Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations 34561

a. Revising ‘‘Petroleum oils and nonpetroleum oils other than animal fats

and vegetable oils’’ to read ‘‘Petroleum

Oils and Non-Petroleum Oils Other

Than Animal Fats and Vegetable Oils’’

in sections 3.0 and 4.0;

b. Revising ‘‘near shore’’ to read

‘‘nearshore’’ in the last sentence of

section 7.7, the last sentence of section

10.2.3, and the last sentence of section

10.7;

c. Revising ‘‘petroleum’’ to read

‘‘animal fats and vegetable’’ in the last

sentence of section 8.2.1;

d. Removing section 9.2.1 and

revising section 9.2 to read as set forth

below;

e. Revising section 10.5.2 to read as

set forth below;

f. Revising ‘‘Near shore’’ to read

‘‘Nearshore’’ in section 10.5.4; and

g. Revising ‘‘Environments’ ’’ to read

‘‘Environments’’ in section 13.3(2).

The revisions read as follows:

Appendix E to Part 112—Determination

and Evaluation of Required Response

Resources for Facility Response Plans

* * * * *

9.0 Determining Response Resources

Required for Medium Discharges—

Animal Fats and Vegetable Oils

* * * * *

9.2 Complexes that are regulated by

EPA and the USCG must also consider

planning quantities for the

transportation-related transfer portion of

the facility. Owners or operators of

complexes that handle, store, or

transport animal fats or vegetable oils

must plan for oil discharge volumes for

a medium discharge. For non-petroleum

oils, there is no USCG planning level

that directly corresponds to EPA’s

‘‘medium discharge.’’ Although the

USCG does not have planning

requirements for medium discharges,

they do have requirements (at 33 CFR

154.545) to identify equipment to

contain oil resulting from an operational

discharge.

* * * * *

10.0 Calculating Planning Volumes for

a Worst Case Discharge—Animal Fats

and Vegetable Oils.

* * * * *

10.5.2 With a specific worst case

discharge identified, the planning

volume for on-water recovery can be

identified as follows:

Worst case discharge: 21 million gallons

(500,000 barrels) of Group B vegetable

oil

Operating Area: Inland

Planned percent recovered floating

vegetable oil (from Table 6, column

Nearshore/Inland/Great Lakes):

Inland, Group B is 20%

Emulsion factor (from Table 7): 2.0

Planning volumes for on-water recovery:

21,000,000 gallons × 0.2 × 2.0 =

8,400,000 gallons or 200,000 barrels.

Determine required resources for onwater recovery for each of the three

tiers using mobilization factors (from

Table 4, column Inland/Nearshore/

Great Lakes)

Inland Operating Area Tier 1 Tier 2 Tier 3

Mobilization factor by which you multiply planning volume .................................................................... .15 .25 .40

Estimated Daily Recovery Capacity (bbls) .............................................................................................. 30,000 50,000 80,000

* * * * *

4. Amend Tables 2, 6, and 7 to

appendix E to Part 112 by:

a. Revising ‘‘Oil’’ to read ‘‘oil’’ in the

heading of the middle column under

Rivers and canals in Table 2;

b. Revising ‘‘Near shore/Inland’’ to

read ‘‘Nearshore/Inland/Great Lakes’’ in

the heading of the column in Table 2;

c. Revising ‘‘Near shore/Inland Great

Lakes’’ to read ‘‘Nearshore/Inland/Great

Lakes’’ in the heading of the column in

Table 6; and

d. Revising ‘‘section 1.2.1 and 1.2.9’’

to read ‘‘sections 1.2.1 and 1.2.9’’ in the

Note following Table 6 and the Note

following Table 7.

Appendix F to Part 112 [Amended]

5. Amend appendix F to part 112 by

revising ‘‘fax 267–4085/4065’’ to read

‘‘fax (202) 267–4085’’ in section 1.8.3.

[FR Doc. 01–16294 Filed 6–28–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 180

[OPP–301143; FRL–6788–5]

RIN 2070–AB78

Bifenazate; Pesticide Tolerances for

Emergency Exemptions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes a

time-limited tolerance for combined

residues of bifenazate in or on tomato.

This action is in response to EPA’s

granting of an emergency exemption

under section 18 of the Federal

Insecticide, Fungicide, and Rodenticide

Act authorizing use of the pesticide on

tomato. This regulation establishes a

maximum permissible level for residues

of bifenazate in this food commodity.

The tolerance will expire and is revoked

on June 30, 2003.

