IPP/En/default.jsp.* Click on the “Standards” link on the home page to view the ISPMs. We are proposing a compromise. We would define the term *from* as follows: “An article is considered to be ‘from’ the country where it, or the plants from which the article was derived, was actively growing for at least 9 months immediately prior to export.” If the plant material did not meet this definition, the NPPO of the exporting country would not issue a phytosanitary certificate to accompany it; as a phytosanitary certificate is required for almost all imported nursery stock other than certain articles from Canada and small lots of seed, this would restrict the importation of those articles that have not been grown for 9 months in the country from which they would be exported. We chose 9 months because it is a common length for a growing season for nursery stock; if a plant has been growing in a country for a full growing season, it is reasonable to assume that it poses the same potential pest risk as other plants of the same genus grown in that country. This definition would provide an enforceable standard. We do not mean to minimize the problem of plants that originate in countries where the pest risk is high and are then re-exported to the United States through countries where the pest risk is lower. However, to refer again to the example discussed earlier, if Country A does not have restrictions on the importation of *Pelargonium* spp. from Country B, it would be difficult for the country to track those plants once they have been imported. Another solution would be simply to impose the same restrictions on the importation of *Pelargonium* spp. from Country A as we do on *Pelargonium* spp. from Country B, given that the importation restrictions in place in Country A make it difficult to determine which *Pelargonium* spp. exported from Country A may have originated in Country B and thus pose an elevated pest risk. We may pursue this avenue of regulatory action in the future. However, such regulatory action would be undertaken independent of our definitions of the word *from* . Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. The Regulatory Flexibility Act requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 603 of the Act requires an agency to prepare and make available for public comment an initial regulatory flexibility analysis

(IRFA)describing the expected impact of a proposed rule on small entities, unless the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. APHIS has prepared this IRFA in order that the public may have the opportunity to offer comments on expected small-entity effects of this proposed rule. We address here items as required by section 603(b) of the Act. APHIS is proposing to amend the regulations on importing nursery stock by providing an option in which the postentry quarantine growing period for articles *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that are imported from certain locations would be reduced from 6 months to 2 months, provided that the grower of those plants has implemented a systems approach to prevent the imported articles from being infected with CWR. PPQ has determined that imported chrysanthemums that might be affected with CWR are likely to express symptoms of this disease if it is present within a 2-month postentry quarantine period; the fact that the chrysanthemums would originate in countries not considered to be affected with CWR and would be grown in accordance with an APHIS-approved workplan that meets the requirements of the systems approach would reduce the likelihood that they would be infected with CWR. Articles identified in postentry quarantine as being infected with CWR are then prevented from entering U.S. commerce. Under the Plant Protection Act (7 U.S.C. 8301 *et seq.* ), the Secretary of Agriculture is authorized to implement programs and policies designed to prevent the spread of plant pests and diseases. The objective of this proposed rule is to provide another option for importation of chrysanthemums that is based on current science and does not compromise the phytosanitary safety of U.S. floral plants. This proposed rule may affect the volume of chrysanthemums imported into the United States because some importers may find that the reduction of costs due to the shortened postentry quarantine period will be greater than the additional cost for chrysanthemums produced under the systems approach. These reduced costs would then encourage a greater volume of importation. We expect that this will occur. The economic effects of the proposed change are expected to be positive, if small, for U.S. importers of chrysanthemums into the United States. In 2005, the value of imported chrysanthemums was around $80.2 million, or 8 percent of the value of all imported flowers (i.e., fresh cut flowers and florist plants). 5 In the same year, the wholesale value of the domestic sales of chrysanthemums reached $210.8 million. 6 5 U.S. Department of Agriculture, Foreign Agricultural Service, U.S. Trade Statistics, Harmonized Schedule 10-digit import codes 0603107010, 0603107020, and 0602903010. 6 U.S. Department of Agriculture, NASS, Agricultural Statistics Board, Floriculture Crops 2005 Summary, April 2006, pages 37 and 53. The sum of wholesale value of all sales of potted Hardy/Garden Chrysanthemums ($141,845,000) and wholesale value of all sales of potted Florist Chrysanthemums ($68,944,000). And, U.S. Department of Agriculture, Economic Research Service, Floriculture and Nursery Crops Outlook, Electronic Outlook Report, FLO-05, Table: Summary 9, September 22, 2006. The shorter postentry quarantine period for imported chrysanthemums may benefit U.S. importers/wholesalers and florist retailers. The proposed change would reduce the cost to chrysanthemum importers (categorized within North American Industry Classification System [NAICS] code 424930), and those savings may be at least partially passed along to retailers of these plants (NAICS code 453110). The Small Business Administration

(SBA)has established size standards for determining which economic entities meet the definition of a small firm. The small-entity size standard for importers/wholesalers of flowers, nursery stock, and florists' supplies is 100 or fewer employees. For retail florists, the small-entity size standard is $6.5 million or less in annual sale receipts. According to the 2002 Economic Census, there were approximately 4,854 wholesale establishments importing flowers, nursery stock, and florists' supplies, and they employed 59,954 people. All but four of these establishments were likely small entities. 7 According to the same census, there were 22,750 retail florist establishments with total annual sales of $6.63 billion in 2002. Their size distribution is not reported. Both wholesale and retail entities, regardless of their size, would benefit from the shorter quarantine period, but we are unable to determine the size of the benefit. 7 Personal communication with Joe W. Begley, General Manager, Technical Services Group, Yoder Brothers, Inc., Parrish, Florida. APHIS welcomes information that the public may provide concerning the expected magnitude of the benefit of the proposed rule and the number of small entities that may be affected. The proposed change to amend the definition of from is administrative in nature. We do not expect that it would have any impact on any U.S. entities, whether small or large. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted:

(1)All State and local laws and regulations that are inconsistent with this rule will be preempted;

(2)no retroactive effect will be given to this rule; and

(3)administrative proceedings will not be required before parties may file suit in court challenging this rule. Paperwork Reduction Act In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 03-002-4. Please send a copy of your comments to:

(1)Docket No. 03-002-4, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and

(2)Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule. We are proposing to provide an option in which the postentry quarantine growing period for articles *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that are imported from certain locations would be reduced from 6 months to 2 months, provided that the grower of those plants has implemented a systems approach to prevent the imported articles from being infected with CWR. This would require the use of bilateral workplans and phytosanitary certificates. We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1)Evaluate whether the proposed information collection is necessary for the proper performance of our agency s functions, including whether the information will have practical utility;

(2)Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3)Enhance the quality, utility, and clarity of the information to be collected; and

(4)Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). *Estimate of burden:* Public reporting burden for this collection of information is estimated to average 45.1 hours per response. *Respondents:* Importers of nursery stock and NPPOs. *Estimated annual number of respondents:* 7. *Estimated annual number of responses per respondent:* 1.4285714. *Estimated annual number of responses:* 10. *Estimated total annual burden on respondents:* 451 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)734-7477. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)734-7477. List of Subjects in 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. Accordingly, we are proposing to amend 7 CFR part 319 as follows: PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 2. Section 319.37-1 is amended by revising the definition of *from* to read as follows: § 319.37-1 Definitions. *From.* An article is considered to be “from” the country where it, or the plants from which the article was derived, was actively growing for at least 9 months immediately prior to export. 3. In § 319.37-5, paragraph

(c)is revised to read as follows: § 319.37-5 Special foreign inspection and certification requirements.

(c)Any restricted article (except seeds) of *Chrysanthemum* spp. (chrysanthemum, includes *Dendranthema* spp.), *Leucanthemella serotina,* or *Nipponanthemum nipponicum,* from any foreign place except Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Canada, Canary Islands, Chile, China, Colombia, Croatia, Ecuador, Iceland, Japan, Korea, Liechtenstein, Macedonia, Malaysia, Mexico, Moldova, Monaco, New Zealand, Norway, Peru, Republic of South Africa, Russia, San Marino, Switzerland, Taiwan, Thailand, Tunisia, Ukraine, Uruguay, Venezuela, Yugoslavia; the European Union; and all countries, territories, and possessions of countries located in part or entirely between 90° and 180° East longitude must, at the time of arrival at the port of first arrival in United States, be accompanied by a phytosanitary certificate of inspection containing one of the following declarations:

(1)A declaration that such article was grown in a greenhouse nursery and found by the plant protection service of the country in which it was grown to be free from white rust of chrysanthemum (caused by the rust fungus *Puccinia horiana* P. Henn.) based on visual examination of the parent stock, the articles for importation, and the greenhouse nursery in which the articles for importation and the parent stock were grown, once a month for 4 consecutive months immediately prior to importation; or

(2)A declaration that such article was grown in a production site that is a greenhouse or other enclosed building and in accordance with an APHIS-approved operational workplan that contains provisions for fulfilling the systems approach requirements listed below. The systems approach requirements are:

(i)Production sites must generate plants for planting from propagative material that is free of chrysanthemum white rust ( *Puccinia horiana* Henn.).

(ii)Production sites must write and implement standard operating procedures that include provisions for adequate pest control, isolation of the production site from host material not intended for export to the United States, regular inspection and testing, and training of production site employees.

(iii)Production sites must keep detailed records of all aspects of plant production, including the origin of articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that will be exported so that they may be traced back if necessary. Production sites must label the containers in which the articles are shipped in order to facilitate traceback investigations.

(iv)The national plant protection organization of the country in which the production site is located must oversee the production site and perform regular audits to ensure that all elements of the production system are in compliance with the requirements set out in this paragraph (c)(2) and in the workplan.

(v)APHIS must be allowed to perform on-site audits of the production site as well. APHIS will perform audits at the port of entry into which the plants are imported to ensure that these articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* meet the requirements set out in this paragraph (c)(2) and in the workplan.

(vi)The national plant protection organization of the country in which the production site is located and APHIS will impose penalties and remedial action in the case of noncompliance. The national plant protection organization may not issue phytosanitary certificates for shipments of articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* exported under the systems approach if an audit reveals that the articles were not grown in compliance with the requirements set out in this paragraph (c)(2) and in the workplan. Penalties that could be imposed will include, but may not necessarily be limited to, removal of the exporting production site from the list of growers approved by APHIS to ship these articles to the United States under this program.

(vii)The government of the country in which the articles of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* are produced or its designated representative must enter into a trust fund agreement with APHIS before each growing season. The government of the country in which the articles are produced or its designated representative is required to pay in advance all estimated costs that APHIS expects to incur through its involvement in overseeing the execution of this paragraph (c)(2). These costs will include administrative expenses incurred in conducting the services enumerated in this paragraph (c)(2) and all salaries (including overtime and the Federal share of employee benefits), travel expenses (including per diem expenses), and other incidental expenses incurred by the inspectors in performing these services. The government of the country in which the articles are produced or its designated representative is required to deposit a certified or cashier's check with APHIS for the amount of the costs estimated by APHIS. If the deposit is not sufficient to meet all costs incurred by APHIS, the agreement further requires the government of the country in which the articles are produced or its designated representative to deposit with APHIS a certified or cashier's check for the amount of the remaining costs, as determined by APHIS, before the services will be completed. After a final audit at the conclusion of each shipping season, any overpayment of funds would be returned to the government of the country in which the articles are produced or its designated representative or held on account until needed. 4. Section 319.37-7 is amended by revising paragraph (d)(7)(ii) to read as follows: § 319.37-7 Postentry quarantine.

(d)* * *

(7)* * *

(ii)If an article of a genus or species listed in this paragraph, to grow the article or increase therefrom only in a greenhouse or other enclosed building for the period listed below:

(A)If an article of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that meets the requirements of § 319.37-5(c)(2) of this subpart, for a period of 2 months after importation.

(B)If an article of *Chrysanthemum* spp., *Leucanthemella serotina,* and *Nipponanthemum nipponicum* that meets the requirements of § 319.37-5(c)(1) of this subpart, for a period of 6 months after importation.

(C)If an article of *Dianthus* spp. (carnation, sweet-william), for a period of 1 year after importation.

(D)If an article of *Hydrangea* spp., for a period of 9 months after importation. Done in Washington, DC, this 2nd day of August 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-15421 Filed 8-7-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28884; Directorate Identifier 2007-NM-116-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 727 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for all Boeing Model 727 airplanes. This proposed AD would require repetitive external high frequency eddy current

(HFEC)inspections of the crown skin for cracks at certain stringer attachment holes, and repair if necessary. This proposed AD results from a report of cracks at multiple locations on certain areas of the crown skin. We are proposing this AD to detect and correct fatigue cracks of the crown skin, which could result in rapid decompression of the airplane. DATES: We must receive comments on this proposed AD by September 24, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Fax:*

(202)493-2251. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6577; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-28884; Directorate Identifier 2007-NM-116-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the 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 level of the West Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received a report indicating that fatigue tests resulted in cracks at multiple locations on the 727 body section 43 and 46 crown skin between stringers 11L and 11R. The first fatigue test cracks were found at approximately 66,000 simulated flight cycles. Subsequent inspection by Boeing on in-service airplanes also revealed similar crown skin cracks. In-service cracks were found on airplanes with between 71,236 and 81,234 total flight cycles. Fatigue cracks of the crown skin, if not detected and corrected, could result in rapid decompression of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 727-53A0224, dated April 10, 2003. The service information describes procedures for repetitive external high frequency eddy current

(HFEC)inspections of the crown skin for cracks at stringer attachment holes between stringer 11L and stringer 11R and from body station

(BS)259.5 to BS 1183, and repair of any crack. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Referenced Service Information.” Difference Between Proposed AD and Referenced Service Information Operators should note that, although the Accomplishment Instructions of the referenced service information describe procedures for reporting all cracks to Boeing, this proposed AD would not require that action. Costs of Compliance There are about 842 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 459 airplanes of U.S. registry. The proposed inspection would take about 110 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $4,039,200, or $8,800 per airplane, per inspection cycle. 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the 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 proposed 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, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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): **BOEING:** Docket No. FAA-2007-28884; Directorate Identifier 2007-NM-116-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by September 24, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to all Boeing Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category. Unsafe Condition

(d)This AD results from a report of cracks at multiple locations on certain areas of the crown skin. We are issuing this AD to detect and correct fatigue cracks of the crown skin, which could result in rapid decompression of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Repetitive Inspections and Repair

(f)Before the accumulation of 66,000 total flight cycles, or within 3,500 flight cycles after the effective date of this AD, whichever occurs later, do an external high frequency eddy current inspection of the crown skin for cracks at stringer attachment holes between stringer 11L and stringer 11R and from body station

(BS)259.5 to BS 1183. Repair any crack found before further flight. Do the actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 727-53A0224, dated April 10, 2003, except as provided by paragraph

(g)of this AD. Repeat the inspection at intervals not to exceed 3,500 flight cycles.

(g)Although the service bulletin referred to in this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle Aircraft Certification Office (ACO), 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. Issued in Renton, Washington, on July 30, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-15426 Filed 8-7-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28909; Directorate Identifier 2007-NM-135-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

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

(MCAI)originated 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: It has been found cases in which some wiring harnesses were not protected in accordance with SFAR-88 (Special Federal Aviation Regulation No. 88) requirements. The potential of ignition sources, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 7, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. Examining the AD Docket You may examine the 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 AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2125; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28909; Directorate Identifier 2007-NM-135-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2006-07-02, effective August 21, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found cases in which some wiring harnesses were not protected in accordance with SFAR-88 (Special Federal Aviation Regulation No. 88) requirements. The potential of ignition sources, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The corrective action includes installing heat shrinkable sleeves on the inspection and refueling panel illumination lights wiring, and installing nipples on the terminal lugs to protect the wire terminals. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate

(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information EMBRAER has issued Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. 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 proposed 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 proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 8 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $32 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 costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,096, or $512 per product. 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the 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 proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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: **Empresa Brasileira de Aeronautica S.A. (Embraer):** Docket No. FAA-2007-28909; Directorate Identifier 2007-NM-135-AD. Comments Due Date

(a)We must receive comments by September 7, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to EMBRAER Model EMB-135BJ airplanes, certificated in any category; as identified in EMBRAER Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005. Subject

(d)Air Transport Association

(ATA)of America Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: It has been found cases in which some wiring harnesses were not protected in accordance with SFAR-88 (Special Federal Aviation Regulation No. 88) requirements. The potential of ignition sources, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The corrective action includes installing heat shrinkable sleeves on the inspection and refueling panel illumination lights wiring, and installing nipples on the terminal lugs to protect the wire terminals. Actions and Compliance

(f)Unless already done, do the following actions.

(1)Within 5,000 flight hours after the effective date of this AD, install heat shrinkable sleeves on the inspection and refueling panel illumination lights wiring, and install nipples on the terminal lugs to protect the wire terminals, in accordance with the detailed instructions and procedures in EMBRAER Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005.

(2)Actions done before the effective date of this AD in accordance with EMBRAER Service Bulletin 145LEG-28-0016, dated March 8, 2004, are acceptable for compliance with the corresponding actions of this AD. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows: No differences. Other FAA AD Provisions

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

(1)Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone

(425)227-2125; fax

(425)227-1149. 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, 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 MCAI Brazilian Airworthiness Directive 2006-07-02, effective August 21, 2006, and EMBRAER Service Bulletin 145LEG-28-0016, Revision 01, dated June 27, 2005, for related information. Issued in Renton, Washington, on July 30, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-15411 Filed 8-7-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket Nos. RM07-19-000 and AD07-7-000] Wholesale Competition in Regions With Organized Electric Markets; Notice of Extension of Comment Date June 22, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Advance notice of proposed rulemaking: Extension of comment date. SUMMARY: On June 22, 2007, The Federal Energy Regulatory Commission (Commission) is issuing an Advance Notice of Proposed Rulemaking (ANOPR) with regard to potential reforms to improve the operation of organized wholesale electric markets. 72 FR 36,275 (July 2, 2007). The Commission is extending the date for filing comments on the ANOPR at the request of interested parties. DATES: Comments on this ANOPR are now due on September 14, 2007. ADDRESSES: You may submit comments identified by Docket Nos. RM07-19-000 and AD07-7-000 by one of the following methods: • *Agency Web Site: http://www.ferc.gov.* Follow the instructions for submitting comments via the eFiling link found in the Comment Procedures section of the ANOPR. • *Mail:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Please refer to the Comment Procedures section of the June 22, 2007 ANOPR for additional information on how to file paper comments. FOR FUTHER INF0RMATION CONTACT: David Kathan (Technical Information), Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 200426, *David.Kathan@ferc.gov,*

(202)502-6404. Elizabeth Rylander (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, *Elizabeth.Rylander@ferc.gov,*

(202)502-8466. SUPPLEMENTARY INFORMATION: Notice of Extension of Time July 27, 2007. On July 23, 2007, the American Public Power Association, the Edison Electric Institute, the Electric Power Supply Association, the ISO/RTO Council, the Large Public Power Council, the National Association of Regulatory Utility Commissioners, the National Rural Electric Cooperative Association, the Organization of MISO States, and the Transmission Access Policy Study Group (collectively, “the Joint Movants”) filed a motion requesting an extension of time until September 14, 2007 to file comments in response to the Advance Notice of Proposed Rulemaking issued June 22, 2007, in the above-referenced proceeding. *Wholesale Competition in Regions with Organized Electric Markets,* 72 FR 36,275 (July 2, 2007), FERC Stats. & Regs. ¶ 32,617

(2007)(June 22 ANOPR). The Joint Movants state that they need additional time to conduct member company consultations and to prepare reasoned comments in this docket. On July 25, 2007, the California Public Utilities Commission filed an answer supporting the Joint Movants' request for additional time. On July 25, 2007, Central Hudson Gas & Electric Company, Consolidated Edison Company of New York, Inc., LIPA, New York Power Authority, New York State Electric & Gas Corporation, Orange and Rockland Utilities, Inc. and Rochester Gas and Electric Company (collectively, the “New York Transmission Owners”) filed a similar motion, which also requests an extension of the comment date until September 14, 2007. The New York Transmission Owners state that additional time will allow them to provide the Commission with more meaningful and substantive comments than would be possible under the current time constraints. Upon consideration, notice is hereby given that an extension of time for filing comments on the June 22 ANOPR is granted, to and including September 14, 2007. Kimberly D. Bose, Secretary. [FR Doc. E7-15276 Filed 8-7-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 35 and 37 [Docket Nos. RM05-17-002 and RM05-25-002] Preventing Undue Discrimination and Preference in Transmission Service Issued July 27, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice allowing Post-Technical Conference comments. SUMMARY: On July 30, 2007, the Federal Energy Regulatory Commission convened a technical conference addressing issues related to lead-time for undesignated network resources in order to make firm third-party sales and the eligibility of on-system seller's choice and system sales to be designated as network resources. This notice provides an opportunity for interested parties to file written comments in relation to the issues that were the subject of the technical conference. FOR FURTHER INFORMATION CONTACT: Thomas E. Dautel, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,

(202)502-6196. SUPPLEMENTARY INFORMATION: Notice Allowing Post-Technical Conference Comments August 1, 2007. Pursuant to the Commission's June 26, 2007 Order in this proceeding, 119 FERC ¶ 61,322 (2007), a staff technical conference was convened on Monday, July 30, 2007, from 9 a.m. to 3 p.m. at the offices of the Federal Energy Regulatory Commission. The technical conference addressed issues related to the minimum lead-time for undesignating network resources in order to make firm third-party sales and the eligibility of on-system seller's choice and system sales to be designated as network resources, as clarified in Order No. 890. 1 1 *Preventing Undue Discrimination and Preference in Transmission Service,* Order No. 890, 72 FR 12266 (March 15, 2007), FERC Stats. & Regs. ¶ 31,241 at PP 1483 and 1557-59 (2007), *reh'g pending.* All interested persons are invited to file written comments no later than August 13, 2007 in relation to the issues that were the subject of the technical conference. Those filing comments are specifically encouraged to identify alternative ways to address the minimum lead-time for undesignating network resources in order to make firm third-party sales and the eligibility of on-system seller's choice and system sales to be designated as a network resource without impairing the ability of transmission providers to calculate available transfer capability

(ATC)or unduly discriminating among classes of transmission customers. Comments may either be filed on paper or electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* For further information, please contact Tom Dautel at

(202)502-6196 or e-mail at *thomas.dautel@ferc.gov.* Kimberly D. Bose, Secretary. [FR Doc. E7-15401 Filed 8-7-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 260 and 284 [Docket Nos. RM07-10-000 and AD06-11-000] Transparency Provisions of Section 23 of the Natural Gas Act; Transparency Provisions of the Energy Policy Act August 2, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice of Proposed Rulemaking: Extension of reply comment period. SUMMARY: On April 19, 2007, the Federal Energy Regulatory Commission issued a Notice of Proposed Rulemaking

(NOPR)concerning new rules to facilitate price transparency in markets for the sale and transportation of physical natural gas in interstate commerce. 72 FR 20791 (April 27, 2007). The Commission is extending the date for filing reply comments on the NOPR at the request of Enbridge Energy Company, Inc. DATES: Reply comments are now due August 23, 2007. ADDRESSES: You may submit comments identified by Docket No. RM07-10-000, by one of the following methods: • *Agency Web Site: http://ferc.gov.* Follow the instructions for submitting comments via the eFiling link found in the Comment Procedures Section of the preamble. • *Mail:* Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Please refer to the Comment Procedures Section of Docket Nos. RM07-10-000 and AD06-11-000 in the preamble of the April 19, 2007 NOPR for additional information on how to file paper comments. FOR FURTHER INFORMATION CONTACT: Stephen J. Harvey (Technical), 888 First Street NE., Washington, DC 20426,

(202)502-6372, *Stephen.Harvey@ferc.gov.* Eric Ciccoretti (Legal), 888 First Street NE., Washington, DC 20426,

(202)502-8493, *Eric.Ciccoretti@ferc.gov.* SUPPLEMENTARY INFORMATION: Notice of Extension of Time August 2, 2007. On July 11, 2007, Enbridge Energy Company, Inc. filed a motion for an extension of time to file reply comments to the Notice of Proposed Rulemaking

(NOPR)issued April 19, 2007, in the above-referenced proceeding, 72 FR 20791 (Apr. 26, 2007), FERC. Stats. and Regs. ¶ 32,614 (2007). The motion states that additional time is needed in order to fully consider the discussions that took place at the Transparency workshop on July 24, 2007, so as to prepare more meaningful reply comments and to provide time to respond to the issues raised during the Workshop discussions and in various initial comments filed by the parties. Upon consideration, notice is hereby given that an extension of time for filing reply comments on the NOPR is granted to and including August 23, 2007, thirty days after the Workshop. Kimberly D. Bose, Secretary. [FR Doc. E7-15392 Filed 8-7-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 385 [Docket No. RM07-16-000] Filing Via the Internet August 1, 2007. AGENCY: Federal Energy Regulatory Commission. ACTION: Notice of Technical Conference. SUMMARY: The Federal Energy Regulatory Commission is hosting a technical conference to discuss the proposed changes to electronic filing and electronic file and document format instructions that are associated with the Commission's Notice of Proposed Rulemaking issued July 27, 2007. 72 FR 42330 (August 2, 2007). The conference will be held from 9 a.m. to 4 p.m. in the offices of the Commission. DATES: Conference will be held on August 22, 2007. FOR FURTHER INFORMATION CONTACT: Wilbur Miller, 888 First Street, NE., Washington, DC 20426, Telephone:

(202)502-8953, E-mail: *wtmiller@ferc.gov.* SUPPLEMENTARY INFORMATION: Notice of Technical Conference August 1, 2007. Take notice that on August 22, 2007, Federal Energy Regulatory Commission (Commission) staff will host a technical conference to discuss the proposed changes to electronic filing and electronic file and document format instructions that are associated with the Notice of Proposed Rulemaking

(NOPR)on expanding electronic filing, RM07-16-000, that FERC issued on July 27, 2007. *Filing Via the Internet,* 120 FERC ¶ 61,081 (2007). The technical conference will be held from 9 a.m. until 4 p.m.

(EDT)in a room to be designated at the offices of the Commission, 888 First Street, NE., Washington, DC 20426. The conference will be conducted in two sessions. Session 1 will present an overview of the electronic filing submission instructions that will apply universally. Session 2 will be divided into sections that will discuss information that is specific to each industry. The draft electronic filings and electronic file and document format instructions are available through the calendar of events for this technical conference on *http://www.ferc.gov.* The conference is open to the public and does not require pre-registration. FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to *accessibility@ferc.gov* or call toll free 1-866-208-3372 (voice) or 202-208-1659 (TTY), or send a FAX to 202-208-2106 with the required accommodations. Arrangements will be made for participation in the technical conference via telephone. For more information about this conference and to make telephone conference call arrangements, please contact Wilbur Miller, Office of General Counsel at

(202)502-8953 or *Wilbur.Miller@ferc.gov.* Kimberly D. Bose, Secretary. [FR Doc. E7-15409 Filed 8-7-07; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0445; FRL-8138-8] Acephate, Chlorpyrifos, Fenbutatin-Oxide (Hexakis), Metolachlor, MCPA, Pyrethrins and Triallate; Proposed Tolerance Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revoke certain tolerances for the herbicide metolachlor, and the insecticides acephate, chlorpyrifos, and pyrethrins. Also, EPA is proposing to modify certain tolerances for the herbicide metolachlor, and the insecticides acephate, chlorpyrifos, and pyrethrins. In addition, EPA is proposing to establish new tolerances for the herbicides metolachlor, MCPA, and triallate, and the insecticides chlorpyrifos, fenbutatin-oxide (hexakis), and pyrethrins. The regulatory actions proposed in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and tolerance reassessment program under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q). DATES: Comments must be received on or before October 9, 2007. ADDRESSES: Submit your comments, identified by docket identification

(ID)number EPA-HQ-OPP-2007-0445, 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

(703)305-5805. • *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2007-0445. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. • *Docket* : All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Jane Smith, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460-0001; telephone number:

(703)308-0048; e-mail address: *smith.jane-scott@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. C. What Can I do if I Wish the Agency to Maintain a Tolerance that the Agency Proposes to Revoke? This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the **Federal Register** under FFDCA section 408(f) if needed. The order would specify data needed and the time frames for its submission, and would require that within 90 days some person or persons notify EPA that they will submit the data. If the data are not submitted as required in the order, EPA will take appropriate action under FFDCA. EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings. II. Background A. What Action is the Agency Taking? EPA is proposing to revoke, remove, modify, and establish specific tolerances for residues of the acephate, chlorpyrifos, fenbutatin-oxide, metolachlor, MCPA, pyrethrins, and triallate in or on commodities listed in the regulatory text. EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision

(RED)and Report of the Food Quality Protection Act

(FQPA)Tolerance Reassessment Progress and Risk Management Decision

(TRED)for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419, telephone 1-00-490-9198; fax 1-513-489-8695; internet at *http://www.epa.gov/ncepihom* and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, telephone 1-800-553-6847 or 703-605-6000; internet at *http://www.ntis.gov* . Electronic copies of REDs and TREDs are available on the internet and in the public dockets EPA-HQ-OPP-2007-0445 or for EPA-HQ-OPP-2004-0154 (fenbutatin-oxide/hexakis), EPA-HQ-OPP-2002-0223 (metolachlor), EPA-HQ-OPP-2004-0156 (MCPA), and EPA-HQ-OPP-2005-0043 (pyrethrins), EPA-HQ-OPP-2006-0586 (triallate) at *http://www.regulations.gov* and at *http://www.epa.gov/pesticides/reregistration/status.htm* . The selection of an individual tolerance level is based on crop field residue studies designed to produce the maximum residues under the existing or proposed product label. Generally, the level selected for a tolerance is a value slightly above the maximum residue found in such studies, provided that the tolerance is safe. The evaluation of whether a tolerance is safe is a separate inquiry. EPA recommends the raising of a tolerance when data show that: 1. Lawful use (sometimes through a label change) may result in a higher residue level on the commodity; and 2. The tolerance remains safe, notwithstanding increased residue level allowed under the tolerance. In REDs, Chapter IV on “Risk management, Reregistration, and Tolerance reassessment” typically describes the regulatory position, FQPA assessment, cumulative safety determination, determination of safety for U.S. general population, and safety for infants and children. In particular, the human health risk assessment document which supports the RED describes risk exposure estimates and whether the Agency has concerns. In TREDs, the Agency discusses its evaluation of the dietary risk associated with the active ingredient and whether it can determine that there is a reasonable certainty (with appropriate mitigation) that no harm to any population subgroup will result from aggregate exposure. EPA also seeks to harmonize tolerances with international standards set by the Codex Alimentarius Commission, as described in Unit III. Explanations for proposed modifications in tolerances can be found in the RED and TRED document and in more detail in the Residue Chemistry Chapter document which supports the RED and TRED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record and EPA's electronic copies are available through EPA's electronic public docket and comment system, regulations.gov at *http://www.regulations.gov* You may search for docket number EPA-HQ-OPP-2007-0445 and also EPA-HQ-OPP-2004-0154 (fenbutatin-oxide/hexakis), EPAHQ-OPP-2002-0223 (metolachlor), EPA-HQ-OPP-2004-0156 (MCPA), and EPA-HQ-OPP-2005-0043 (pyrethrins), EPA-HQ-OPP-2006-0586 (triallate), then click on that docket number to view its contents. EPA has determined that the aggregate exposures and risks are not of concern for the above mentioned pesticide active ingredients based upon the data identified in the RED or TRED which lists the submitted studies that the Agency found acceptable. EPA has found that the tolerances that are proposed in this document to be modified, are safe; i.e., that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with FFDCA section 408(b)(2)(C). (Note that changes to tolerance nomenclature do not constitute modifications of tolerances). These findings are discussed in detail in each RED or TRED. The references are available for inspection as described in this document under SUPPLEMENTARY INFORMATION . In addition, EPA is proposing to revoke certain specific tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide. It is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance to cover residues in or on imported commodities or domestic commodities legally treated. 1. *Acephate.* Tolerances for residues of acephate in/on plant and animal commodities in 40 CFR 180.108 are currently expressed in terms of the combined residues of acephate and methamidophos (O,S-dimethylphosphura-midothioate). Although the available plant and animal metabolism studies indicate that the residues of concern are acephate and methamidophos, the Agency has determined that acephate tolerances should be expressed in terms of acephate *per se* for permanent and regional tolerances because residues of methamidophos (O,S-dimethylphosphura-midothioate) resulting from acephate applications are regulated under 40 CFR 180.315 and this change also provides compatibility between the EPA and CODEX in terms of the residue definition for acephate. Since the tolerance expression is being revised to acephate *per se* , the terminology “of which no more than 1 part per million

(ppm)or 0.5 ppm is O,S-dimethyl acetylphosphoramidothioate” associated with certain tolerances is no longer needed in 40 CFR 180.108. Lastly, for clarity, the Agency determined a footnote is necessary stating that residues of the acephate metabolite, methamidophos, are regulated under 40 CFR part 180.315. Therefore, the Agency proposes revising the residues for regulation in 40 CFR part 180.108(a)(1), (a)(2) and

(c)from “acephate (O,S-dimethyl acetylphosphoramidothioate) and its cholinesterase-inhibiting metabolite O,S-dimethylphosphura-midothioate” to “acephate *per se* (O,S-dimethyl acetylphosphoramidothioate)” and remove the terminology “of which no more than 1 ppm, 0.5 ppm, or 0.1 ppm is O,S-dimethyl acetylphosphoramidothioate” from the tolerances on bean (succulent and dry form), Brussels sprouts, cauliflower, celery, cranberry, lettuce, mint hay, and pepper and adding in 40 CFR 180.108(a)(1) a footnote. 1 Residues of the acephate metabolite, methamidophos, are regulated under 40 CFR 180.315. Based on the available field trial data that indicate residues of acephate average 0.16 ppm in or on cottonseed and 0.32 ppm in/on cottonseed meal (concentration factor 2x) and hulls (4x), the Agency determined that the tolerances should be decreased to 0.5 ppm in/on cottonseed and 1.0 ppm in/on cottonseed hulls and cottonseed meal. Based on the available field trial data that indicate residues of acephate average 9.5 ppm in/on mint, the Agency determined that the tolerance should be increased to 27 ppm in/on mint hay. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes decreasing tolerances in 40 CFR 180.108(a)(1) for residues of acephate per se in/on cotton, undelinted seed from 2 to 0.5 ppm; cotton, hulls from 4 to 1.0 ppm; cotton, meal from 8 to 1.0 ppm; increasing the tolerance in/on mint, hay from 15.0 to 27 ppm; and revising mint, hay to peppermint, tops and spearmint, tops. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on the reevaluation of the soybean processing data that indicate residues of acephate do not concentrate and will not exceed the tolerance on soybeans, the Agency has determined that a separate tolerance is not needed on soybean meal. Therefore, EPA proposes revoking the tolerance in 40 CFR 180.108(a)(1) for the residues of acephate *per se* in/on soybean, meal at 4 ppm. EPA is revising commodity terminology to conform to current Agency practice and removing the term “additive” because pesticides are no longer defined as food additives in FFDCA. Therefore, the Agency proposes revising tolerances in 40 CFR 180.108(a)(1) from bean (succulent and dry form) to bean, dry, seed and bean, succulent; and soybean to soybean, seed; in 40 CFR 180.108(a)(2) delete the term “additive”; in 40 CFR 180.108(c) from macadamia nut to nut, macadamia and correcting 180.1(n) to 180.1(m). The proposed tolerance actions herein for acephate, to implement the recommendations of the acephate TRED will result in harmonized residues for regulation between the U. S. and Codex. 2. *Chlorpyrifos.* Based on available field trial data that indicate residues of chlorpyrifos are less than the level of detection (0.01 ppm) in/on apples, and less than 0.05 ppm in/on corn, the Agency determined that the tolerances should be decreased to 0.01 ppm in/on apple and 0.05 ppm in/on corn, sweet, kernel plus cob with husks removed. Based on the available processing data that indicate residues of chlorpyrifos concentrate in corn oil by a factor of 3.3x, the Agency has determined the tolerance in/on refined corn oil should be decreased to 0.25 ppm. Based on revisions for calculating processed food tolerances, the Agency has determined the tolerance in/on citrus oil should be decreased from 25 ppm to 20 ppm. Based on available field trial data that indicate residues of chlorpyrifos are less than 0.5 ppm in/on sorghum forage and grain; less than 2.0 ppm in/on sorghum stover and less than 1.0 ppm in/on sunflower seeds, the Agency determined that the tolerances should be decreased to 0.5 ppm in/on sorghum forage; 0.5 ppm in/on sorghum, grain, grain; 2.0 ppm in/on sorghum, grain, stover; and 0.1 ppm in/on sunflower, seed. The Agency is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes decreasing the tolerances in 40 CFR 180.342(a)(1) for the combined chlorpyrifos residues of concern in/on apple from 1.5 to 0.01 ppm; corn, sweet, kernel plus cob with husks removed from 0.1 to 0.05 ppm; corn, field, refined oil from 3.0 to 0.25 ppm; citrus, oil from 25.0 to 20 ppm; sorghum, forage from 1.5 to 0.5 ppm; sorghum, grain, grain from 0.75 to 0.50 ppm; sorghum, grain, stover from 6.0 to 2.0 ppm and sunflower, seed from 0.25 to 0.1 ppm; and revise sorghum, forage to sorghum, grain, forage. Because there are currently no active registrations for uses of chlorpyrifos in/on blueberries and tomatoes, the Agency determined that the tolerances in/on blueberry and tomato are no longer needed. The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revoking the tolerances in 40 CFR 180.342(a)(1) for the combined chlorpyrifos residues of concern in/on blueberry at 2 ppm (of which no more than 1 ppm is chlorpyrifos) and tomato at 0.5 ppm; and revising fruit, citrus to fruit, citrus, group 10; and onion, dry bulb to onion, bulb. Based on available field trial data that indicate average residues of chlorpyrifos at 0.11 ppm and a concentration factor of 1.7x in/on peanut oil, the Agency determined that the tolerance in/on peanut oil should be decreased to 0.2 ppm and revise the tolerance to conform to current Agency commodity terminology. Therefore, EPA proposes decreasing and revising the tolerance in 40 CFR 180.342(a)(2) for chlorpyrifos *per se* residues of concern in/on peanut, oil from 0.4 to peanut, refined oil at 0.2 ppm. Based on revisions for calculating processed food tolerances, the Agency has determined the tolerance in/on wheat milling fractions will be covered by the current wheat, grain tolerance of 0.5 ppm; therefore, the tolerance in/on “milling fractions (except flour) of wheat” are no longer needed. Because the grazing of livestock and feeding of soybean forage and hay to livestock is prohibited for foliar type applications to soybeans, the Agency determined that the tolerance for soybean forage is no longer needed. Banana pulp is no longer regulated as a commodity in accordance with Table 1. Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at *http://www.epa.gov/opptsfrs/publications/OPPTS Harmonized/860 Residue Chemistry Test Guidelines/Series* ; consequently, the Agency has determined that a banana pulp tolerance is no longer needed. Therefore, EPA proposes removing the tolerances in 40 CFR 180.342(a)(2) for chlorpyrifos per se residues of concern in/on milling fractions (except flour) of wheat at 1.5 ppm; soybean, forage at 0.7 ppm; and banana pulp at 0.01 ppm. The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revising the tolerances in 40 CFR 180.342(a)(2) for chlorpyrifos *per se* residues of concern in/on cattle, meat and meat byproducts at 0.05 ppm; to cattle, meat at 0.05 ppm; and cattle, meat byproducts at 0.05 ppm; cherry to cherry, sweet and cherry, tart; corn, forage and fodder at 8 ppm to corn, field, forage; corn, field, stover; corn, sweet, forage; and corn, sweet, stover each at 8 ppm; goat, meat and meat byproducts at 0.05 ppm; to goat, meat at 0.05 ppm; and goat, meat byproducts at 0.05 ppm; hog, meat and meat byproducts at 0.05 ppm; to hog, meat at 0.05 ppm; and hog, meat byproducts at 0.05 ppm; sheep, meat and meat byproducts at 0.05 ppm; to sheep, meat at 0.05 ppm; and sheep, meat byproducts at 0.05 ppm; horse, meat, fat, and meat byproducts at 0.25 ppm; to horse, fat at 0.25 ppm; horse, meat at 0.25 ppm; and horse, meat byproducts at 0.25 ppm; mint, hay to peppermint, tops and spearmint, tops; mint oil to peppermint, oil and spearmint, oil; plum to plum, prune, fresh; poultry, meat, fat, and meat byproducts (inc. turkeys) at 0.1 ppm; to poultry, fat at 0.1 ppm; poultry, meat at 0.1 ppm;, and poultry, meat byproducts at 0.1 ppm; rutabagas to rutabaga; turnip, greens to turnip, tops; and turnip to turnip, roots. Currently 40 CFR 180.342(a)(1) regulates the combined residues of chlorpyrifos and its metabolite 3,5,6-trichloro-2-pyridinol (TCP). The Agency has concluded that the 3,5,6-trichloro-2-pyridinol