DATES: This regulation is effective June

29, 2001. Objections and requests for

hearings, identified by docket control

number OPP–301143, must be received

by EPA on or before August 28, 2001.

ADDRESSES: Written objections and

hearing requests may be submitted by

mail, in person, or by courier. Please

follow the detailed instructions for each

method as provided in Unit VII. of the

SUPPLEMENTARY INFORMATION. To ensure

proper receipt by EPA, your objections

and hearing requests must identify

docket control number OPP–301143 in

the subject line on the first page of your

response.

FOR FURTHER INFORMATION CONTACT: By

mail: Barbara Madden, Registration

Division (7505C), Office of Pesticide

Programs, Environmental Protection

Agency, 1200 Pennsylvania Ave., NW.,

Washington, DC 20460; telephone

number: (703) 305–6463; and e-mail

address: madden.barbara@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by

this action if you are an agricultural

producer, food manufacturer, or

pesticide manufacturer. Potentially

affected categories and entities may

include, but are not limited to:

34562 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations

Categories NAICS

codes

Examples of potentially affected entities

Industry 111 Crop production

112 Animal production

311 Food manufacturing

32532 Pesticide manufacturing

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 the table could also

be affected. The North American

Industrial Classification System

(NAICS) codes have been provided to

assist you and others in determining

whether or not this action might apply

to certain entities. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed under FOR FURTHER INFORMATION

CONTACT.

B. How Can I Get Additional

Information, Including Copies of This

Document and Other Related

Documents?

1. Electronically. You may obtain

electronic copies of this document, and

certain other related documents that

might be available electronically, from

the EPA Internet Home Page at http://

www.epa.gov/. To access this

document, on the Home Page select

‘‘Laws and Regulations,’’ ‘‘Regulations

and Proposed Rules,’’ and then look up

the entry for this document under the

‘‘Federal Register—Environmental

Documents.’’ You can also go directly to

theFederal Register listings at http://

www.epa.gov/fedrgstr/. A frequently

updated electronic version of 40 CFR

part 180 is available at http://

www.access.gpo.gov/nara/cfr/

cfrhtml_00/Title_40/40cfr180_00.html, a

beta site currently under development.

2.In person. The Agency has

established an official record for this

action under docket control number

OPP–301143. The official record

consists of the documents specifically

referenced in this action, and other

information related to this action,

including any information claimed as

Confidential Business Information (CBI).

This official record includes the

documents that are physically located in

the docket, as well as the documents

that are referenced in those documents.

The public version of the official record

does not include any information

claimed as CBI. The public version of

the official record, which includes

printed, paper versions of any electronic

comments submitted during an

applicable comment period is available

for inspection in the Public Information

and Records Integrity Branch (PIRIB),

Rm. 119, Mall #2, 1921 Jefferson Davis

Hwy., Arlington, VA, from 8:30 a.m. to

4 p.m., Monday through Friday,

excluding legal holidays. The PIRIB

telephone number is (703) 305–5805.

II. Background and Statutory Findings

EPA, on its own initiative, in

accordance with sections 408(e) and 408

(l)(6) of the Federal Food, Drug, and

Cosmetic Act (FFDCA), 21 U.S.C. 346a,

is establishing a tolerance for combined

residues of the insecticide bifenazate,

(hydrazine carboxylic acid, 2-(4-

methoxy-[1,1’-biphenyl]-3-yl-, 1-

methylethyl ester) and

diazenecarboxylic acid, 2-(4-methoxy-

[1,1’-biphenyl]-3-yl-, 1-methylethyl

ester, in or on tomato at 0.70 part per

million (ppm). This tolerance will

expire and is revoked on June 30, 2003.

EPA will publish a document in the

Federal Register to remove the revoked

tolerance from the Code of Federal

Regulations.

Section 408(l)(6) of the FFDCA

requires EPA to establish a time-limited

tolerance or exemption from the

requirement for a tolerance for pesticide

chemical residues in food that will

result from the use of a pesticide under

an emergency exemption granted by

EPA under section 18 of FIFRA. Such

tolerances can be established without

providing notice or period for public

comment. EPA does not intend for its

actions on section 18 related tolerances

to set binding precedents for the

application of section 408 and the new

safety standard to other tolerances and

exemptions. Section 408(e) of the

FFDCA allows EPA to establish a

tolerance or an exemption from the

requirement of a tolerance on its own

initiative, i.e., without having received

any petition from an outside party.

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) 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) 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. . . .’’