(TCP)metabolite is not of toxicological concern and in accordance with FFDCA §408(a)(3) no longer needs to be regulated. The residue for regulation is chlorpyrifos per se which is the regulated residue in 40 CFR 180.342(a)(2). Therefore, EPA proposes transferring the tolerances in 40 CFR 180.342(a)(1) to (a)(2) and changing the designations of 40 CFR 180.342 (a)(2), (a)(3), and (a)(4) to 40 CFR 180.342(a)(1), (a)(2), and (a)(3). The established crop group tolerance for tree nut group 14 should be revoked because the use rates are not identical, i.e. the rate on pecans differs. In lieu of the tree nut crop group, the Agency has determined that individual tolerances should be established for hazelnut (the preferred commodity term), and pecan each at 0.2 ppm and there are currently tolerances in place for almonds and walnuts. Therefore, EPA proposes revoking the tolerance in newly proposed 40 CFR 180.342(a)(1) for residues of chlorpyrifos per se in/on nut, tree, group 14 and establishing the tolerances for hazelnut at 0.2 ppm; and pecan at 0.2 ppm. There is currently a tolerance for “vegetable, brassica, leafy, group 5 at 2.0 ppm which covers broccoli; Bussels sprouts; cabbage; cabbage Chinese; and cauliflower each at 1 ppm; therefore, the Agency has determined that the individual tolerances on these commodities are no longer needed and vegetable, brassica, leafy, group 5 at 2.0 ppm should be decreased to 1 ppm consistent with the individual tolerance levels. Further, the footnote (of which no more than 1.0 ppm is chlorpyrifos) associated with the vegetable, brassica, leafy, group 5 at 12.0 ppm is no longer needed since the residues of concern are chlorpyrifos *per se* . There is currently a tolerance for “legume vegetables, succulent or dried (except soybean)” at 0.05 ppm which covers lima beans and succulent snap beans; therefore, the Agency has determined that the tolerances for bean, lima and bean, snap, succulent are no longer needed. Additionally, the milk fat tolerance covers the whole milk tolerance and the whole milk tolerance is no longer needed. EPA is also revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes removing the tolerances in newly proposed 40 CFR 180.342(a)(1) for residues of chlorpyrifos per se in/on broccoli; Bussels sprouts; cabbage; cabbage, chinese; and cauliflower each at 1.0 ppm; bean, lima and bean, snap, succulent each at 0.05 ppm; the footnote 1 of which no more than 1.0 ppm is chlorpyrifos; milk, whole at 0.01 ppm; revise “legume vegetables, succulent or dried (except soybean)” to “vegetable, legume, group 6, except soybean”; milk fat to milk, fat (reflecting 0.01 ppm in whole milk); and decreasing vegetable, brassica, leafy, group 5 from 2.0 ppm to 1.0 ppm. Based on the available apple processing data that indicate chlorpyrifos concentrates at 2.1x in wet apple pomace, the Agency has determined that a tolerance should be established in/on apple, wet pomace at 0.02 ppm. Based on available field trial studies that indicate residues of chlorpyrifos are less than 1 ppm in/on lettuce, the Agency determined a tolerance should be established in/on lettuce at 1 ppm. Therefore, EPA proposes establishing a tolerance in newly proposed 40 CFR 180.342(a)(1) for residues of chlorpyrifos *per se* in/on apple, wet pomace at 0.02 ppm and lettuce at 1.0 ppm. Based on current U.S. use patterns of chlorpyrifos on grapes the residues are expected to be less than the level of quantitation ( < 0.01 ppm); therefore, the Agency has determined the tolerance should be decreased in/on grapes to 0.01 ppm. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.342(c)(1) for residues of chlorpyrifos per se in/on grape from 0.05 to 0.01 ppm. Currently 40 CFR 180.342(c)(1) regulates the combined residues of chlorpyrifos and its metabolite 3,5,6-trichloro-2-pyridinol (TCP). The Agency has concluded that the 3,5,6-trichloro-2-pyridinol

(TCP)metabolite is not of toxicological concern and no longer needs to be regulated. The residue for regulation is chlorpyrifos per se which is the regulated residue in 40 CFR 180.342(c)(2). Additionally, because there are currently no active registrations having uses on leeks, cherimoya, feijoa, and sapote, the Agency has determined the tolerances on leek, cherimoya, feijoa and sapote should be revoked. Therefore, EPA proposes transferring the tolerances in 40 CFR 180.342(c)(1) in/on asparagus, grape and leek (of which no more than 0.2 ppm is chlorpyrifos) to (c)(2) for residues of chlorpyrifos *per se* ; revoking the tolerances in proposed recodified 40 CFR 180.342(c)(2) in/on leek (of which no more than 0.2 ppm is chlorpyrifos) at 0.5 ppm, cherimoya at 0.05 ppm, feijoa (pineapple guava) at 0.05 ppm and sapote at 0.05 ppm; and redesignate 40 CFR 180.342(c)(2) to 40 CFR 180.342(c). The proposed tolerance actions herein for chlorpyrifos, to implement the recommendations of the chlorpyrifos TRED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on broccoli (vegetable, brassica, leafy, group 5) and grape, because of differences in good agricultural practices. However, compatibility exists for eggs, field corn (maize) and will exist between the proposed reassessed U.S. tolerances and Codex MRLs for chlorpyrifos residues in or on Chinese cabbage, citrus fruits, sorghum, and cabbage head. 3. *Fenbutatin-oxide (Hexakis).* The Interregional Research Project No. 4 (IR-4) submitted a petition (PP 6E7052) which published as a notice of filing document in the **Federal Register** of July 5, 2006 (71 FR 38153) (FRL-8074-1), requesting a tolerance of 0.5 ppm for residues of fenbutatin-oxide in pistachio. Currently, there are individual tolerances for almonds, pecans, and walnuts each at 0.5 ppm. The Agency proposed that the data for almond, pecan, and walnut support a crop group tolerance for the nut, tree, group 14 at 0.5 ppm in a document published in the **Federal Register** of August 4, 2004 (69 FR 47051) (FRL-7368-7). The Agency has determined that the data to support the tree nut crop group should also be used to support a separate tolerance for pistachio at 0.5 ppm. Therefore, EPA proposes establishing a tolerance in 40 CFR 180.362(a) for the combined fenbutatin-oxide residues of concern in/on pistachio at 0.5 ppm. Currently, there are no Codex MRLs in place for fenbutatin-oxide on pistachio. 4. *MCPA.* Based on available data that indicate MCPA residues of concern as high as 2.6 ppm, the Agency determined that a tolerance should be established in/on aspirated grain fractions at 3.0 ppm. This action was inadvertently omitted in the proposal of September 27, 2006 (71 FR 56429)(FRL-8089-5). Therefore, EPA proposes establishing the tolerance in 40 CFR 180.339(a)(1) for the combined MCPA residues of concern in/on grain, aspirated fractions at 3.0 ppm. 5. *Metolachlor (including S-Metolachlor).* Tolerances for residues of metolachlor in/on barley, buckwheat, millet, oats, rice, rye, wheat, and the nongrass livestock feeds group were initially established to cover residues of metolachlor in these crops when planted as rotational crops following a primary crop that was treated with metolachlor; therefore, the Agency has determined that these tolerances should be considered inadvertent or indirect residues in a new subsection 40 CFR 180.368(d)(1). Further, based on available field trial data that indicate the combined metolachlor residues of concern were as high as 0.54 ppm in/on nongrass forage and < 0.47 ppm in/on nongrass hay, the Agency determined the tolerance should be decreased to 1.0 ppm in/on nongrass animal feed (forage, fodder, straw, hay), group 18. The Agency is also revising the commodity terminology for certain tolerances to current Agency practice. Therefore, EPA proposes transferring tolerances from 40 CFR 180.368(a)(1) to a new section designated 40 CFR 180.368 (d)(1) for the combined residues (free and bound) of the herbicide metolachlor [(2-chloro- *N* -(2-ethyl-6-methylphenyl)-N-(2-methoxy-1-methylethyl)acetamide] and its metabolites, determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound, in or on barley, grain at 0.1; barley straw at 0.5 ppm; buckwheat, grain at 0.1 ppm; millet, fodder at 0.5 ppm; millet, forage at 0.5 ppm; millet, grain at 0.1 ppm; oat, forage 0.5 ppm; oat, grain at 0.1 ppm; oat, straw at 0.5 ppm; rice, grain at 0.1 ppm; rice, straw at 0.5 ppm; rye, forage 0.5 ppm; rye, grain at 0.1 ppm; rye, straw at 0.5 ppm; wheat, forage at 0.5 ppm; wheat, grain at 0.1 ppm; and wheat, straw at 0.5 ppm; decreasing and revising nongrass animal feed (forage, fodder, straw, and hay), group 18 from 3.0 to animal feed, nongrass, group 18 at 1.0 ppm; revising millet, fodder to millet, straw; and changing the designation of 40 CFR 180.368(d) to 40 CFR 180.368(d)(2). Extrapolating the residue data from the ruminant feeding study to a 1x feeding level for cattle, goats, horses, and sheep the maximum combined residues of concern for metolachlor would be 0.011 ppm in fat, 0.057 ppm in liver, 0.016 ppm in meat and < 0.04 ppm in meat byproducts; therefore, the Agency determined that the tolerances should be increased for cattle, goat, horse, and sheep fat to 0.04 ppm, liver to 0.10 ppm, meat to 0.04 ppm, and meat byproducts (except kidney and liver) at 0.04 ppm. Based on feeding studies in hens dosed up to 3.9x the maximum theoretical dietary burden, metolachlor residues of concern were not detected ( < 0.04 ppm the combined levels of quantitation (LOQ)) in eggs, liver, meat and meat byproducts; therefore, the Agency determined the tolerance for eggs, poultry meat, poultry fat, and poultry meat byproducts should each be increased to 0.04 ppm and revoked for poultry liver. Therefore, EPA proposes increasing the tolerances in 40 CFR 180.368(a)(1) for the combined metolachlor residues of concern in/on cattle, fat; goat, fat; horse, fat; and sheep, fat from 0.02 to 0.04 ppm; cattle, liver; goat, liver; horse, liver; and sheep, liver from 0.05 to 0.10 ppm; cattle, meat; goat, meat; horse, meat; and sheep, meat from 0.02 to 0.04 ppm; cattle, meat byproducts (except kidney and liver); goat, meat byproducts (except kidney and liver); horse, meat byproducts (except kidney and liver); and sheep, meat byproducts (except kidney and liver) from 0.02 to 0.04 ppm; egg; poultry, fat; poultry, meat; and poultry, meat byproducts (except liver) from 0.02 to 0.04 ppm; revoking poultry, liver at 0.05 ppm and revising poultry meat byproducts (except liver) to poultry meat byproducts. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. There are no longer any active registrations with uses of metolachlor on cabbage, celery, stone fruits, and bell peppers; therefore, the Agency determined the tolerances for these commodities are no longer needed. The tolerances for sorghum cover the tolerances for milo; therefore, the tolerances for milo are not needed. Rice forage and peanut forage are no longer regulated commodities in accordance with Table 1.—Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at *http://www.epa.gov/opptsfrs/publications/OPPTS Harmonized/860 Residue Chemistry Test Guidelines/Series* ; consequently, the Agency has determined that the rice, forage and peanut forage tolerances are no longer needed. Therefore, EPA proposes revoking the tolerances in 40 CFR 180.368 (a)(1) for the combined residues of metolachlor in/on cabbage at 1.0 ppm; celery at 0.1 ppm; fruit, stone, group 12 at 0.1 ppm; bell, pepper at 0.1 ppm; milo, fodder 0.5 ppm; milo, forage at 0.5 ppm; milo, grain at 0.1 ppm; peanut, forage at 30 ppm and rice, forage at 0.5 ppm. Based on the available field trial data that indicate the combined residues of metolachlor were as high as 2.28 ppm on field corn stover, 5.54 ppm in/on sweet corn stover, 3.02 ppm on field corn forage, and 5.75 ppm in/on sweet corn forage, the Agency determined the tolerances for corn, fodder and corn, forage should be decreased to 6.0 ppm. Based on the available field trial data that indicate the combined residues of metolachlor were as high as 0.19 ppm in/on peanut, 16.5 ppm in/on peanut hay, 0.45 ppm in/on sorghum forage, 3.19 ppm in/on sorghum fodder, and 4.37 ppm in/on soybean forage; the Agency determined the tolerances should be decreased to 0.20 ppm in/on peanut, 20.0 ppm in/on peanut hay; 5.0 ppm in /on soybean, forage, and 1.0 ppm in/on sorghum, forage and increased to 4.0 ppm in/on sorghum fodder. The EPA is also revising commodity terminology. Therefore, EPA proposes decreasing the tolerances in 40 CFR 180.368 (a)(1) for the combined residues of metolachlor in/on corn, fodder from 8.0 to 6.0 ppm; corn, forage from 8.0 to 6.0 ppm; peanut from 0.5 to 0.20 ppm; and peanut, hay from 30 to 20.0 ppm; and sorghum, forage from 2.0 to 1.0 ppm; soybean, forage from 8.0 to 5.0 ppm; increasing sorghum, fodder from 2.0 to 4.0 ppm; and revising corn, fodder to corn, field, stover and corn, sweet, stover; corn, forage to corn, field, forage and corn, sweet, forage; corn, grain to corn, field, grain; sorghum, forage to sorghum, grain, forage; sorghum, fodder to sorghum, grain, stover; sorghum, grain to sorghum, grain, grain and soybean to soybean, seed. Based on the available field trial data that indicate the metolachlor residues of concern were as high as 4.37 ppm in/on soybean forage and 6.9 ppm in/on soybean hay, the Agency determined tolerances should be separated and decreased to 5.0 ppm on soybean, forage and maintained at 8.0 ppm in/on soybean hay. Therefore, EPA proposes decreasing and separating the tolerances in 40 CFR 180.368(a)(1) for the combined metolachlor residues of concern from soybean, forage and hay at 8.0 ppm to soybean, forage at 5.0 ppm and soybean, hay at 8.0 ppm. EPA is revising commodity terminology to current Agency practice. The current terminology for seed and pod vegetables (except soybean) crop group is vegetable, legume, edible podded, subgroup 6A; pea and bean, succulent shelled, subgroup 6B; and pea and bean, dried shelled, except soybean, subgroup 6C. Based on the available field trial data that indicate the combined residues of metolachlor were as high as 0.11 ppm in/on dried shelled peas and beans and 0.44 ppm in/on edible-podded legumes, the Agency determined the tolerances should be increased on edible-podded legumes from 0.3 to 0.5 ppm and decreased in/on dried shelled peas and beans from 0.3 to 0.10 ppm. Therefore, EPA proposes revising the tolerances in 40 CFR 180.368(a)(1) for the combined metolachlor residues of concern in/on seed and pod vegetables (except soybean) at 0.3 ppm to vegetable, legume, edible podded, subgroup 6A at 0.5 ppm; pea and bean, succulent shelled, subgroup 6B at 0.3 ppm; and pea and bean, dried shelled, subgroup 6C, except soybean at 0.10 ppm. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. Based on the available field trial and processing data that indicate the metolachlor residues of concern were as high as 3.2 ppm in/on cotton gin byproducts and < 3.83 ppm in/on peanut meal, the Agency determined tolerances should be established in/on cotton, gin byproducts at 4.0 ppm and peanut, meat at 0.40 ppm. Therefore, EPA proposes establishing tolerances in 40 CFR 180.368(a)(1) for the combined metolachlor residues of concern in/on cotton, gin byproducts at 4.0 ppm and peanut, meal at 0.40 ppm. There are no longer any active registered uses of metolachlor in/on dry bulb onions, chili peppers and cubanelle peppers; therefore, the tolerances are no longer needed. EPA is also revising commodity terminology. Finally, the regional registrations are defined in 40 CFR 180.1(m) rather than 180.1(n) as currently appears in the 40 CFR 180.368(c). Therefore, EPA proposes revoking the tolerances in 40 CFR 180.368 (c)(1) for the combined metolachlor residues of concern in/on onion, dry bulb; pepper, chili; and pepper, cubanelle; and revising in 40 CFR 180.368(c)(1) and

(2)the terms pepper, tabasco to pepper, nonbell and 180.1(n) to 180.1(m). Subsequent to the revised TRED, the tolerance expression for S-metolachlor was modified to include the R-enantiomer; therefore, the Agency has determined the tolerances in 40 CFR 180.368(a)(2) and 40 CFR 180.368(a)(3) should be combined and regulated in accordance with the tolerance expression in 40 CFR 180.368(a)(3) which includes regulation of the R-enantiomer. Therefore, EPA proposes combining 40 CFR 180.368(a)(2) and (a)(3) by transferring the tolerances from 40 CFR 180.368(a)(2) on asparagus at 0.1 ppm; beet, sugar, molasses at 2.0 ppm; beet, sugar, roots at 0.5 ppm; beet, sugar, tops at 15 ppm; grass, forage at 10 ppm; grass, hay at 0.2 ppm; spinach at 0.5 ppm; sunflower, seed at 0.5 ppm; sunflower, meal at 1 ppm to 40 CFR 180.368(a)(3) and changing the designation of 40 CFR 180.368(a)(3) to 40 CFR 180.368(a)(2). EPA is revising commodity terminology to current Agency practice. Therefore, EPA proposes revising the tolerance in the proposed recodified 40 CFR 180.368(d)(2) from nongrass, animal feed (forage, fodder, straw, hay) group 18 to animal feed, nongrass, group 18 and revising the tolerance in proposed recodified 40 CFR 180.368 (a)(2) from vegetable, fruiting group 8, (except tabasco pepper) to vegetable, fruiting, group 8, except nonbell pepper and onion, dry bulb to onion, bulb. Currently, there are no Codex MRLs in place for metolachlor. 6. *Pyrethrins.* Currently, the tolerance expression in 40 CFR 180.128(a)(1) is for the residues of the insecticide pyrethrins (insecticidally active principles of chrysanthemum cinerariaefolium). Since residues of pyrethrins are identified by a marker compound, the Agency has determined that tolerances in 40 CFR 180.128(a)(1) should be updated. Therefore, EPA proposes the tolerance expression be revised in 40 CFR 180.128(a)(1) for residues of pyrethrins ((1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienylcyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (pyrethrin 1), (1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropane-carboxylate (pyrethrin 2), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (cinerin 1), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (cinerin 2), (1S)-2-methyl-4-oxo-3-(2Z)-2-pentenyl-2-cyclopenten-1-yl (1R, 3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (jasmolin 1), and (1S)-2-methyl-4-oxo-3-(2Z)-pentenyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (jasmolin 2)), the insecticidally active principles of Chrysanthemum cinerariaefolium, which are measured as cumulative residues of pyrethrin 1, cinerin 1, and jasmolin 1. The last active product involving uses of pyrethrins on food stored in multi-walled paper or cloth bags was cancelled October 15, 1989. Therefore, the Agency has determined that the stored food tolerances in 40 CFR 180.128(a)(2)(iii)(B), 180.128(a)(2)(iii)(D) and 180.128(a)(3) (all subsections) should be removed. Also, the language in 40 CFR 180.128(a)(2)(iv) is outdated and no longer used in the CFR, therefore, the Agency has determined it should be removed. Therefore, EPA is proposing to remove 40 CFR 180.128(a)(2)(iii)(B), 180.128(a)(2)(iii)(D), 180.128(a)(3)(i)(A, B), (ii), (iii), (iv), (v), and 180.128(a)(2)(iv). Currently, 40 CFR 180.128(a)(2)(iii)(C) refers to “foods treated in accordance with 180.367(a)(2)”. To provide clarity, the citation 40 CFR 180.367(a)(2) is being replaced with the statement to which the citation refers as follows: • “A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use” and recodify 40 CFR 180.128(a)(2)(iii)(C) as 40 CFR 180.128 (a)(3) in accordance will all the subsection changes. Therefore, EPA proposes revising 40 CFR 180.128(a)(2)(iii)(C) to read as follows: • “A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use” and change the designation of 40 CFR 180.128 (a)(2)(iii)(C) to 180.128(a)(3). Currently, 40 CFR 180.128(a)(2)(i)(A)-(E) and

(ii)indicate use in combination with other active ingredients (piperonyl butoxide and MGK-264). The Agency has determined that all references to the use of multiple chemicals should be removed from the CFR because 40 CFR 180.128 is solely for the regulation of pyrethrins. Therefore, EPA proposes removing the 40 CFR 180.128 (a)(2)(i)(A-E) and

(ii)and recodify 40 CFR 180.128(a)(2)(iii)(A) to newly revised 40 CFR 180.128(a)(2) to read as follows: “A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on milled fractions derived from grain, cereal when present as a result of its use in cereal grain mills and in storage areas for milled cereal grain products.” As a result of all the changes in 40 CFR 180.128(a), EPA is also proposing to change the designation of 40 CFR 180.128(a)(2)(v) to 180.128(a)(4). Because 40 CFR 180.128 (a)(2)(i)(D) and

(E)have been removed, 40 CFR 180.128(a)(2)(iii)(E) which refer to these sections is no longer relevant and also should be removed. Therefore, EPA is proposing to remove 40 CFR 180.128(a)(2)(iii)(E). The Agency is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revising commodity terminology for tolerances in 40 CFR 180.128(a)(1) as follows: Barley, postharvest to barley, grain, postharvest; bean, postharvest to bean, succulent, postharvest; pea, postharvest to pea, dry, seed, postharvest; rye, postharvest to rye, grain, postharvest; and wheat, postharvest to wheat, grain, postharvest. Based on the maximum dietary burden and assuming a linear relationship between feeding levels and tissue concentrations, estimated residues are calculated to be as high as < 0.05 ppm, in milk, meat, and meat byproducts of cattle, goats, horses, hogs and sheep and 0.5 ppm in/on the fat of cattle, goats, horses, hogs, and sheep. The Agency determined the tolerances for cattle, goats, hogs, horses, and sheep meat and meat byproducts and milk should be decreased to 0.05 ppm and tolerances for the fat of cattle, goats, hogs, horses, and sheep should be increased to 1.0 ppm. Also the “N” indicating negligible residues should be deleted in accordance with current Agency practice. Therefore, EPA is proposing in 40 CFR 180.128(a)(1) for pyrethrins residues of concern to decrease the tolerances in/on milk fat (reflecting negligible residues in milk) from 0.5 to 0.05 ppm; cattle, meat; cattle, meat byproducts; goat, meat; goat, meat byproducts; hog, meat; hog, meat byproducts; horse, meat; horse, meat byproducts; sheep, meat; sheep, meat byproducts from 0.1(N) to 0.05 ppm and increase the tolerances in/on cattle, fat; goat, fat; hog, fat; horse, fat; and sheep, fat from 0.1(N) to 1.0 ppm. Based on exaggerated feed and premise treatment studies, there are no reasonable expectations of finite residues in poultry, meat, meat byproducts, fat and eggs (Category 3 of 40 CFR 180.6(a)(3)). Therefore, the Agency has determined that the tolerances for pyrethrins residues of concern in poultry commodities are not needed and should be revoked. Therefore, the Agency proposes revoking the tolerances in 40 CFR 180.128(a)(1) for egg at 0.1 ppm; and poultry, fat; poultry, meat; poultry, meat byproducts each at 0.2 ppm. The proposed tolerance actions herein for pyrethrins, to implement the recommendations of the pyrethrins RED, reflect use patterns in the United States which support a different tolerance than the Codex level because of differences in good agricultural practices and the specified postharvest application timing. 7. *Triallate.* Based on the available field trial data that indicate triallate residues of concern as high as 0.42 ppm, the Agency determined that a tolerance should be established in/on wheat forage at 0.5 ppm. This action was inadvertently omitted in the proposal of September 27, 2006 (71 FR 56429) (FRL-8089-5). Therefore, EPA proposes establishing the tolerance in 40 CFR 180.314(c) for the combined triallate residues of concern in/on wheat, forage at 0.5 ppm. B. What is the Agency's Authority for Taking this Action? “A tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by the FQPA of 1996, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore, “adulterated” under section 402(a) of FFDCA, 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered under FIFRA (7 U.S.C. 136 *et seq.* ). Food-use pesticides not registered in the United States must have tolerances in order for commodities treated with those pesticides to be imported into the United States. EPA is proposing these tolerance actions in follow-up to the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). The safety finding determination under section 408 of FFDCA standard is discussed in detail in each Post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A. EPA has issued a Post-FQPA RED for pyrethrins , MCPA, triallate, and TREDs for acephate, chlorpyrifos, fenbutatin-oxide and metolachlor, whose REDs were both completed prior to FQPA. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary. EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse. Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under section 408 of FFDCA, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities. Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue. When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that: 1. Finite residues will exist in meat, milk, poultry, and/or eggs. 2. There is a reasonable expectation that finite residues will exist. 3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)). EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this rule and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities. C. When do These Actions Become Effective? 1. EPA is proposing that modifications, establishment, commodity terminology revisions, and revocation of these tolerances become effective on the date of publication of the final rule in the **Federal Register** because: i. With respect to the revocations, their associated uses have been canceled for several years. ii. None of the other tolerance actions proposed here are expected to result in adulterated commodities. The Agency believes that, with respect to the tolerances proposed for revocation, treated commodities have had sufficient time for passage through the channels of trade. However, if EPA is presented with information that existing stocks would still be available and that information is verified, the Agency will consider extending the expiration date of the tolerance. If you have comments regarding existing stocks and whether the effective date allows sufficient time for treated commodities to clear the channels of trade, please submit comments as described under SUPPLEMENTARY INFORMATION . 2. Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of FDA that: i. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA. ii. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food. III. Are the Proposed Actions Consistent with International Obligations? The tolerance actions in this proposal are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standards established by FFDCA. The same food safety standards apply to domestically produced and imported foods. In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international Maximum Residue Limits

(MRLs)established by the Codex Alimentarius Commission, as required by section 408(b)(4) of FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A. IV. Statutory and Executive Order Reviews In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), and also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget

(OMB)has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq.* ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were] provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed action will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. This Agency document is available in the docket of this proposed rule). Furthermore, for the pesticide named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change the EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule. List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: July 26, 2007. Debra Edwards, Director, Office of Pesticide Programs. Therefore, it is proposed that 40 CFR chapter I be amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2.Section 180.108 is amended by revising paragraph (a)(1), paragragh (a)(2) introductory text, and

(c)to read as follows: § 180.108 Acephate; tolerances for residues.

(a)*General* .

(1)Tolerances are established for residues of acephate *per se* ( *O* , *S* -dimethyl acetylphosphoramidothioate) in or on the following food commodities 1 : Commodity Parts per million Bean, dry, seed 3.0 Bean, succulent 3.0 Brussels sprouts 3.0 Cattle, fat 0.1 Cattle, meat 0.1 Cattle, meat byproducts 0.1 Cauliflower 2.0 Celery 10 Cotton, undelinted seed 0.5 Cotton, hulls 1.0 Cotton, meal 1.0 Cranberry 0.5 Egg 0.1 Goat, fat 0.1 Goat, meat 0.1 Goat, meat byproducts 0.1 Hog, fat 0.1 Hog, meat 0.1 Hog, meat byproducts 0.1 Horse, fat 0.1 Horse, meat 0.1 Horse, meat byproducts 0.1 Lettuce, head 10 Milk 0.1 Peanut 0.2 Pepper 4.0 Peppermint, tops 27 Poultry, fat 0.1 Poultry, meat 0.1 Poultry, meat byproducts 0.1 Sheep, fat 0.1 Sheep, meat 0.1 Sheep, meat byproducts 0.1 Spearmint, tops 27 Soybean, seed 1.0 1 Residues of the acephate metabolite, methamidophos, are regulated under 40 CFR 180.315.

(2)A food tolerance of 0.02 ppm is established for residues of acephate *per se* ( *O* , *S* -dimethyl acetylphosphoramidothioate) as follows:

(c)*Tolerances with regional registration* . Tolerances with regional registration, as defined in § 180.1(m), are established for residues of acephate *per se* ( *O* , *S* -dimethyl acetylphosphoramidothioate) in or on the following food commodities: Commodity Parts per million Nut, macadamia 0.05 3. Section 180.128 is amended by revising paragraph

(a)to read as follows: § 180.128 Pyrethrins; tolerances for residues.

(a)*General* .

(1)Tolerances for residues of the insecticide pyrethrins ((1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienylcyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (pyrethrin 1), (1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropane-carboxylate (pyrethrin 2), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (cinerin 1), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (cinerin 2), (1S)-2-methyl-4-oxo-3-(2Z)-2-pentenyl-2-cyclopenten-1-yl (1R, 3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (jasmolin 1), and (1S)-2-methyl-4-oxo-3-(2Z)-pentenyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (jasmolin 2)), the insecticidally active principles of Chrysanthemum cinerariaefolium, which are measured as cumulative residues of pyrethrin 1, cinerin 1, and jasmolin 1 are not to exceed the following: Commodity Parts per million Almond, postharvest 1.0 Apple, postharvest 1.0 Barley, grain, postharvest 3.0 Bean, succulent, postharvest 1.0 Birdseed, mixtures, postharvest 3.0 Blackberry, postharvest 1.0 Blueberry, postharvest 1.0 Boysenberry, postharvest 1.0 Buckwheat, grain, postharvest 3.0 Cacao bean, roasted bean, postharvest 1.0 Cattle, fat 1.0 Cattle, meat 0.05 Cattle, meat byproducts 0.05 Cherry, sweet, postharvest 1.0 Cherry, tart, postharvest 1.0 Coconut, copra, postharvest 1.0 Corn, field, grain, postharvest 3.0 Corn, pop, grain, postharvest 3.0 Cotton, undelinted seed, postharvest 1.0 Crabapple, postharvest 1.0 Currant, postharvest 1.0 Dewberry, postharvest 1.0 Fig, postharvest 1.0 Flax, seed, postharvest 1.0 Goat, fat 1.0 Goat, meat 0.05 Goat, meat byproducts 0.05 Gooseberry, postharvest 1.0 Grape, postharvest 1.0 Guava, postharvest 1.0 Hog, fat 1.0 Hog, meat 0.05 Hog, meat byproducts 0.05 Horse, fat 1.0 Horse, meat 0.05 Horse, meat byproducts 0.05 Loganberry, postharvest 1.0 Mango, postharvest 1.0 Milk, fat (reflecting negligible residues in milk) 0.05 Muskmelon, postharvest 1.0 Oat, grain, postharvest 1.0 Orange, postharvest 1.0 Pea, dry, seed, postharvest 1.0 Peach, postharvest 1.0 Peanut, postharvest 1.0 Pear, postharvest 1.0 Pineapple, postharvest 1.0 Plum, prune, fresh, postharvest 1.0 Potato, postharvest 0.05 Raspberry, postharvest 1.0 Rice, grain, postharvest 3.0 Rye, grain, postharvest 3.0 Sheep, fat 1.0 Sheep, meat 0.05 Sheep, meat byproducts 0.05 Sorghum, grain, grain, postharvest 1.0 Sweet potato, postharvest 0.05 Tomato, postharvest 1.0 Walnut, postharvest 1.0 Wheat, grain, postharvest 3.0

(2)A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on milled fractions derived from grain, cereal when present as a result of its use in cereal grain mills and in storage areas for milled cereal grain products.

(3)A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use.

(4)Where tolerances are established on both the raw agricultural commodities and processed foods made there-from, the total residues of pyrethrins in or on the processed food shall not be greater than that permitted by the larger of the two tolerances. 4. Section 180.314 is amended by alphabetically adding the following commodity to the table in paragraph

(c)to read as follows: § 180.314 Triallate; tolerance for residues.

(c)*Tolerances with regional registations* . * * * Commodity Parts per million * * * * * Wheat, forage 0.05 * * * * * 5. Section 180.339 is amended by alphabetically adding the following commodity to the table in paragraph (a)(1) to read as follows. § 180.339 MCPA; tolerances for residues. (a)(1) *General* . * * * Commodity Parts per million * * * * * Grain, aspirated fractions 3.0 * * * * * 6. Section 180.342 is amended by revising paragraphs

(a)and

(c)to read as follows: § 180.342 Chlorpyrifos; tolerances for residues.

(a)*General* .

(1)Tolerances are established for residues of the insecticide chlorpyrifos *per se* ( *O* , *O* -diethyl- *O* -(3,5,6-trichloro-2-pyridyl) phosphorothioate) in or on the following food commodities: Commodity Parts per million Alfafa, forage 3.0 Alfalfa, hay 13 Almond 0.2 Almond, hulls 12 Apple 0.01 Apple, wet pomace 0.02 Banana 0.1 Beet, sugar, dried pulp 5.0 Beet, sugar, molasses 15 Beet, sugar, roots 1.0 Beet, sugar, tops 8.0 Cattle, fat 0.3 Cattle, meat 0.05 Cattle, meat byproducts 0.05 Cherry, sweet 1.0 Cherry, tart 1.0 Citrus, dried pulp 5.0 Citrus, oil 20 Corn, field, forage 8.0 Corn, field, grain 0.05 Corn, field, refined oil 0.25 Corn, field, stover 8.0 Corn, sweet, forage 8.0 Corn, sweet, kernel plus cob with husks removed 0.05 Corn, sweet, stover 8.0 Cotton, undelinted seed 0.2 Cranberry 1.0 Cucumber 0.05 Egg 0.01 Fig 0.01 Fruit, citrus, group 10 1.0 Goat, fat 0.2 Goat, meat 0.05 Goat, meat byproducts 0.05 Hazelnut 0.2 Hog, fat 0.2 Hog, meat 0.05 Hog, meat byproducts 0.05 Horse, fat 0.25 Horse, meat 0.25 Horse, meat byproducts 0.25 Kiwifruit 2.0 Lettuce 1.0 Milk, fat (reflecting 0.01 ppm in whole milk) 0.25 Nectarine 0.05 Onion, bulb 0.5 Peach 0.05 Peanut 0.2 Peanut, refined oil 0.2 Pear 0.05 Pecan 0.2 Pepper 1.0 Peppermint, tops 0.8 Peppermint, oil 8.0 Plum, prune, fresh 0.05 Poultry, fat 0.1 Poultry, meat 0.1 Poultry, meat byproducts 0.1 Pumpkin 0.05 Radish 2.0 Rutabaga 0.5 Sheep, fat 0.2 Sheep, meat 0.05 Sheep, meat byproducts 0.05 Spearmint, tops 0.8 Spearmint, oil 8.0 Sorghum, grain, forage 0.5 Sorghum, grain, grain 0.5 Sorghum, grain, stover 2.0 Soybean, seed 0.3 Strawberry 0.2 Sunflower, seed 0.1 Sweet potato, roots 0.05 Turnip, roots 1.0 Turnip, tops 0.3 Vegetable, brassica, leafy, group 5 1.0 Vegetable, legume, group 6, except soybean 0.05 Walnut 0.2 Wheat, forage 3.0 Wheat, grain 0.5 Wheat, straw 6.0

(c)*Tolerances with regional registrations* . Tolerances with regional registration, as defined in 180.1(m), are established for residues of the insecticide chlorpyrifos *per se* ( *O* , *O* -diethyl- *O* -(3,5,6-trichloro-2-pyridyl) phosphorothioate) in or on the following food commodities: Commodity Parts per million Asparagus 5.0 Grape 0.01 7. Section 180.362 amended by alphabetically adding the following commodity to the table in paragraph

(a)to read as follows. § 180.362 Hexakis (2-methyl-2-phenylpropyl)distannoxane; tolerances for residues.

(a)* * * Commodity Parts per million * * * * * Pistachio 0.5 * * * * * 8. Section 180.368 is revised to read as follows: § 180.368 Metolachlor; tolerances for residues.

(a)*General* .

(1)Tolerances are established for the combined residues (free and bound) of the herbicide metolachlor, 2-chloro- *N* -(2-ethyl-6-methylphenyl)- *N* -(2-methoxy-1-methylethyl)acetamide, and its metabolites, determined as the derivatives, 2- [(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound in the following raw agricultural commodities: Commodity Parts per million Almond, hulls 0.30 Animal feed, nongrass, group 18 1.0 Cattle, fat 0.04 Cattle, kidney 0.20 Cattle, liver 0.10 Cattle, meat 0.04 Cattle, meat byproducts, except kidney and liver 0.04 Corn, field, forage 6.0 Corn, field, grain 0.10 Corn, field, stover 6.0 Corn, sweet, forage 6.0 Corn, sweet, kernel plus cob with husks removed 0.10 Corn, sweet, stover 6.0 Cotton, gin byproducts 4.0 Cotton, undelinted seed 0.10 Egg 0.04 Goat, fat 0.04 Goat, kidney 0.20 Goat, liver 0.10 Goat, meat 0.04 Goat, meat byproducts, except kidney and liver 0.04 Horse, fat 0.04 Horse, kidney 0.20 Horse, liver 0.10 Horse, meat 0.04 Horse, meat byproducts, except kidney and liver 0.04 Milk 0.02 Nut, tree, group 14 0.10 Pea and bean, dried shelled, subgroup 6C, except soybean 0.10 Pea and bean, succulent shelled, subgroup 6B 0.30 Peanut 0.20 Peanut, hay 20 Peanut, meal 0.40 Potato 0.20 Poultry, fat 0.04 Poultry, meat 0.04 Poultry, meat byproducts 0.04 Safflower, seed 0.10 Sheep, fat 0.04 Sheep, kidney 0.20 Sheep, liver 0.10 Sheep, meat 0.04 Sheep, meat byproducts, except kidney and liver 0.04 Sorghum, grain, forage 1.0 Sorghum, grain, grain 0.30 Sorghum, grain, stover 4.0 Soybean, forage 5.0 Soybean, hay 8.0 Soybean, seed 0.20 Vegetable, foliage of legume, subgroup 7A, except soybean 15.0 Vegetable, legume, edible podded, subgroup 6A 0.50

(2)Tolerances are established for the combined residues (free and bound) of the herbicide S-metolachlor, S-2-chloro- *N* -(2-ethyl-6-methylphenyl)- *N* -(2-methoxy-1-methylethyl)acetamide, its R-enantiomer, and its metabolites, determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound, in or on the following raw agricultural commodities: Commodity Parts per million Asparagus 0.10 Beet, sugar, molasses 2.0 Beet, sugar, roots 0.5 Beet, sugar, tops 15.0 Brassica, head and stem, subgroup 5A 0.60 Cattle, fat 0.04 Cattle, kidney 0.20 Cattle, liver 0.10 Cattle, meat 0.04 Cattle, meat byproducts, except kidney and liver 0.04 Corn, field, grain 0.10 Corn, field, forage 6.0 Corn, field, stover 6.0 Corn, pop, grain 0.10 Corn, pop, stover 6.0 Corn, sweet, forage 6.0 Corn, sweet, kernel plus cob with husks removed 0.10 Corn, sweet, stover 6.0 Cotton, gin byproducts 4.0 Cotton, undelinted seed 0.10 Egg 0.04 Garlic, bulb 0.10 Goat, fat 0.04 Goat, kidney 0.20 Goat, liver 0.10 Goat, meat 0.04 Goat, meat byproducts, except kidney and liver 0.04 Grass, forage 10.0 Grass, hay 0.20 Horse, fat 0.04 Horse, kidney 0.20 Horse, liver 0.10 Horse, meat 0.04 Horse, meat byproducts, except kidney and liver 0.04 Milk 0.02 Onion, bulb 0.10 Onion, green 2.0 Peanut 0.20 Peanut, hay 20.0 Peanut, meal 0.40 Poultry, fat 0.04 Poultry, meat 0.04 Poultry, meat byproducts 0.04 Pumpkin 0.10 Safflower, seed 0.10 Shallot, bulb 0.10 Sheep, fat 0.04 Sheep, kidney 0.20 Sheep, liver 0.10 Sheep, meat 0.04 Sheep, meat byproducts, except kidney and liver 0.04 Sorghum, grain, forage 1.0 Sorghum, grain, grain 0.3 Sorghum, grain, stover 4.0 Soybean, forage 5.0 Soybean, hay 8.0 Soybean, seed 0.20 Spinach 0.50 Squash, winter 0.10 Sunflower, seed 0.50 Sunflower, meal 1.0 Tomato, paste 0.30 Vegetable, foliage of legume, subgroup 7A, except soybean 15.0 Vegetable, fruiting, group 8, except nonbell pepper 0.10 Vegetable, leaf petioles, subgroup 4B 0.10 Vegetable, legume, edible podded, subgroup 6A 0.50 Vegetable, legume, pea and bean, dried shelled, subgroup 6C, except soybean 0.10 Vegetable, root, subgroup 1B, except sugar beet 0.30 Vegetable, tuberous and corm, subgroup 1C 0.20

(b)*Section 18 emergency exemptions* . [Reserved]

(c)*Tolerances with regional registrations* .

(1)Tolerances with regional registration as defined in § 180.1(m) are established for the combined residues (free and bound) of the herbicide metolachlor, 2-chloro- *N* -(2-ethyl-6-methylphenyl)- *N* -(2-methoxy-1-methylethyl)acetamide, and its metabolites, determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound, in or on the following raw agricultural commodities: Commodity Parts per million Pepper, nonbell 0.50

(2)Tolerances with regional registration as defined in 180.1(m) are established for the combined residues (free and bound) of the herbicide S-metolachlor, S-2-chloro- *N* -(2-ethyl-6-methylphenyl)- *N* -(2-methoxy-1-methylethyl)acetamide, its R-enantiomer, and its metabolites, determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound, in or on the following raw agricultural commodities: Commodity Parts per million Pepper, nonbell 0.50

(d)*Indirect or inadvertent residues* .