Section 18 of the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA)

authorizes EPA to exempt any Federal

or State agency from any provision of

FIFRA, if EPA determines that

‘‘emergency conditions exist which

require such exemption.’’ This

provision was not amended by the Food

Quality Protection Act (FQPA). EPA has

established regulations governing such

emergency exemptions in 40 CFR part

166.

III. Emergency Exemption for

Bifenazate on Tomato and FFDCA

Tolerances

Texas has the greatest acreage of

tomatoes under greenhouse production

in the United States. Major production

facilities are located in Jefferson Davis,

Presidio, Atascosa, Frio, Limestone,

Russ, Dallas, Tarrant, Willbarger,

Commanche, and Lubbock counties.

Small scale production facilites are

located throughout the state. Virginia

has approximately 50 acres of

greenhouse tomatoes.

Greenhouse tomatoes are

indeterminate varieties so production

can be continuous. In general, most

production facilities are planted twice

annually. In the past 3 years there has

been a continuing trend of greater early

season pest mite densities. Spider mites

feeding on the underside of leaves

usually results in leaf yellowing and

browning, but with high densities can

result in plant death. Acaricides used to

control spider mites must be efficacious

over a wide range of pest mite species

and should be effective against all life

stages (egg to adult). In addition,

maintenance of natural beneficial

predatory mite species is desired for

development of integrated pest

management (IPM) programs. Bifenazate

has been shown in tests on other crops

to fulfill these requirements.

Numerous spider mites species can be

pests in greenhouse tomato production.

Nine insecticides are registered for mite

control on greenhouses tomatoes.

However, each of these has limited

efficacy or does not fit into a continuous

harvest operation or IPM program.

Dicofol, endosulfan, malathion,

dimethoate, and disulfoton are not

effective against all pest mite species

and are hard on beneficials. Due to the

lack of efficacy against a broad spectrum

of mites, use of these acaricides may

require augmentation with additional

insecticides in order to control multiple

pest species. Use of these insecticides

would disrupt the ongoing biological

control programs established for other

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations 34563

tomato pests (i.e. it would take 2-8

weeks to re-establish beneficial

populations to acceptable levels).

Abamectin has good efficacy but the

extended REI (7 days) and PHI (7 days)

make it impractical for use in

indeterminate tomato production.

Cinnamaldehyde is only moderately

efficacious and can be phytotoxic to

some tomato plants. Neem and M-pede

(insecticidal soap) are only useful for

spotty outbreaks where individual

plants can be treated as both products

cause leaf scorch.

No effective non-chemical practices

are available which would provide

adequate control of spider mites in

greenhouse tomato production.

Biological agents can provide some

benefits but their use is minimal due to

unfavorable economics, slow activity,

difficulty to use, and host selectivity.

Mite pest species are often capable of

increasing population densities faster

than the associate biological control

agents, resulting in crop loss. In order to

produce a high value tomato crop,

growers must combine selective

insecticides with biological control

agents.

During the 2001 growing season for

greenhouse tomato production, growers

could possibly incur up to a 25% yield

loss from spider mite infestation. EPA

has authorized under FIFRA section 18

the use of bifenazate on tomato for

control of spider mites in Texas and

Virginia. After having reviewed the

submission, EPA concurs that

emergency conditions exist in these

states.

As part of its assessment of this

emergency exemption, EPA assessed the

potential risks presented by residues of

bifenazate in or on tomato. In doing so,

EPA considered the safety standard in

FFDCA section 408(b)(2), and EPA

decided that the necessary tolerance

under FFDCA section 408(l)(6) would be

consistent with the safety standard and

with FIFRA section 18. Consistent with

the need to move quickly on the

emergency exemption in order to

address an urgent non-routine situation

and to ensure that the resulting food is

safe and lawful, EPA is issuing this

tolerance without notice and

opportunity for public comment as

provided in section 408(l)(6). Although

this tolerance will expire and is revoked

on June 30, 2003, under FFDCA section

408(l)(5), residues of the pesticide not in

excess of the amounts specified in the

tolerance remaining in or on tomato

after that date will not be unlawful,

provided the pesticide is applied in a

manner that was lawful under FIFRA,

and the residues do not exceed a level

that was authorized by this tolerance at

the time of that application. EPA will

take action to revoke this tolerance

earlier if any experience with, scientific

data on, or other relevant information

on this pesticide indicate that the

residues are not safe.