(1)Tolerances are established for the indirect or inadvertent combined residues (free and bound) of the herbicide metolachlor, 2-chloro- *N* -(2-ethyl-6-methylphenyl)- *N* -(2-methoxy-1-methylethyl)acetamide, and its metabolites, determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound in the following raw agricultural commodities: Commodity Parts per million Animal feed, nongrass, group 18 1.0 Barley, grain 0.10 Barley, straw 0.50 Buckwheat, grain 0.10 Millet, forage 0.50 Millet, grain 0.10 Millet, straw 0.50 Oat, forage 0.50 Oat, grain 0.10 Oat, straw 0.50 Rice, grain 0.10 Rice, straw 0.50 Rye, forage 0.50 Rye, grain 0.10 Rye, straw 0.50 Wheat, forage 0.50 Wheat, grain 0.10 Wheat, straw 0.50

(2)Tolerances are established for the indirect or inadvertent combined residues (free and bound) of the herbicide S-metolachlor, S-2-chloro-N-(2-ethyl-6-methylphenyl)- *N* -(2-methoxy-1-methylethyl)acetamide, its R-enantiomer, and its metabolites determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound in or on the following food commodities: Commodity Parts per million Animal feed, nongrass, group 18 1.0 Barley, grain 0.10 Barley, hay 1.0 Barley, straw 0.50 Buckwheat, grain 0.10 Oat, forage 0.50 Oat, grain 0.10 Oat, hay 1.0 Oat, straw 0.50 Rice, grain 0.10 Rice, straw 0.50 Rye, forage 0.50 Rye, grain 0.10 Rye, straw 0.50 Wheat, forage 0.50 Wheat, grain 0.10 Wheat, hay 1.0 Wheat, straw 0.50 [FR Doc. E7-15336 Filed 8-7-07; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7728 and FEMA-D-7812] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations

(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety

(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act* . This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act* . As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification* . This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism* . This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform* . This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet

(NGVD)+ Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Crawford County, Arkansas, and Incorporated Areas Louemma Creek At the intersection of Northhills Blvd +460 +459 City of Van Buren. At the intersection with Rena Road +486 +487 Town Branch Intersection with 20th St. +421 +420 City of Van Buren. Intersection with Alma +441 +445 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Van Buren Maps are available for inspection at 1003 Broadway, Van Buren, AR 72956. Send comments to The Honorable Bob Freeman, Mayor, 1003 Broadway, Van Buren, AR 72956. Davie County, North Carolina and Incorporated Areas Baxter Creek At the confluence with Bear Creek None +680 Unincorporated Areas of Davie County. Approximately 1.1 miles upstream of the confluence with Bear Creek None +692 Bear Creek At the confluence with South Yadkin River None +671 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 310 feet downstream of Duke Whittaker Road (State Road 1316) None +811 Tributary 1 At the confluence with Bear Creek None +688 Unincorporated Areas of Davie County. Approximately 580 feet upstream of Railroad None +698 Tributary 2 At the confluence with Bear Creek None +700 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 740 feet upstream of South Davie Drive None +769 Tributary 3 At the confluence with Bear Creek None +708 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 860 feet upstream of Valley Road None +763 Tributary 3A At the confluence with Bear Creek Tributary 3 None +715 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 0.5 mile upstream of the confluence of Bear Creek Tributary 3 None +743 Tributary 4 At the confluence with Bear Creek None +711 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 240 feet upstream of U.S. 64 Highway W None +735 Tributary 5 At the confluence with Bear Creek None +767 Unincorporated Areas of Davie County. Approximately 410 feet upstream of Ralph Ratledge Road (State Road 1312) None +776 Beaver Creek At the confluence with Hunting Creek None +702 Unincorporated Areas of Davie County. Approximately 90 feet downstream of Castle Lane None +731 Tributary 1 At the confluence with Beaver Creek None +703 Unincorporated Areas of Davie County. Approximately 0.6 mile upstream of U.S. 64 Highway W None +738 Becks Spring Branch At the confluence with Dutchman Creek None +699 Unincorporated Areas of Davie County. Approximately 0.6 mile upstream of Eatons Church Road (State Road 1415) None +726 Bryant Branch At the confluence with Dutchman Creek None +690 Unincorporated Areas of Davie County. Approximately 120 feet upstream of Lutz Lane None +715 Buffalo Creek At the confluence with Dutchman Creek None +669 Unincorporated Areas of Davie County. Approximately 1.2 miles upstream of Milling Road None +690 Cain Mill Branch At the confluence with Steelman Creek None +795 Unincorporated Areas of Davie County. At the Davie/Yadkin County boundary None +795 Carter Creek At the confluence with Yadkin River +700 +692 Unincorporated Areas of Davie County. At NC 801 +700 +699 Tributary At the confluence with Carter Creek +700 +692 Unincorporated Areas of Davie County. Approximately 0.7 mile upstream of the confluence with Carter Creek +700 +698 Cedar Creek At the confluence with Dutchman Creek None +673 Unincorporated Areas of Davie County. Approximately 2.4 miles upstream of Wyo Road (State Road 1430) None +784 Chinquapin Creek At the confluence with Dutchman Creek None +729 Unincorporated Areas of Davie County. At the Davie/Yadkin County boundary None +788 Cody Creek The confluence with the Yadkin River None +658 Unincorporated Areas of Davie County. Approximately 0.5 mile upstream of NC 801 None +709 Cub Creek At the confluence with Cedar Creek None +674 Unincorporated Areas of Davie County. Approximately 1.0 mile upstream of the confluence with Cedar Creek None +687 Dry Branch At the confluence with Dutchman Creek None +737 Unincorporated Areas of Davie County. Approximately 0.7 mile upstream of Chinquapin Road None +781 Dutchman Creek At the confluence with the Yadkin River None +661 Unincorporated Areas of Davie County. Approximately 0.4 mile upstream of Amber Hill Road (State Road 1325) None +811 Tributary 2 At the confluence with Dutchman Creek None +661 Unincorporated Areas of Davie County. Approximately 0.6 mile upstream of NC 801 None +681 Tributary 3 At the confluence with Dutchman Creek None +661 Unincorporated Areas of Davie County. Approximately 1.2 miles upstream of Frank Short Road None +705 Tributary 4 At the confluence with Dutchman Creek None +683 Unincorporated Areas of Davie County. Approximately 640 feet upstream of Woodward Road (State Road 1407) None +695 Tributary 5 At the confluence with Dutchman Creek None +776 Unincorporated Areas of Davie County. Approximately 1.0 mile upstream of Ben Anderson Road (State Road 1321) None +800 Tributary 6 At the confluence with Dutchman Creek None +784 Unincorporated Areas of Davie County. Approximately 300 feet upstream of Davie/Iredell County boundary None +822 Elisha Creek At the confluence with Dutchman Creek None +667 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 1,560 feet upstream of the confluence of Elisha Creek Tributary None +712 Tributary At the confluence with Elisha Creek None +706 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 0.8 mile upstream of the confluence with Elisha Creek None +719 Elsworth Creek At the confluence with Dutchman Creek None +664 Unincorporated Areas of Davie County. Approximately 1.2 miles upstream of Williams Road (State Road 1610) None +699 Frost Mill Creek At the confluence with Dutchman Creek None +688 Unincorporated Areas of Davie County. Approximately 0.4 mile upstream of Cana Road (State Road 1408) None +744 Fulton Creek At the confluence with the Yadkin River None +677 Unincorporated Areas of Davie County. Approximately 1,080 feet upstream of Markland Road (State Road 1618) None +714 Greasy Creek At the confluence with Dutchman Creek None +699 Unincorporated Areas of Davie County. Approximately 2.0 miles upstream of Eatons Church Road (State Road 1415) None +757 Hauser Creek Approximately 100 feet downstream of the Davie/Yadkin County boundary None +711 Unincorporated Areas of Davie County. Approximately 0.7 mile upstream of Spillman Road (State Road 1458) None +725 Howard Branch At the confluence with Dutchman Creek None +730 Unincorporated Areas of Davie County. Approximately 1.3 miles upstream of Jack Booe Road (State Road 1330) None +772 Humpy Creek At the confluence with Dutchman Creek None +661 Unincorporated Areas of Davie County. Approximately 680 feet upstream of Riverview Road (State Road 1814) None +686 Hunting Creek At the confluence with South Yadkin River None +674 Unincorporated Areas of Davie County. At the Davie/Iredell County boundary None +724 Tributary 1 At the confluence with Hunting Creek None +690 Unincorporated Areas of Davie County. Approximately 140 feet downstream of Godbey Road (State Road 1150) None +707 Tributary 1A At the confluence with Hunting Creek Tributary 1 None +690 Unincorporated Areas of Davie County. Approximately 1,420 feet upstream of I-40 Highway W None +701 Tributary 2 At the confluence with Hunting Creek None +715 Unincorporated Areas of Davie County. Approximately 0.4 mile upstream of County Line Road (State Road 1338) None +752 Tributary 3 At the confluence with Hunting Creek None +719 Unincorporated Areas of Davie County. Approximately 0.8 mile upstream of the confluence with Hunting Creek None +731 Leonard Creek At the confluence with Dutchman Creek None +666 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 1,610 feet upstream of the confluence of Leonard Creek Tributary 1 None +698 Tributary 1 At the confluence with Leonard Creek None +689 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 500 feet upstream of the confluence of Leonard Creek Tributary 1B None +739 Tributary 1A At the confluence with Leonard Creek Tributary 1 None +701 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 0.8 mile upstream of the confluence with Leonard Creek Tributary 1 None +725 Little Bear Creek At the confluence with Bear Creek None +739 Unincorporated Areas of Davie County. Approximately 700 feet downstream of Black Welder Road (State Road 1309) None +798 Little Creek (North) At the confluence with South Yadkin River None +682 Unincorporated Areas of Davie County. Approximately 100 feet upstream of the Davie/Iredell County boundary None +799 Little Creek Tributary 1 At the confluence with Little Creek (North) None +750 Unincorporated Areas of Davie County. Approximately 640 feet upstream of Crescent Drive (State Road 1157) None +760 Nelson Creek At the confluence with Elisha Creek None +693 Unincorporated Areas of Davie County, Town of Mocksville. Approximately 0.5 mile upstream of the confluence of Nelson Creek Tributary 1 None +740 Tributary 1 At the confluence with Nelson Creek None +723 Town of Mocksville. Approximately 660 feet upstream of Park Avenue None +758 Tributary 1A At the confluence with Nelson Creek Tributary 1 None +726 Town of Mocksville. Approximately 1,260 feet upstream of the confluence with Nelson Creek Tributary 1 None +752 No Creek At the confluence with Dutchman Creek None +661 Unincorporated Areas of Davie County. Approximately 0.5 mile upstream of U.S. Highway 64 None +689 Noland Creek At the confluence with Dutchman Creek None +675 Unincorporated Areas of Davie County. Approximately 1,430 feet upstream of McClamrock Road (State Road 1640) None +687 Tributary 1 At the confluence with Noland Creek None +676 Unincorporated Areas of Davie County. Approximately 0.4 mile upstream of McClamrock Road None +695 Peeler Creek At the confluence with Cody Creek None +658 Unincorporated Areas of Davie County. Approximately 0.6 mile upstream of Will Boone Road (State Road 1802) None +696 Peoples Creek At the confluence with the Yadkin River None +684 Unincorporated Areas of Davie County. Approximately 1.5 miles upstream of Palomino Road None +770 Reedy Creek At the confluence with the Yadkin River None +653 Unincorporated Areas of Davie County. Approximately 400 feet downstream of Cherry Hill Road (State Road 1819) None +671 Sheek Creek At the confluence with the Yadkin River None +702 Unincorporated Areas of Davie County, Town of Bermuda Run. Approximately 1,640 feet upstream of Double A Trail None +722 Smith Creek Approximately 1,000 feet upstream of Kingsmill Drive +701 +700 Unincorporated Areas of Davie County, Town of Bermuda Run. Approximately 1,510 feet upstream of I-40 Highway W None +746 South Yadkin River At the confluence with Yadkin River None +648 Unincorporated Areas of Davie County, Town of Cooleemee. Approximately 400 feet upstream of the Rowan/Davie/Iredell County boundary None +698 Tributary 1 At the confluence with South Yadkin River None +656 Unincorporated Areas of Davie County. Approximately 0.7 mile upstream of the confluence with South Yadkin River None +669 Tributary 2 At the confluence with South Yadkin River None +656 Unincorporated Areas of Davie County. Approximately 2,000 feet upstream of the confluence of South Yadkin River Tributary 2B None +656 Tributary 2A At the confluence with South Yadkin River Tributary 2 None +656 Unincorporated Areas of Davie County. Approximately 1,590 feet downstream of Pine Ridge Road (State Road 1103) None +656 Tributary 2B At the confluence with South Yadkin River Tributary 2 None +656 Unincorporated Areas of Davie County. Approximately 0.4 mile upstream of the confluence with South Yadkin River Tributary 2 None +660 Tributary 3 At the confluence with South Yadkin River None +690 Unincorporated Areas of Davie County. Approximately 0.6 mile upstream of the confluence with South Yadkin River None +691 Tributary 4 At the confluence with South Yadkin River None +693 Unincorporated Areas of Davie County. Approximately 0.5 mile upstream of the confluence with South Yadkin River None +695 Steelman Creek At the confluence with Dutchman Creek None +740 Unincorporated Areas of Davie County. Approximately 0.4 mile upstream of the confluence of Cain Mill Branch None +769 Sugar Creek At the confluence with Cedar Creek None +681 Unincorporated Areas of Davie County. Approximately 370 feet upstream of Bobbit Road (State Road 1444) None +742 Tributary 1 At the confluence with Sugar Creek None +729 Unincorporated Areas of Davie County. Approximately 80 feet downstream of Rainbow Road (State Road 1441) None +737 Yadkin River Approximately 1,200 feet downstream of the confluence of South Yadkin River None +648 Unincorporated Areas of Davie County, Town of Bermuda Run. Approximately 1,500 feet upstream of the Forsyth/Davie/Yadkin County boundary None +711 Tributary 1 At the confluence with the Yadkin River None +678 Unincorporated Areas of Davie County. Approximately 780 feet upstream of Todd Road (State Road 1645) None +678 Tributary 3 At the confluence with Yadkin River +704 +695 Town of Bermuda Run. Approximately 450 feet upstream of Bridge Street None +703 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Town of Bermuda Run Maps are available for inspection at Bermuda Run Town Hall, 169 Yadkins Valley Road, Suite 100, Advance, North Carolina. Send comments to The Honorable John Ferguson, Mayor of the Town of Bermuda Run, 169 Yadkins Valley Road, Suite 100, Advance, North Carolina 27006. Town of Cooleemee Maps are available for inspection at Davie County Courthouse, 140 South Main Street, Mocksville, North Carolina. Send comments to The Honorable John Chandler, Mayor of the Town of Cooleemee, P.O. Box 1080, Cooleemee, North Carolina 27014. Town of Mocksville Maps are available for inspection at Mocksville Town Hall, 171 Clement Street, Mocksville, North Carolina. Send comments to The Honorable Francis Slate, Mayor of the Town of Mocksville, 171 Clement Street, Mocksville, North Carolina 27028. Unincorporated Areas of Davie County Maps are available for inspection at Davie County Development Services, 172 Clement Street, Mocksville, North Carolina. Send comments to Mr. Terry Bralley, Davie County Manager, 172 Clement Street, Mocksville, North Carolina 27028. Orange County, North Carolina, and Incorporated Areas Dry Branch At the confluence with New Hope Creek Tributary 1 +285 +286 Town of Chapel Hill. Approximately 870 feet upstream of Silver Creek Trail None +397 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Town of Chapel Hill Maps are available for inspection at Chapel Hill Town Hall, Stormwater Management Program Office, 209 North Columbia Street, Chapel Hill, North Carolina. Send comments to The Honorable Kevin C. Foy, Mayor of the Town of Chapel Hill, 405 Martin Luther King Jr. Boulevard, Chapel Hill, North Carolina 27514. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: July 26, 2007. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E7-15427 Filed 8-7-07; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION [MB Docket Nos. 06-121, 02-277, 04-228; MM Docket Nos. 01-235, 01-317, 00-244; FCC 07-136] 47 CFR Part 73 2006 Quadrennial Regulatory Review AGENCY: Federal Communications Commission. ACTION: Notice of proposed rulemaking. SUMMARY: This document seeks comment on various proposals to promote minority and female ownership in the media industry. It also addresses a motion to withdraw, revise, and republish the Commission's Further Notice of Proposed Rulemaking in its media ownership review. DATES: The agency must receive comments on or before October 1, 2007 and reply comments on or before October 16, 2007. ADDRESSES: Comments may be filed electronically using the Internet by accessing the Electronic Comment Filing System, *http://www.fcc.gov/cgb/ecfs/,* or the Federal eRulemaking Portal, *http://www.regulations.gov* . 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. 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. FOR FURTHER INFORMATION CONTACT: The Media Bureau contacts for this proceeding are Mania Baghdadi and Jamila Bess Johnson, both at

(202)418-7200. Press inquiries should be directed to Mary Diamond at

(202)418-2388. SUPPLEMENTARY INFORMATION: I. Introduction 1. The Commission has before it the “Motion for Withdrawal of the Further Notice of Proposed Rulemaking and for the Issuance of a Revised Further Notice” filed on August 23, 2006 (the “Motion for Withdrawal”) by the Diversity and Competition Supporters (collectively, “MMTC”). MMTC states that the Commission's Further Notice of Proposed Rule Making (FNPRM) in the media ownership proceeding, 71 FR 45511, August 9, 2006, is flawed and should be withdrawn, revised, and republished. The FNPRM invited comment on the several media ownership rules adopted by the Commission in its *2002 Biennial Review Order,* 68 FR 46286, August 5, 2003, and the pending petitions for reconsideration of the *2002 Biennial Review Order,* and initiates the statutorily mandated 2006 quadrennial review of the Commission's media ownership rules. Specifically, MMTC asserts that the FNPRM is deficient because it fails to:

(1)Identify and describe MMTC's minority ownership proposals remanded by the court in *Prometheus Radio Project, et al.* v. *FCC,* 373 F.3d 372 (3d Cir. 2004);

(2)refer to or seek comment on a definition of a socially and economically disadvantaged business (“SDB”); and

(3)identify section 257 of the Telecommunications Act of 1996 as a central legal basis for minority ownership relief. MMTC requests that the Commission restart the ownership proceeding. 2. The FNPRM sought comment on MMTC's various proposals, as well as on the general issue of fostering minority and female ownership. We urged commenters to explain the effects, if any, that their rule proposals would have on ownership of broadcast outlets by minorities, women and small businesses. Given the impact of these issues on our comprehensive ownership review, we believe it would be beneficial to issue this Second FNPRM to set forth in greater detail the proposals MMTC identified in its Motion for Withdrawal and to clarify the record as requested by MMTC. Thus, in this Second FNPRM, we seek comment on the proposals MMTC submitted in the 2002 biennial review proceeding, as they are described in Appendix A, as well as on the proposals submitted to the Commission by the Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”), which are also described in Appendix A and are set forth more fully in the Committee's recommendations to the Commission. See *http://www.fcc.gov/DiversityFAC/* for a full listing of Diversity Committee meetings, recommendations and white papers. In order to consider fully the issues raised by MMTC, as discussed further below, we consolidate our ongoing section 257 proceeding with this proceeding. 3. We find it unnecessary to adopt the specific approach suggested by MMTC that we rescind and reissue the FNPRM in its entirety. The approach we take, in conjunction with the initial FNPRM, provides ample notice to the commenting public on the specific issues germane to our media ownership review, including those raised by MMTC relating to ownership diversity. II. Background 4. In comments filed in the Commission's 2002 biennial review proceeding, MMTC proposed numerous measures to promote minority broadcast ownership. In the subsequent * 2002 Biennial Review Order, * the Commission listed 13 of MMTC's proposals, in addition to describing proposals other commenters submitted. The Commission stated that, because a “more thorough exploration” of those comments was warranted, it would initiate a separate proceeding to address MMTC's 13 proposals and the other comments regarding minority and female broadcast ownership. Responding to MMTC's concern that minorities lack equal transactional opportunities, the Commission also stated that it would create a federal advisory committee to study minority and female ownership issues. In addition, the Commission adopted a transfer policy (the so-called “small business cluster transfer policy”) intended to promote diversity of ownership, based largely on a proposal submitted by MMTC, which permits sales of grandfathered combinations that exceed the ownership limits to and by certain “eligible entities.” Entities may transfer control of or assign an existing grandfathered combination to “eligible entities,” defined as entities that would qualify as a small business consistent with Small Business Administration (“SBA”) standards for its industry grouping. In addition, eligible entities may sell existing grandfathered combinations without restriction. 5. In the *2002 Biennial Review Order,* the Commission repealed its failed station solicitation rule (“FSSR”), which is part of the Commission's waiver standard under the local television ownership rule. That waiver standard permits a television station purchaser to exceed local television ownership limits if the acquired station is failed, failing, or unbuilt. See 47 CFR 73.3555 Note 7. Under the FSSR, a waiver applicant was required to demonstrate that serious efforts had been made to secure an out-of-market buyer for the troubled station. A waiver was not granted unless the applicant could show that the in-market buyer was the “only reasonably available entity willing and able to operate the station” and that an out-of-market sale would result in an “artificially depressed price.” In the *2002 Biennial Review Order,* the Commission retained the waiver standard, but eliminated the FSSR requirement. 6. On review, the U.S. Court of Appeals for the Third Circuit remanded the Commission's decision to address MMTC's 13 proposals in a separate rulemaking and ordered the Commission to address those proposals at the same time that it addresses the other remanded issues. The court also remanded the Commission's decision to repeal the FSSR because the Commission did not address the potential impact of the repeal on minority television station ownership. III. Discussion A. Minority and Female Ownership Initiatives 1. Socially and Economically Disadvantaged Businesses (“SDBs”) 7. MMTC argues that the Commission erred in the FNPRM by failing to seek specific comment on how to define SDBs, adding that the concept of SDBs is central to most of the minority ownership initiatives proposed in the 2002 biennial review proceeding. MMTC states that the Prometheus opinion recognizes the importance of establishing a definition for SDBs because, in approving the small business cluster transfer policy, the court indicated that, by the next quadrennial review, the Commission would have the benefit of a stable definition of SDBs as well as implementation experience in order to reevaluate whether an SDB-based waiver policy would better promote the Commission's diversity objectives. MMTC maintains that, without a definition for SDBs, the Commission cannot effectively evaluate the existing small business cluster transfer policy or its other proposals, as remanded by the Prometheus court. 8. MMTC states that the issue of the SDB definition has already been fully briefed in the Commission's proceeding examining market entry barriers. In that proceeding, initiated in 2004, the public was invited to comment on constitutionally permissible ways to further the mandate of section 257 of the Telecommunications Act of 1996, which directs the Commission to identify and eliminate market entry barriers for small telecommunications businesses, and section 309(j) of the Communications Act of 1934, as amended (“the Act”), which requires the Commission to further opportunities in the allocation of spectrum-based services for small and rural businesses and businesses owned by women and minorities. See 69 FR 34672, June 22, 2004. The Media Bureau also asked commenters to provide specific recommendations for building on the series of market entry barrier studies that the Commission released in December 2000. The studies are available on the Commission's Web site at *http://www.fcc.gov/opportunity/meb_study/* and *http://www.fcc.gov/Bureaus/Mass_Media/Informal/ad=study/.* 9. We invite comment on MMTC's proposal that the Commission define SDBs for purposes of analyzing policy initiatives in support of media ownership diversity. We ask that commenters address whether use of a proposed definition raises any constitutional concerns, practical concerns, or other considerations unique to the Commission's policy objectives, and we invite comment on its impact on small entities. To ensure full consideration of this issue, we will consolidate the MB Docket No. 04-228 proceeding commenced in 2004 with our review of the media ownership rules. 2. MMTC Proposals 10. We seek comment on the various proposals for increasing minority and female broadcast ownership identified by MMTC. As MMTC suggests, we have attached its description of these proposals as Appendix A. 1 The proposals include:

(1)those that MMTC submitted for consideration in the 2002 biennial review proceeding;

(2)the MMTC proposals the Commission listed in the *2002 Biennial Review Order,* which the Third Circuit ordered the Commission to address on remand; and

(3)media-related recommendations of the Diversity Committee. 2 In discussing these proposals, commenters should address the various questions and issues set forth below. 1 We have included the text of Appendix B to MMTC's Motion for Withdrawal as Appendix A hereto. Although we have modified the MMTC Appendix to eliminate a non-substantive footnote and to correct a few apparent minor typographical errors, we have not altered the descriptions, assessments, or legal analyses of the proposals, as submitted by MMTC. By incorporating these materials, we do not adopt any such descriptions, assessments, or analyses as official Commission policy; we are providing them only to specifically invite public comment on them. 2 The descriptions of the Diversity Committee recommendations are provided by MMTC, which is a member of the Diversity Committee but which does not represent the Diversity Committee as a whole. Although the Diversity Committee recommendations are not subject to the Third Circuit's remand, we are seeking comment on them to ensure a more complete record. 11. In addition, as MMTC requests, we also seek comment on the efficacy of the FSSR in promoting minority and female broadcast ownership. When out-of-market purchasers for a station are unavailable, the Commission permits ownership rule waivers for failed, failing and unbuilt stations because the in-market purchase of such stations is preferable to having frequencies go unused, even where the combination would violate the local television ownership rule. In the *2002 Biennial Review Order,* the Commission determined that applicants seeking a waiver of the local television ownership rule no longer needed to comply with the FSSR requirement that they must first demonstrate the unwillingness of out-of-market buyers to offer a reasonable price for the failed, failing, or unbuilt station. In eliminating the FSSR requirement, the Commission found that the efficiencies associated with the operation of two same-market stations, absent unusual circumstances, will always result in the buyer being the owner of another station in the same market. In remanding the Commission's repeal of the FSSR, the Third Circuit stated that the purpose of the FSSR was to ensure that minority broadcasters received notification of these station sales. The Third Circuit found that the Commission's decision was arbitrary and capricious because it failed to discuss the effect of the repeal on minority ownership. 12. We invite comment on the extent to which the FSSR or another construction of the rule could promote minority and female ownership. We ask commenters to provide concrete evidence rather than generalized assertions. B. Constitutional Issues 13. Any measures to facilitate minority and female broadcast entry that are based on racial or gender classifications must satisfy the heightened constitutional standards that apply to governmental preferences for minorities and women under the Equal Protection Clause. The Supreme Court's ruling in *Adarand Constructors, Inc.* v. * Pen a, * 515 U.S. 200 (1995), requires that governmental classifications based on race must be analyzed under strict scrutiny, and are constitutional only if such classifications are narrowly tailored measures that further a compelling governmental interest. Gender classifications are subject to intermediate scrutiny, under which the government's action must be substantially related to the achievement of an important objective. In discussing a proposal targeted or designed to promote minority and female broadcast ownership, commenters should describe, consistent with relevant case law, how the proposal would satisfy constitutional standards. In particular, proponents of initiatives that rely on a definition of SDBs should explain in detail whether and how the definition would satisfy constitutional standards. C. Statutory Authority 14. We also seek further comment on the Commission's statutory authority to address issues of minority and female ownership. Section 257 of the Act requires the Commission to identify and eliminate “market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services.” Despite the apparent limitation of 47 U.S.C. 257(a) to telecommunications and information services, the congressional directive to promote “the policies and purposes of this Act favoring diversity of media voices” in implementing section 257(a) arguably brings broadcasting within the scope of section 257. We invite comment on this interpretation of the statute. The statutory provision also specifically directs the Commission to “promote the policies and purposes of this Act favoring diversity of media voices” in carrying out its section 257 responsibilities. In addition, in 1996, Congress amended section 1 of the Act to make it clear that the Commission's mandate is to regulate interstate and foreign communications services so that they are “available, so far as possible, to all people of the United States, without discrimination on the basis of race, color, religion, national origin or sex * * *” We ask commenters to address whether and how these statutory provisions support the Commission's efforts to promote media ownership diversity. 15. Further, section 309(j) of the Act requires the Commission to promote the dissemination of licenses to a wide variety of applicants, including members of minority groups and women. Section 309(j) directs the Commission to “ensure that * * * businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services.” In addition, section 309(j)(3)(B) requires the Commission, in establishing eligibility criteria and bidding methodologies, to promote “economic opportunity and competition * * * by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.” 16. We invite comment on the Commission's statutory authority to facilitate the licensing of spectrum-based services to a diversity of entities, including businesses owned by minority groups and women. Commenters should also address the limitations of these statutory provisions in light of recent court decisions regarding equal protection. We also solicit comment on any further statutory provisions that would enable the Commission to address ownership diversity, particularly in terms of fostering diversity of ownership among minorities and women. IV. Procedural Matters A. Comment Information 17. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated above. 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, May 1, 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). B. Regulatory Flexibility Act 18. As required by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission prepared an Initial Regulatory Flexibility Analysis (“IRFA”) in the initial Notice of Proposed Rulemaking in the media ownership proceeding and a Supplemental Initial Regulatory Flexibility Analysis Act (“Supplemental IRFA”) in the initial Further Notice of Proposed Rulemaking in the media ownership proceeding. We have now prepared a Second Supplemental IRFA, which is set forth in Appendix B. Written public comments are requested on the Second Supplemental IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the Second FNPRM, and should have a separate and distinct heading designating them as responses to the Second Supplemental IRFA. C. Paperwork Reduction Act 19. This document does not contain proposed information collections subject to the Paperwork Reduction Act of 1995 (“PRA”), Pub. L. No. 104-13, 109 Stat. 163 (1995). Therefore, it does not contain any proposed new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. No. 107-198, 116 Stat. 729 (2002). However, depending on the rules adopted as a result of this Second FNPRM, the report and order ultimately adopted in this proceeding may contain information collections. The Commission will provide a period for public comment on any PRA burdens contained in the report and order and will submit such burdens to the Office of Management and Budget for approval when the report and order is adopted and released. D. Ex Parte Information 20. 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. 21. *Contact Information.* The Media Bureau contacts for this proceeding are Mania Baghdadi and Jamila Bess Johnson, both at

(202)418-7200. Press inquiries should be directed to Mary Diamond at

(202)418-2388. V. Ordering Clauses 22. Accordingly, *it is ordered,* that pursuant to the authority contained in sections 1, 2(a), 4(i), 257, 303, 307, 309, 310, and 613 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303, 307, 309, 310, and 533, and section 202(h) of the Telecommunications Act of 1996, this Second Further Notice of Proposed Rulemaking *is adopted.* 23. *It is further ordered* that, pursuant to the authority contained in sections 1, 2(a), 4(i), 257, 303, 307, 309, 310, and 613 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303, 307, 309, 310, and 533, and section 202(h) of the Telecommunications Act of 1996, *notice is hereby given* of the proposals described in this Second Further Notice of Proposed Rulemaking. 24. *It is further ordered* that MB Docket No. 04-228 *shall be* consolidated with MB Docket No. 06-121 *et al.* 25. *It is further ordered* that MMTC's Motion for Withdrawal of the Further Notice of Proposed Rulemaking and for the Issuance of a Revised Further Notice is granted to the extent described herein, and in all other respects, denied. 26. *It is further ordered* that MMTC's Request for Ruling on its Motion for Withdrawal of the Further Notice of Proposed Rulemaking and for the Issuance of a Revised Further Notice is granted to the extent described herein, and in all other respects, denied. 27. *It is further ordered* that comments and reply comments with regard to those matters raised in this Second Further Notice of Proposed Rulemaking will be due October 1, 2007 and October 16, 2007, respectively. 28. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this Second Further Notice of Proposed Rulemaking, including the Second Supplemental Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. Appendix A—Minority Ownership Proposals and Suggestions 3 3 This Appendix is a verbatim copy of Appendix B to MMTC's Motion for Withdrawal, except that this Appendix reflects minor typographical corrections and the omission of a non-substantive footnote. Section I (items 1-14) contains the 14 proposals of the Diversity and Competition Supporters (“MMTC”) in MM Docket No. 02-277. The FCC's Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”) also proposed eight of these items, as noted therein. Section II (items 15-26) contains 12 informal suggestions made by the Minority Media and Telecommunications Council at a November 6, 2002 meeting of stakeholders at the Commerce Department. *These were not the Diversity and Competition Supporters' proposals in the media ownership proceeding; rather, they were the Minority Media and Telecommunications Council's informal suggestions to stakeholders.* The Diversity Committee also proposed one of these items, as noted therein. Section III (items 27-34) contains recommendations issued by the Diversity Committee that do not track the proposals or suggestions in items 1-26. Among these, items 27-30 are nonregulatory recommendations, and items 31-34 are regulatory recommendations. The Diversity Committee has propounded 17 recommendations germane to media ownership: Eight tracking items in Section I, one tracking an item in Section II, and the eight items in Section III. Section I: MMTC Proposals in MM Docket 02-277 1. Equal transactional opportunity policy—barring discrimination on the basis of race or gender in broadcast transactions. *Location(s) in Record:* Initial Comments of Diversity and Competition Supporters, MB Docket No. 02-277 (filed January 2, 2003) (“MMTC 2003 Comments”), pp. 115-120; MMTC Letter to Hon. Michael Powell, MM Docket No. 02-277 (April 28, 2003) (“MMTC April 28, 2003 *Ex Parte* ”), pp. 11-19. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* Race and gender discrimination in the sale of broadcast stations would be banned, consistent with 47 U.S.C. 151. The seller would certify compliance by checking a box on a Form 314 or Form 315 application. *Year First Proposed:* 1994. *Parallel Recommendation of Diversity Committee:* Transactional Transparency Recommendations, May 14, 2004, p. 4; White Paper on Equal Transactional Opportunity, April 29, 2004. *Relevance of SDB Definition:* No. 2. Transfer Restriction of Grandfathered Clusters to SDBs. *Location(s) in Record:* MMTC 2003 Comments, pp. 107-109. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* The seller of a grandfathered cluster would not have to break it up if it were sold to an SDB. In the 2002 Biennial Review, the Commission adopted a provision for the transfer intact of a grandfathered cluster, but decided that small businesses, rather than SDBs, would constitute the class of eligible buyers. MMTC seeks to develop a definition of “socially and economically disadvantaged business”

(SDB)that would be appropriate for broadcasting and be constitutionally sound. SDBs are a subset of small businesses. Like other small businesses, they are economically disadvantaged; but unlike other small businesses, they are also socially disadvantaged. Their social disadvantage stems from individualized factors or from their membership in a class (such as a racial group in a particular industry) for which discrimination has inhibited entry and financing. An SDB definition is desirable because it would be less dilute in its impact on minorities by omitting, for example, the children of millionaires who, as new entrants, can qualify as small businesses although they have never been disadvantaged. *Year First Proposed:* 2003. *Parallel Recommendation of Diversity Committee:* none. *Relevance of SDB Definition:* Yes. 3. Structural rule waiver for selling a station to an SDB, where the sale to the SDB is ancillary to a transaction that otherwise would be barred by an ownership rule. *Location(s) in Record:* MMTC 2003 Comments, p. 103. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* A company contemplating a transaction that would otherwise be barred by an ownership rule (perhaps one that would qualify in the future, *e.g.* , if the Commission adopted a staged implementation of deregulation program; *see* item 13 *infra* ) would be permitted to complete the transaction if it sells stations to SDBs. *Year First Proposed:* 1995 (concept originally advanced by NTIA in 1977). *Parallel Recommendation of Diversity Committee:* Financial Issues Recommendations, June 14, 2004, pp. 17-18; White Paper on Incentive-Based Regulations, May 23, 2004, pp. 5-6. *Relevance of SDB Definition:* Yes. 4. Tolling buildout deadlines for selling expiring construction permits to SDBs. *Location(s) in Record:* MMTC 2003 Comments, pp. 112-115 (originally a petition for rulemaking filed by Entravision Holdings LLC, RM-9567 (filed March 10, 1998)). *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* In 1998, Entravision submitted a petition for rulemaking which sought to revise the construction permit expiration standard established pursuant to 47 U.S.C. 319(a)-(b) and implemented in 47 CFR 73.3598. Entravision proposed that the Commission allow holders of expiring construction permits to sell them to entities in which minorities own at least 20% of the equity, or to entities which commit to serve the programming needs of minority or foreign language groups for at least 80% of their operating time. MMTC proposed a modification of Entravision's concept to make it applicable to all SDBs. *Year First Proposed:* 1998. *Parallel Recommendation of Diversity Committee:* Financial Issues. Recommendations, June 14, 2004, pp. 17-18; White Paper on Incentive-Based Regulations, May 23, 2004, pp. 9-10. *Relevance of SDB Definition:* Yes. 5. Structural rule waivers for creating incubator programs. *Location(s) in Record:* MMTC 2003 Comments, pp. 104-105. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* The Commission would act on still-pending incubator plans developed in 1992 by Chairman Sikes and by NABOB. With constitutionally required modifications, these plans would allow a company to acquire more than the otherwise-allowable number of stations in a market if the company establishes a program that substantially promotes ownership by disadvantaged businesses. The incubator programs could encompass management or technical assistance, loan guarantees, direct financial assistance through loans or equity investment, training and business planning assistance. *Year First Proposed:* 1992. *Parallel Recommendation of Diversity Committee:* Financial Issues Recommendations, June 14, 2004, pp. 17-18; White Paper on Incentive-Based Regulations, May 23, 2004, pp. 6-7. *Relevance of SDB Definition:* Yes. 6. Bifurcation of channels for share-times with SDBs. *Location(s) in Record:* Comments of the Minority Media and Telecommunications Council in MB Docket 01-317 (Radio Ownership) (filed March 19, 2002) (“MMTC 2002 Comments”), pp. 111-173; Reply Comments of the Minority Media and Telecommunications Council in MB Docket 01-317 (Radio Ownership) (filed May 8, 2002) (“MMTC 2002 Reply Comments”), pp. 6-10; MMTC 2003 Comments, pp. 106-107. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* The Commission would create a new class of “Free Speech Stations.” They would be independently owned by SDBs, have at least 20 non-nighttime hours per week of airtime, and be primarily devoted to non-entertainment programming. A Free Speech Station would share time on the same channel with a largely deregulated “Entertainment Station.” A cluster owner that bifurcates a channel to accommodate a Free Speech Station and an Entertainment Station could buy another fulltime station in the market by taking advantage of section 202(b)(2) of the Telecommunications Act, which allows for an exception to the local radio ownership rule when a new station is created. That additional fulltime station would also be bifurcated into a Free Speech and an Entertainment Station. In this way, a cluster could grow steadily up to the limits allowed by antitrust law. *Year First Proposed:* 2002. *Parallel Recommendation of Diversity Committee:* Financial Issues Recommendations, June 14, 2004, pp. 17-18; White Paper on Incentive-Based Regulations, May 23, 2004, pp. 7-8. *Relevance of SDB Definition:* Yes. 7. Structural rule waivers for financing construction of an SDB's unbuilt station. *Location(s) in Record:* MMTC 2003 Comments, pp. 109-110. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* When a broadcaster provides an SDB with an equity/debt plus interest (“EDP Interest”) that enables the SDB to build out an unbuilt permit,

(1)the EDP Interest should be deemed nonattributable, and

(2)the entity providing the EDP Interest should be reserved a place in line to subsequently duopolize or crossown another same-market station. This reserved place in the queue, in markets where only a limited number of new combinations can be created under the local ownership rules, would provide an incentive to broadcasters to assist SDBs to build out their unbuilt permits. *Year First Proposed:* 1999. *Parallel Recommendation of Diversity Committee:* none. *Relevance of SDB Definition:* Yes. 8. Grandfathering of nonattribution of EDP (equity debt-plus) interests in SDBs. *Location(s) in Record:* MMTC 2003 Comments, pp. 110-112. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* The nonattributable nature of EDP Interests in SDBs would be grandfathered, irrespective of whether the entity providing the EDP Interest (the “EDP Provider”) subsequently acquires other properties which otherwise would cause the EDP Interest to be attributable to the EDP Provider. These arrangements would be permissible where

(1)the EDP Provider merges with, acquires, or is acquired by a company unrelated to the company holding a nonattributable EDP Interest in an SDB (an “Unrelated Transaction”);

(2)the Unrelated Transaction occurs at least a year after the EDP relationship was formed;

(3)the Unrelated Transaction would otherwise cause the EDP Provider's EDP Interest in the SDB to become attributable; and

(4)the EDP Provider and the SDB make an affirmative showing that the EDP Provider does not exercise undue influence over the SDB. *Year First Proposed:* 1999. *Parallel Recommendation of Diversity Committee:* Financial Issues Recommendations, June 14, 2004, pp. 17-18; White Paper on Incentive-Based Regulations, May 23, 2004, pp. 8-9. *Relevance of SDB Definition:* Yes. 9. Mathematical touchstones: Tipping points for the nonviability of independently owned radio stations in a consolidating market, and quantifying source diversity. *Location(s) in Record:* MMTC 2002 Reply Comments, pp. 22-27; MMTC Reply Comments, pp. 17-24; MMTC April 28, 2003 *Ex Parte,* pp. 6-7. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* MMTC offered two formulas suitable for crafting and implementing rules to promote diversity:

(1)The “Tipping Point Formula” established how the Commission could ensure that local radio markets could preserve independent owners. This formula was based on the premise that independent owners each need determinable and quantifiable revenue streams in order to stay afloat and provide service to the public. The formula acknowledges the existence of a tipping point in the distribution of radio revenue in a market between cluster owners and independents. When the combined revenues of a market's cluster owners exceed this tipping point, the independents can no longer survive. By identifying this tipping point, the formula provides a rational basis for determining whether a transaction would limit diversity.

(2)The “Source Diversity Formula” expresses consumers’ utility derived from marginal increases in source diversity. The Source Diversity Formula is based on the premise that increases in consumer utility flow from their access to additional sources, with diminishing returns to scale. This formula would require field-testing before it could be applied in practice to measure source diversity. *Year First Proposed:* 2002. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* Yes. 10. Zero tolerance for ownership rule abuse. *Location(s) in Record:* MMTC 2003 Comments, pp. 123-127. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* Structural abuse is endemic due to limited enforcement resources, the ease of concealing abuse, and the high financial rewards for rule breaking. Structural rule relaxation would be easier to accept if the Commission holds the line on abuse through a Zero Tolerance Policy focused on clear standards, pro-active investigations, evidentiary hearings, and strict penalties for rule violations. *Year First Proposed:* 2003. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 11. Use of Joint Operating Agreements

(JOAs)as an alternative to Local Marketing Agreements

(LMAs)and Joint Sales Agreements (JSAs). *Location(s) in Record:* Comments of the Communications Workers of America

(CWA)in MB Docket 02-277 (filed January 2, 2003), pp. 4-5 and 48; MMTC Reply Comments, pp. 15-16. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* The Commission requires ownership attribution of most JSAs and LMAs. While this step promotes diversity, it also reduces the options available to financially troubled facilities seeking to survive. CWA proposed that JOAs, such as those used in the newspaper industry, could be used to help companies survive and to promote diversity at the same time. A JOA adapted to broadcasting would leave each station's program creation, program organization and distribution, and sales strategy and implementation in the hands of each station's licensees. At the same time, a genuine JOA allows both stations to take advantage of operational synergies for non-program, non-sales related functions, such as accounting, engineering, and physical plant management. A JOA would not be attributable. *Year First Proposed:* 2003. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 12. Opening FM spectrum for new entrants. *Location(s) in Record:* MMTC 2003 Comments, pp. 128-141; MMTC April 28, 2003. *Ex Parte,* pp. 10-11. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* The Commission has systematically broadened spectrum availability as a means of balancing consolidation with new entry. MMTC proposed three methods by which the FCC could open the FM radio spectrum to new entrants:

(1)create two new classes of FM stations suitable for serving small communities;

(2)perform a comprehensive engineering search of the FM spectrum to identify the most-needed new drop-in opportunities; and

(3)replace FM station classes with pure interference-based criteria. *Year First Proposed:* 2003. *Parallel Recommendation of Diversity Committee:* Recommendation on Diversifying Ownership in the Commercial FM Radio Band, October 4, 2004, as amplified by the Recommendations of the Subcommittee on New Technologies, June 11, 2004, containing eight relevant subparts:

(1)Create medium power FM stations;

(2)replace the FM Table with interference-based allotment criteria;

(3)allow Class A stations to use low towers and higher-than-standard power while retaining appropriate ERP levels;

(4)conduct a comprehensive channel search for new FM allotments;

(5)harmonize regional interference protection standards;

(6)repeal the third-adjacent FM contour rules;

(7)relax the community of license and transmitter site rules; and

(8)authorize interference agreements. *Relevance of SDB Definition:* No. 13. Staged implementation of deregulation, coupled with a negotiated rulemaking. *Location(s) in Record:* MMTC 2003 Comments, pp. 84-101 and 145-147; Comments of Paxson Communications Corporation, MB Docket 02-277 (filed January 3, 2003), pp. 6-14; MMTC Reply Comments, pp. 25-32. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* By implementing deregulation in stages, the Commission could measure the impact of deregulation while it is underway, and implement mid-course corrections when needed to protect diversity, competition, localism and minority ownership. MMTC proposed that the Commission would implement its new ownership rules over a ten-year period in five two-year stages. In even-numbered years, the Commission would use quantitative tests to measure diversity, competition, localism and minority ownership. If these tests showed ill health on any of these four factors, the Commission would take corrective steps in the odd-numbered years. If a subsequent even-year measurement showed continued ill health, the Commission could apply the brakes until market conditions change. Paxson Communications offered a similar proposal. The coefficients of a staged implementation plan could be worked out in a negotiated rulemaking involving representatives of all of the stakeholders in the proceeding. *Year First Proposed:* 2003. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* Yes. 14. Market-based, tradable diversity credits as an alternative to voice tests. *Location(s) in Record:* MMTC Reply Comments, pp. 34-38; MMTC April 28, 2003. *Ex Parte* , pp. 8-10. *Nature of Item:* Formal rulemaking proposal. *Summary of Item:* A system of market-based diversity credits would be created as an alternative to voice tests. A quantity of diversity credits would be given to SDBs, commensurate with the extent of their social and economic disadvantages. Diversity credits would also be given to the seller at the closing of a transaction that would result in greater structural diversity. If a transaction would add to concentration, the buyer would return a number of diversity credits to the Commission when the transaction closes. Finally, companies could buy or sell diversity credits to one another, thereby providing a market-based source of access to capital for SDBs. A similar paradigm used by the EPA has replaced much command-and-control environmental regulation. Diversity credits would

(1)incentivize diversity,

(2)disincentivize consolidation,

(3)place on the beneficiaries of consolidation the responsibility of paying for the remediation of some of consolidation's ill effects,

(4)serve as a mechanism to provide access to capital to SDBs,

(5)capture the measure of diversity more precisely than an inherently approximate voice test, and

(6)allow for easier administration than a system of voice tests and waivers. *Year First Proposed:* 2003. *Parallel Recommendation of Diversity Committee:* Transactional Transparency Recommendations, May 14, 2004, p. 3; White Paper on Diversity Credits, May 22, 2004. *Relevance of SDB Definition:* Yes. Section II: MMTC's Informal Suggestions to Stakeholders 15. Equity for specific and contemplated future acquisitions. *Location(s) in Record:* MMTC, Background Materials: Omnibus Media Ownership Proceeding Stakeholders Meeting, U.S. Department of Commerce, November 6, 2002, Tab 10 (“Twelve Minority Ownership Solutions”). *Nature of Item:* Private industry initiative; *but see* item 29 *infra,* proposing collaborative role for FCC in creating a fund or funds). *Summary of Item:* Broadcast companies would collaborate with one another and with institutional investors to create new targeted funds specializing in providing equity for broadcast new entrants. *Year First Proposed:* 1977. *Parallel Recommendation of the Diversity Committee:* None ( *but see* item 29 *infra* ). *Relevance of SDB Definition:* No. 16. Debt on favorable terms—enhanced outreach and access to debt financing by major financial institutions. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative ( *but see* items 28 and 29 *infra,* proposing collaborative role for FCC). *Summary of Item:* Broadcast companies would solicit commitments from large institutional lenders to work with new entrants in providing debt financing for acquisitions, with or without the participation of the SBA as a guarantor. *Year First Proposed:* 1977. *Parallel Recommendation of Diversity Committee:* None ( *but see* items 28 and 29 *infra* ). *Relevance of SDB Definition:* No. 17. Investments in institutions specializing in minority and small business financing. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative. *Summary of Item:* Broadcast companies would invest in existing funds with proven track records of success as participants in the financing of new entrants. The Quetzal/J.P. Morgan Fund, the Telecommunications Development Fund (TDF), the Broadcast Capital Fund and other Small Business Investment Corporations (SBICs) are examples of these funds. *Year First Proposed:* 1976. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 18. Assistance—cash and in-kind—to institutions that train future minority media owners. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative. *Summary of Item:* Media institutions would provide assistance to colleges and other programs that provide minorities the skill sets needed to transition from management to ownership. Examples of these institutions are Historically Black Colleges and Universities (HBCUs), Hispanic Serving Institutions

(HSIs)and other programs, particularly the National Association of Broadcasters Education Fund's (NABEF's) Broadcast Leadership Training

(BLT)Program. *Year First Proposed:* 1992. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 19. Creation of business planning centers. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative. *Summary of Item:* Business planning centers, typically affiliated with universities, would work one-on-one with minority entrepreneurs as they develop business plans and strategies, seek financing and pursue acquisitions. *Year First Proposed:* 1992. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 20. Executive loans, and engineers on loan to minority owned companies and applicants. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative. *Summary of Item:* The broadcasting industry would create an executive loan program, following the examples of similar programs in other industries. Loaned executives or engineers would work on the staffs of minority broadcasters fulltime for six months to two years. *Year First Proposed:* 1992. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 21. Enhanced access to broadcast transactions. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative. *Summary of Item:* Sellers would give minority new entrants a first look at their properties, allowing them a headstart for due diligence and financing. *Year First Proposed:* 2002. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 22. Nondiscrimination provisions in advertising sales contracts, designed to expressly avoid such practices as “no urban/no Spanish” dictates. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Contemplates FCC or FTC policy statement or rule. *Summary of Item:* Rep firms, ad agencies, broadcasters and advertisers would agree to use a standard provision in advertising sales contracts that would confirm that the parties to these contracts will not participate in a scheme to restrict advertising because of the membership in a minority group of the targets of the foregone advertising. The FTC or FCC would obtain certifications that this contract provision is always used in ad sales contracts. *Year First Proposed:* 1984. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 23. In-house incubation and mentoring programs for future minority owners. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Private industry initiative. *Summary of Item:* Established media companies would develop their own in-house programs to incubate and mentor future minority owners, including their own executives who might wish to transition into ownership. These initiatives would have no regulatory tie-ins. *Year First Proposed:* 1976. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 24. Enactment of tax deferral legislation designed, to the extent possible, to foster minority ownership. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Legislation; FCC has recommended it to Congress several times. *Summary of Item:* The Commission would continue to recommend to Congress the adoption of a tax deferral program to replace the former Tax Certificate Policy, under which a seller was able to defer capital gains taxes on the sale of a media property to a minority controlled firm. The new program would be focused on SDBs rather than only on minorities, and it would be extended to telecommunications. In recent years, Senator John McCain, Congressman Charles Rangel and Congressman Bobby Rush have each introduced legislation along these lines. *Year First Proposed:* 1977; in effect from 1978-1995 as the Tax Certificate Policy ( *see* 68 FCC2d 979 (1978)); repealed by Congress in 1995; restoration often proposed since 1995. *Parallel Recommendation of Diversity Committee:* Financial Issues Recommendations, June 14, 2004, pp. 14-15; Transactional Transparency Recommendations, May 14, 2004, pp. 2-3. *Relevance of SDB Definition:* Yes (included in bills sponsored by Senator John McCain and by Congressman Bobby Rush). 25. Examination of how to promote minority ownership as an integral part of all FCC general media rulemaking proceedings. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* Contemplates FCC policy statement or procedural rule. *Summary of Item:* All general mass media rulemaking proceedings (except individual FM or TV allotment proceedings) would include a request for comment on how the proposed rules affected minority entrepreneurship or could be tailored to have a positive impact on minority entrepreneurship. *Year First Proposed:* 1973. *Parallel Recommendation of Diversity Committee:* None. *Relevance of SDB Definition:* No. 26. Ongoing longitudinal research on minority and female ownership trends. *Location(s) in Record:* Twelve Minority Ownership Solutions. *Nature of Item:* FCC or NTIA research initiative. *Summary of Item:* The FCC or NTIA would conduct an annual, authoritative survey of minority and female ownership trends. As a longitudinal instrument, it could track this data over time, enabling scholars to examine the impact of rule changes on minority and female ownership. *Year First Proposed:* 1995. *Parallel Recommendation of Diversity Committee:* none. *Relevance of SDB Definition:* Yes. Section III: Proposals Sponsored by the Diversity Committee 27. Clearinghouse through which licensees could announce availability of stations for sale. *Location(s) in Record:* Diversity Committee, Financial Issues. Recommendations, June 14, 2004, pp. 13-14. *Nature of Item:* Private industry initiative. *Summary of Item:* The National Association of Broadcasters and/or the National Association of Media Brokers could create a website or other clearinghouse through which licensees with stations for sale could seek minority buyers. *Year First Proposed:* 2004. *Relevance of SDB Definition:* No. 28. Extension of the Community Reinvestment Act

(CRA)to encourage financial institutions to provide debt financing to broadcasters. *Location(s) in Record:* Diversity Committee, Financial Issues Recommendations, June 14, 2004, p. 15. *Nature of Item:* Recommendation for FCC to propose rule revisions to the Treasury Department. *Summary of Item:* The FCC would work with the Treasury Department to expand the application of the CRA credit to encourage financial institutions to place capital in private equity funds led by minority and female entrepreneurs, or in funds that invest in communities of color. A similar incentive mechanism could be explored with the appropriate regulatory agencies to encourage pension funds, insurance companies and other financial institutions to place monies with such equity funds. *Year First Proposed:* 2004. *Relevance of SDB Definition:* No. 29. Encourage more local and regional banks to participate in SBA guaranteed loan programs for broadcast and telecom ventures. *Location(s) in Record:* Diversity Committee, Financial Issues Recommendations, June 14, 2004, p. 16. *Nature of Item:* Recommendation for FCC and SBA to expand outreach to banks. *Summary of Item:* The FCC would work closely with the SBA to educate and encourage more local and regional banks (which have not been heavily involved in broadcast or telecom lending) to make loans through the SBA's 7(a) or 504 programs. *Year First Proposed:* 2004. *Relevance of SDB Definition:* No. 30. Establishment of a fund of funds. *Location(s) in Record:* Diversity Committee, Financial Issues Recommendations, June 14, 2004, pp. 16-17. *Nature of Item:* Private industry initiative. *Summary of Item:* The FCC would initiate discussions with the major pension funds to encourage the establishment of a fund of funds that would place capital with minority focused private equity funds such as those belonging to the National Association of Investment Companies (NAIC), which are led by minority management and which invest in opportunities led by women and minority entrepreneurs and/or in opportunities in underserved markets. *Year First Proposed:* 2004. *Relevance of SDB Definition:* No. 31. Revision of the Distress Sale Policy to institute case-by-case review of purchasers' qualifications. *Location(s) in Record:* Diversity Committee, Recommendation on the Distress Sale Policy, June 1, 2004; Financial Issues Recommendations, June 14, 2004, pp. 18-19. *Nature of Item:* Rulemaking recommendation. *Summary of Item:* The Distress Sale Policy, in existence since 1978 but seldom used recently, would be revised to ensure that it satisfies the narrow tailoring prong of strict scrutiny. In particular, a potential buyer, of any race, would demonstrate that its proposed service to the community would address needs unmet by existing media. Service to minority audiences could be an unmet need. *Year First Proposed:* 2004. *Relevance of SDB Definition:* No. 32. Reservation, for a company that finances or incubates an SDB, of first place in the queue to form a duopoly in a market for which only a limited number of duopolies are permissible. *Location(s) in Record:* Diversity Committee, Financial Issues Recommendations, June 14, 2004, pp. 17-18; White Paper on Incentive-Based Regulations, May 23, 2004, p. 9. *Nature of Item:* Rulemaking recommendation. *Summary of Item:* When the local market voice test limits how many LMAs may be created, a company wishing to have its application to create an LMA considered first could reserve a place in the application queue by financing or incubating an SDB. *Year First Proposed:* 1999. *Relevance of SDB Definition:* Yes. 33. Relaxation of foreign ownership restrictions ( *see* 47 U.S.C. 310(b)(4)). *Location(s) in Record:* Diversity Committee, Adoption of a Declaratory Ruling on Section 310(b)

(4)Waivers, December 10, 2004. *Nature of Item:* Recommendation for rulemaking or policy statement. *Summary of Item:* The Commission would consider whether a noncontrolling investment from foreigners ( *e.g.* up to 49%) could be permitted where the investment would help eliminate a barrier to access to capital for domestic minority owned broadcasters as contemplated by 47 U.S.C. 257. *Year First Proposed:* 2004. *Relevance of SDB Definition:* Yes. 34. Extension of divestiture deadlines in mergers where applicants have actively solicited bids for spin-off properties from SDBs. *Location(s) in Record:* Diversity Committee, Recommendation on Merger Review, October 15, 2004. *Nature of Item:* Recommendation for rulemaking or policy statement. *Summary of Item:* The Commission has recognized that minorities, especially new entrants, often need additional time to line up financing. Therefore, the Commission would announce a policy of generally affording more time for divestitures where the applicants solicit bids from SDBs for spinoff properties. *Year First Proposed:* 1999. *Relevance of SDB Definition:* Yes. Appendix B—Second Supplemental Initial Regulatory Flexibility Analysis 1. As required by the Regulatory Flexibility Act, as amended (“RFA”) 4 the Commission has prepared this Second Supplemental Initial Regulatory Flexibility Analysis (“Second Supplemental IRFA”) of the possible significant economic impact on a substantial number of small entities of the policies and rules considered in the Second Further Notice of Proposed Rule Making (“Second FNPRM”). Written public comments are requested on this Second Supplemental IRFA. Comments must be identified as responses to the Second Supplemental IRFA and must be filed by the deadlines for comments on the Second FNPRM. The Commission will send a copy of the Second FNPRM, including this Second Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). 5 In addition, the Second FNPRM and the Second Supplemental IRFA (or summaries thereof) will be published in the **Federal Register** . 6 4 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Contract With America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847

(1996)(“CWAAA”). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”). 5 See 5 U.S.C. 603(a). 6 See id. A. Need for, and Objectives of, the Proposed Rules 2. The Further Notice of Proposed Rule Making in MB Docket Nos. 06-121, *et al.* , 7 invites comment on how to address the issues raised by the opinion of the U.S. Court of Appeals for the Third Circuit in *Prometheus Radio Project* v. *FCC* , 8 and, pursuant to section 202(h) of the Telecommunications Act of 1996, on whether the media ownership rules are “necessary in the public interest as the result of competition.” 9 In *Prometheus* , the court affirmed some Commission decisions and remanded others for further Commission justification or modification. 10 In the Second FNPRM, we seek additional comment on specific proposals advocated by the Diversity and Competition Supporters (collectively, “MMTC”) to foster minority and female ownership. In addition, the Commission will consolidate into the broadcast ownership proceeding the record established in MB Docket No. 04-228, in which the Commission solicited public comment on constitutionally permissible ways to further the mandates of Section 257 of the Telecommunications Act of 1996, 11 which directs the Commission to identify and eliminate market entry barriers for small telecommunications businesses, and Section 309(j) of the Communications Act of 1934, as amended (the “Act”), 12 which requires the Commission to further opportunities in the allocation of spectrum-based services for small businesses and businesses owned by women and minorities. The Commission previously published a Supplemental IRFA in connection with the FNPRM. We issue this Second Supplemental IRFA in order to invite comment on the effects on small entities, including minorities and women, of the proposals identified in this Second FNPRM. We particularly solicit comment from all small business entities, including minority-owned and women-owned small businesses. 7 *2006 Quadrennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996* , Further Notice of Proposed Rule Making, 71 FR 45511, August 9, 2006 (“FNPRM”). 8 *Prometheus Radio Project, et al.* v. *F.C.C.* , 373 F.3d 372

(2004)(“ *Prometheus* ”), *stay modified on rehearing* , No. 03-3388 (3d Cir. Sept. 3, 2004) (“ *Prometheus Rehearing Order* ”), *cert. denied* , 73 U.S.L.W. 3466 (U.S. June 13, 2005) (Nos. 04-1020, 04-1033, 04-1036, 04-1045, 04-1168 and 04-1177); *see also 2002 Biennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996* , 68 FR 46286, August 5, 2003 (“ *2002 Biennial Review Order* ”). 9 See Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, sec. 202(h)

(1996)(“1996 Act”); Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, sec. 629, 118 Stat. 3

(2004)(“Appropriations Act”) (amending sections 202(c) and 202(h) of the 1996 Act). Section 202(h) requires the Commission to periodically review its media ownership rules to determine “whether any of such rules are necessary in the public interest as the result of competition” and to “repeal or modify any regulation it determines to be no longer in the public interest.” 10 See *Prometheus Rehearing Order* . Accordingly, except for revisions to the local radio ownership rule, the rule changes made in the *2002 Biennial Review Order* remain stayed, and the preexisting ownership rules remain in effect. 11 47 U.S.C. 257. 12 47 U.S.C. 309(j). B. Legal Basis 3. The Second FNPRM is adopted pursuant to sections 1, 2(a), 4(i), 257, 303, 307, 309, 310 and 613 of the Act, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303, 307, 309, 310, and 533, and Section 202(h) of the Telecommunications Act of 1996. C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply 4. 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. 13 The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental entity” under Section 3 of the Small Business Act. 14 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 15 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 SBA. 16 13 5 U.S.C. 603(b)(3). 14 Id. sec. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to the RFA, the statutory definition of a small business applies, “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the **Federal Register** .” 15 Id. 16 15 U.S.C. 632. 5. Television Broadcasting. In this context, the application of the statutory definition to television stations is of concern. The Small Business Administration defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” 17 According to Commission staff review of the BIA Financial Network, Inc. Media Access Pro Television Database as of July 10, 2007, about 880 (68 percent) of the 1,300 commercial television stations in the United States have revenues of $13 million or less. However, in assessing whether a business entity qualifies as small under the above definition, business control affiliations 18 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 17 OMB, North American Industry Classification System: United States, 1997, at 508-09

(1997)(NAICS Code 513120, which was changed to 515120 in October 2002). This category description continues, “These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources.” Separate census categories pertain to businesses primarily engaged in produced programming. *See id.* at 502-505, NAICS Code 512110, Motion Picture and Video Production; Code 512120, Motion Picture and Video Distribution; Code 512191, Teleproduction and Other Post-Production Services; and Code 512199, Other Motion Picture and Video Industries. 18 “[Business concerns] are affiliates of each other when one [business concern] controls or has the power to control the other, or a third party or parties controls or has the power to control both.” 13 CFR 121.103(a)(1). 6. An element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 7. Radio Broadcasting. The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business. 19 Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” 20 According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of July 10, 2007, about 10,520 (95 percent) of 11,055 commercial radio stations in the United States have revenues of $6.5 million or less. We note, however, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations 21 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 19 13 CFR 121.201. 20 See NAICS Code 515112. 21 “[Business concerns] are affiliates of each other when one [business concern] controls or has the power to control the other, or a third party or parties controls or has the power to control both.” 13 CFR 121.103(a)(1). 8. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 9. Daily Newspapers. The SBA has developed a small business size standard for the census category of Newspaper Publishers; that size standard is 500 or fewer employees. 22 Census Bureau data for 2002 show that there were 5,159 firms in this category that operated for the entire year. 23 Of this total, 5,065 firms had employment of 499 or fewer employees, and an additional 42 firms had employment of 500 to 999 employees. Therefore, we estimate that the majority of Newspaper Publishers are small entities that might be affected by our action. 22 13 CFR 121.201; NAICS Code 511110. 23 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization),” Table 5, NAICS Code 511110 (issued Nov. 2005). D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 10. Depending on the rules adopted as a result of this Second FNPRM, the Report and Order (R&O) ultimately adopted in this proceeding may contain new or modified information collections. We anticipate that none of the changes would result in an increase to the reporting and recordkeeping requirements of broadcast stations, newspapers, or applicants for licenses. As noted above, we invite small business entities to comment in response to the Second FNPRM. E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered 11. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others):

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

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

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

(4)an exemption from coverage of the rule, or any part thereof, for small entities. 24 24 5 U.S.C. 603(c). 12. We are directed under law to describe any alternatives we consider, including alternatives not explicitly listed above. 25 The Second FNPRM describes and seeks comment on the minority ownership proposals made by MMTC in comments in the 2002 biennial ownership proceeding, as well as the recommendations of the Diversity Committee, and consolidates the record developed in MB Docket No. 04-228 with the record in MB Docket Nos. 06-121, *et al.* The proposals are intended to promote minority and female ownership, and we seek comment on the extent to which they would benefit small businesses, including those owned by minorities and women. We especially encourage small entities to comment on the proposals under consideration in this consolidated proceeding. We do not propose specific rules in the Second FNRPM but rather seek comment on a number of different proposals that could have an impact on small entities. Accordingly, we will describe the steps taken to minimize the significant impact on small entities and the significant alternatives that we consider in the Final Regulatory Flexibility Analysis. 25 5 U.S.C. 603(b). F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules None. [FR Doc. E7-15456 Filed 8-7-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 71 [OST Docket No. 2007-28746] RIN 2105-AD71 Standard Time Zone Boundary in Southwest Indiana AGENCY: Department of Transportation (DOT), Office of the Secretary (OST). ACTION: Supplemental notice of proposed rulemaking. SUMMARY: DOT is providing notice of a petition from the Board of Commissioners in Perry County, IN, to change the time zone boundary for the County from the Central Time Zone to the Eastern Time Zone, and DOT's request for additional information from Perry County to aid in its determination of whether this change would serve the convenience of commerce, the statutory standard for a time zone change. Other persons supporting or opposing the change to Perry County's time zone boundary are also requested to provide comment. The final rule will be based on all of the information received during the entire rulemaking proceeding and whether the statutory standard has been met. DATES: Comments should be received by August 31, 2007, to be assured of consideration. Comments received after that date will be considered to the extent practicable. If the time zone boundary is changed as a result of this rulemaking, the effective date would be November 4, 2007. ADDRESSES: You may submit comments by any of the following methods: • *Web site: http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590-001. • *Hand Delivery:* Room W12-140 on the plaza level of the U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *General Instructions:* All submissions must include the agency name and docket number (OST Docket Number 2007-28746) or Regulatory Identification Number (RIN 2105-AD71) for this rulemaking. Note that all comments received will be posted without change (including any personal information provided) to *http://dms.dot.gov.* Please refer to the Privacy Act heading under Regulatory Notices. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room W12-140 on the plaza level of the U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: Judith S. Kaleta, Office of the General Counsel, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, *indianatime@dot.gov,*

(202)493-0992. SUPPLEMENTARY INFORMATION: Knox, Daviess, Martin, Pike, and Dubois Counties (the Petitioning Counties) and Perry County were six of eight counties that moved from the Eastern Time Zone to the Central Time Zone under DOT's January 2006 final rule to establish a standard time zone boundary in Indiana (71 FR 3228). On July 19, 2007, DOT published a notice of proposed rulemaking in the **Federal Register** (72 FR 39593) finding that, based on a Joint Petition filed by the Petitioning Counties and three Supplemental Responses, the Petitioning Counties provided enough information to justify proposing to change their boundary from the Central Time Zone to the Eastern Time Zone. Under our normal procedures, we do not take action unless a county makes a clear showing that the proposed change of time zone would meet the statutory standard. However, as we noted in our previous rulemaking on time zone boundary changes in Indiana, this has been an unusual case because of the number of counties involved, their relationship to each other and to other neighboring counties, and the circumstances leading up to the petitions. Perry County is located in southwest Indiana, is contiguous to the Petitioning Counties, and had its time zone changed at the same time as the Petitioning Counties. Therefore, DOT asked for comments with regard to Perry County in the Notice of Proposed Rulemaking concerning standard time zone boundary in Southwest Indiana published in the **Federal Register** on July 19, 2007. DOT stated, “We also understand that this proposal may have an impact on surrounding Counties, particularly Perry County which changed time zone boundaries at the same time as the Petitioning Counties * * *. Our decision in the final rule will be made on the basis of information and comments developed during the entire rulemaking proceeding.” DOT specifically requested comment on whether the proposed change would serve the convenience of commerce, the statutory standard for a time zone change, and whether the time zone boundary should be changed for other contiguous counties in southwestern Indiana. At the time of the NPRM, DOT was unaware that, on June 1, 2007, Perry County submitted a Petition (2007 Perry County Petition) (OST 2007-28746-654) for a time zone boundary change back to the Eastern Time Zone. DOT has now reviewed the 2007 Perry County Petition and the exhibits attached to it. As set forth below, the 2007 Perry County Petition addresses all of the factors that we consider in these proceedings. However, on July 31, 2007, DOT wrote to Perry County requesting additional information to justify that changing back Perry County to the Eastern Time Zone would serve the convenience of commerce. DOT has summarized below the petition Perry County filed in support of its request to change to the Central Time Zone (the 2005 Perry County Petition), the 2007 Perry County Petition, and DOT's questions on the information submitted by Perry County. DOT seeks comments on the justification provided by Perry County and responsive information to its questions. 2005 and 2007 Perry County Petitions and DOT's Questions Community Imports and Exports The 2005 Perry County Petition to move from the Eastern Time Zone to the Central Time Zone stated that the primary employers in the county supply products to customers located throughout North America although most of the customer base is located in the Midwest or the South. In addition, it noted that Perry County's newer employers are considered “just-in-time” suppliers to the automotive industry which require a location less than a day's distance from their respective customers. In lieu of answering the question on community imports and exports with an overview or analysis of the matter, the 2007 Perry County Petition summarizes and attaches 16 letters from businesses, schools, a hospital, and individuals. According to the 2007 Perry County Petition, the letters express “a desire to change to the Eastern Time Zone” because business conducted on Eastern time and difference in time zones “causes operating challenges on a daily basis.” The 2007 Perry County Petition notes that “businesses in Perry County have in effect lost four hours of each day that they can deal with customers and suppliers from the Eastern Time Zone: One hour in the morning, two hours at lunch, and one hour at the end of the day.” In further support of the Eastern Time Zone request, the 2007 Perry County Petition specifically references three diverse businesses: The Southern Indiana Rural Electric Cooperatives, which would be the only Hoosier Energy Power Network out of 17 that would be in the Central Time Zone and claims metering and billing problems; Kleeman Masonary, Inc, which usually travels east in its construction business; and Perry County Memorial Hospital, which has difficulties dealing with insurance companies in the Eastern Time Zone. While the 2007 Perry County Petition claims the 16 letters attached to it are from businesses and schools, DOT notes that two of the letters were written on business letterhead but merely provide a preference for a time zone without any justification. Another letter states that it is “more cumbersome” to be on a different time zone, but provides no explanation. Similarly, the 2007 Perry County Petition states that the Perry County Chamber of Commerce has informed the Perry County Commissioners that “there are 386 total employers located in Perry County” and that 41% of businesses have expressed a preference for the Central Time Zone. The 2007 Perry County Petition does not provide the reasons for the “preference.” In order to assess the impact of a time zone change on businesses, DOT requests comments on the time zone impact on businesses in the County and the reasons for the time zone preferences expressed by Perry County businesses. Television and Radio Broadcasts With regard to television broadcasts, the 2005 Perry County Petition stated that the County was “located within the Area of Dominant Influence for the Evansville, Indiana television market.” The 2005 Perry County Petition also stated that Perry County “receives cable and over-the-air broadcasts from the Louisville, Kentucky market as well.” The 2007 Perry County Petition makes the same statements concerning television broadcasts. With regard to radio broadcasts, the 2005 Perry County Petition stated that the “majority of the stations serving Perry County are located either in the Central Daylight Saving or Eastern Standard time zones.” The 2007 Perry County Petition elaborates on its earlier submission by providing a list of AM and FM radio signals for five cities within the County based on information from radio-locator.com. As the 2007 Perry County Petition notes, residents in the northern part of the County receive radio signals from the Eastern Time Zone while residents in the southern part of the County receive radio signals from the Central Time Zone. While the Perry County Petition provides radio signal information for five cities, it does not provide any information about the population of those cities. In order to assess the impact of a time zone change on television and radio broadcasts, DOT seeks comments on this issue generally and particularly requests population data for Bristow, Cannelton, Leopold, St. Croix, and Tell City, in Perry County. Newspapers The 2005 Perry County Petition stated, “The primary daily newspaper that serves Perry County is the *Evansville Courier & Press* ” in the Central Time Zone and that the local county newspaper, which publishes editions twice per week, also operates a printing plant that prints weekly newspapers for two Central Time Zone communities. On the other hand, the 2005 Perry County Petition also noted that the *Louisville Courier & Journal,* from the Eastern Time Zone, maintains drop boxes for the Sunday edition at several area convenience stores. Daily service, however, is unavailable. The 2007 Perry County Petition provides more detailed information on newspaper use within the County. First, the 2007 Perry County Petition now asserts that Perry County residents “primarily” receive their news from the local newspaper, The *Perry County News,* which is published twice a week. Second, it includes circulation numbers for the *Evansville Courier & Press.* According to the 2007 Perry County Petition, there are 1,901 weekday subscriptions and 2,271 Sunday subscriptions. While this is consistent with Perry County's original request for the Central Time Zone, the 2007 Perry County Petition claims that the subscriptions support the Eastern Time Zone because the population base is in excess of 18,000. Third, it notes that the *Indianapolis Star* has a very small circulation in the County. With regard to newspaper publishing, DOT seeks comment on this issue generally and is also interested in the number of subscriptions of * The Perry County News * and the *Indianapolis Star;* the total number of households in Perry County; whether the residents of Perry County receive any newspapers from Daviess, Dubois, Knox, Martin, or Pike Counties and; if residents do receive newspaper from these counties, the circulation numbers of those newspapers within Perry County. Bus and Passenger Rail Service The 2005 Perry County Petition states that there are no bus or passenger rail services in the community. The 2007 Perry County Petition explains bus service in more detail, contrasting bus service provided in Evansville and Louisville, and freight rail services. The 2007 Perry County Petition notes that Evansville is approximately 50 miles away and offers services to western and southern routes. In contrast, Louisville is approximately 75 miles away and offers service to the north, northeast, and south. As for rail service, although DOT requested information on passenger rail service, the 2007 Perry County Petition refers only to freight rail service that carries goods through several southern Indiana counties. DOT seeks comment on the bus information submitted by Perry County, but has no specific request for additional data on this issue. Airports/Airline Services The 2005 Perry County Petition states that the nearest airport is in Evansville, located in the Central Time Zone, approximately 55 miles from Perry County. The 2005 Perry County Petition also notes that that there is an airport in Louisville, in the Eastern Time Zone, 75 miles from Perry County. The 2007 Perry County Petition reiterates the same information with regard to airport location and supplements it by referring to the number of departures and destinations and the impact of early morning flights on travelers. According to the 2007 Perry County Petition, Evansville Regional Airport has approximately only 35 daily departures in contrast to Louisville International Airport which offers daily departures to “around 140 domestic destinations plus 53 international destinations.” The 2007 Perry County Petition also notes that because Louisville International Airport is in the Eastern Time Zone, it is “extremely difficult” to take early morning flights unless travelers spend the night at or near the airport. DOT seeks comment on the airport/airline services information submitted by Perry County, but has no specific request for additional data on this issue. Worker Commuting Patterns The 2005 Perry County Petition states that 3,267 persons, or 26% of its total workforce, reside in Perry County but work outside of the County. Of the top five areas to which Perry County residents commute for work, four were in the Central Time Zone and, the fifth, Dubois County, was at that time requesting to be located in the Central Time Zone. (Dubois County is now requesting to be moved back to the Eastern Time Zone.) A STATS Indiana Annual Commuting Trends Profile based on Indiana IT-40 Returns for Tax Year 2003 was attached to the Petition. The 2007 Perry County Petition also refers to the Perry County workforce. The actual numbers provided differ from the earlier submission and are now based on STATS Indiana Annual Commuting Trends Profile based on Indiana IT-40 Returns for Tax Year 2005. Nevertheless, the percentage of the workforce that leaves the County did not change; it remains 26%. DOT seeks comment on the worker commuting patterns information submitted by Perry County, but has no specific request for additional data on this issue. The Community's Economy/Economic Development The 2005 Perry County Petition discussed the major elements of the community's economy, the improvement in the County's economy, and efforts to ensure that the local economy continues to improve. The Perry County Petition noted “a dramatic shift from traditional woodworking industries to a significant transportation cluster.” It stated that the “primary employers manufacture products for the automotive, heavy truck, and aerospace industries.” The 2005 Perry County Petition also noted the planning and infrastructure the County has put in place to support future economic growth and its partnerships to enhance growth. The 2007 Perry County Petition answer to the question on the community's economy is nearly the same as the 2005 Perry County Petition. There is only one change. The 2007 Perry County Petition eliminates, in this response, reference to “a regional rural hospital which serves counties in Southern Indiana and Western Kentucky, located in the Central time zone.” However, it includes that reference to the hospital in response to the question concerning health care. In order to assess the impact of a time zone change on the community's economy, DOT requests comment on the community's economy and information on whether Perry County has entered into economic partnerships with Daviess, Dubois, Knox, Martin, or Pike Counties or other Counties in southern Indiana and, if yes, the nature of these partnerships and how a time zone change would affect these partnerships. Schools, Recreation, Health Care, or Religious Worship With regard to schools, the 2005 Perry County Petition emphasized post-secondary education. While the 2005 Perry County Petition recognized that Perry County residents attend post-secondary schools in the Eastern and Central Time Zones, it noted that more Perry County residents go to the University of Southern Indiana in the Central Time Zone than any other school. The 2007 Perry County Petition shifts the focus from post-secondary education to the high school level. It notes that there are no school districts in Perry County that are in more than one time zone, but indicates that the schools cross time zones to participate in sporting events. Exhibits 10 through 14 to the 2007 Perry County Petition provide information on the athletic conferences in southern Indiana, and the schedules for basketball, volleyball, football, cross country, baseball, and softball. The 2007 Perry County Petition asserts that playing games in different time zones “causes extreme complications with scheduling and arrival and departure times for the schools.” DOT seeks comment on the information submitted by Perry County with regard to schooling, but has no specific request for additional data. The 2005 Perry County Petition did not address recreation or whether County residents left the County to pursue recreational interests. The 2007 Perry County Petition, however, states “Perry County prides itself on its outdoor recreational activities including the vast amounts of Hoosier National Forest and ready access to the Ohio River for recreation such as boating, fishing and hunting.” The 2007 Perry County Petition also refers to recreational softball, baseball, and soccer leagues that could play later into the evening if the County were located in the Eastern Time Zone. In order to assess the impact of a time zone change on recreation, DOT requests information on whether residents leave Perry County for recreation and the standard of time observed in the places where they go for this purpose. With regard to health care, the 2005 Perry County Petition noted that Perry County is “home to a regional rural hospital.” It also noted that residents also “primarily travel to Evansville and Jasper, Indiana” to purchase health services. The 2007 Perry County Petition also notes the regional hospital and refers to a letter from Perry County Memorial Hospital that is “in favor of the Eastern Time Zone for the reasons set forth in the letter.” The letter states that the hospital conducts “a lot of business with our State Capitol in Indianapolis” and that “the large insurance companies” that it does business with are also located there. While the letter provides business reasons for an Eastern Time Zone preference, it does not address the impact of the current time zone on Perry County residents and whether they are referred to health care providers in other time zones. In order to assess the impact of a time zone change on health care, DOT requests comments on this issue and information on the number of patients referred from Perry County to health care providers in Evansville, Jasper, Indianapolis, and Louisville. Neither the 2005 Perry County Petition nor the 2007 Perry County Petition addressed religious worship and DOT has no additional questions concerning this issue. Regional Connections In the original rulemaking proceeding to change time zone boundaries from the Eastern Time Zone to the Central Time Zone, petitioning counties and commenters advocated for a move by referring to their ties to other Indiana counties currently in the Central Time Zone. DOT carefully reviewed this data and utilized it in reaching its decision. DOT recognizes the importance of regional connections and the benefits of similar time zones and regional ties among counties. As described in DOT's January 2006 Final Rule's summary of the hearings and comments to the docket, the Southwestern Counties have strong regional ties to each other and Central Time Zone Counties. DOT stated, “While Daviess, Dubois, Knox, Martin, and Perry border other Indiana counties in the Eastern Time Zone, their ties to those counties are not as strong as they are to each other and to other counties to their south, which are currently in the Central Time Zone. Along with Pike, these counties are located in the same workforce, commerce, transportation, and education regions designated by Indiana. Remaining in the same time zone and maintaining their regional ties better position counties to realize advantages in economic, cultural, social, and civic activities, thereby serving the convenience of commerce.” The 2007 Perry County Petition addresses regional connections by noting that at DOT's hearing on time zones in November 2005, “Perry County representatives stated that one of the reasons for the requested change was the fact that Dubois County was also petitioning to be placed in the Central Time Zone.” It also notes that five other counties in the area petitioned for a time zone change. DOT seeks comment on the regional connectivity of Perry County with other counties in southern Indiana, including those that have and have not petitioned for a time zone change and how a time zone change would affect regional connections. Request for Comments To aid us in our consideration of whether a time zone change would be for the convenience of commerce, we ask for comments on the impact on commerce of a change in the time zone and whether a new time zone would improve the convenience of commerce. The comments should address the impact on such things as economic, cultural, social, and civic activities and how time zone changes affect businesses, communication, transportation, and education. The comments should be as detailed as possible, providing the basis of the information including factual data or surveys. Comment Period It is important to resolve this rulemaking expeditiously so that we can provide ample notice if a change to the Petitioning Counties' and Perry County's time zone boundaries is adopted. Nevertheless, we are extending the time for public comments to August 31, 2007. We expect that the comment period is adequate time to submit the necessary data, which is based on currently available information. Issued in Washington, DC on August 3, 2007. D.J. Gribbin, General Counsel. [FR Doc. 07-3864 Filed 8-3-07; 2:56 pm]

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