Because this tolerance is being

approved under emergency conditions,

EPA has not made any decisions about

whether bifenazate meets EPA’s

registration requirements for use on

tomato or whether a permanent

tolerance for this use would be

appropriate. Under these circumstances,

EPA does not believe that this tolerance

serves as a basis for registration of

bifenazate by a State for special local

needs under FIFRA section 24(c). Nor

does this tolerance serve as the basis for

any State other than Texas and Virginia

to use this pesticide on this crop under

section 18 of FIFRA without following

all provisions of EPA’s regulations

implementing section 18 as identified in

40 CFR part 166. For additional

information regarding the emergency

exemption for bifenazate, contact the

Agency’s Registration Division at the

address provided underFOR FURTHER

INFORMATION CONTACT.

IV. Aggregate Risk Assessment and

Determination of Safety

EPA performs a number of analyses to

determine the risks from aggregate

exposure to pesticide residues. For

further discussion of the regulatory

requirements of section 408 and a

complete description of the risk

assessment process, see the final rule on

Bifenthrin Pesticide Tolerances (62 FR

62961, November 26, 1997) (FRL–5754–

7).

Consistent with 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 bifenazate and to make a

determination on aggregate exposure,

consistent with section 408(b)(2), for a

time-limited tolerance for combined

residues of bifenazate in or on tomato at

0.70 ppm. EPA’s assessment of the

dietary exposures and risks associated

with establishing the tolerance follows.

A. Toxicological Endpoints

The dose at which no adverse effects

are observed (the NOAEL) from the

toxicology study identified as

appropriate for use in risk assessment is

used to estimate the toxicological

endpoint. However, the lowest dose at

which adverse effects of concern are

identified (the LOAEL) is sometimes

used for risk assessment if no NOAEL

was achieved in the toxicology study

selected. An uncertainty factor (UF) is

applied to reflect uncertainties inherent

in the extrapolation from laboratory

animal data to humans and in the

variations in sensitivity among members

of the human population as well as

other unknowns. An UF of 100 is

routinely used, 10X to account for

interspecies differences and 10X for

intra species differences. Discuss any

additional uncertainty factors (other

than the FQPA SF) used in the

assessment.

For dietary risk assessment (other

than cancer) the Agency uses the UF to

calculate an acute or chronic reference

dose (acute RfD or chronic RfD) where

the RfD is equal to the NOAEL divided

by the appropriate UF (RfD = NOAEL/

UF). Where an additional safety factor is

retained due to concerns unique to the

FQPA, this additional factor is applied

to the RfD by dividing the RfD by such

additional factor. The acute or chronic

Population Adjusted Dose (aPAD or

cPAD) is a modification of the RfD to

accommodate this type of FQPA Safety

Factor.

For non-dietary risk assessments

(other than cancer) the UF is used to

determine the level of concern (LOC).

For example, when 100 is the

appropriate UF (10X to account for

interspecies differences and 10X for

intraspecies differences) the LOC is 100.

To estimate risk, a ratio of the NOAEL

to exposures (margin of exposure (MOE)

= NOAEL/exposure) is calculated and

compared to the LOC.

The linear default risk methodology

(Q*) is the primary method currently

used by the Agency to quantify

carcinogenic risk. The Q* approach

assumes that any amount of exposure

will lead to some degree of cancer risk.

A Q* is calculated and used to estimate

risk which represents a probability of

occurrence of additional cancer cases

(e.g., risk is expressed as 1 x 10-6 or one

in a million). Under certain specific

circumstances, MOE calculations will

be used for the carcinogenic risk

assessment. In this non-linear approach,

a ‘‘point of departure’’ is identified

below which carcinogenic effects are

not expected. The point of departure is

typically a NOAEL based on an

endpoint related to cancer effects

though it may be a different value

derived from the dose response curve.

To estimate risk, a ratio of the point of

departure to exposure (MOE cancer =

point of departure/exposures) is

calculated. A summary of the

toxicological endpoints for bifenazate

used for human risk assessment is

shown in the following Table 1.

34564 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations

TABLE 1.—SUMMARY OF TOXICOLOGICAL DOSE AND ENDPOINTS FOR BIFENAZATE FOR USE IN HUMAN RISK ASSESSMENT

Exposure Scenario Dose Used in Risk Assessment, UF

FQPA SF* and Level of

Concern for Risk AssessmentStudy and Toxicological Effects

Acute dietary females 13-50

years of age and general population including infants and

children

None None None

Chronic dietary all populations NOAEL= 1.01 mg/kg/day

UF = 100

Chronic RfD = 0.01 mg/kg/

day

FQPA SF = 10

cPAD =

chronic RfD

FQPA SF = 0.001 mg/kg/

day

One-year oral toxicity study in dogs

LOAEL = 8.95 mg/kg/day based on changes in

hematological and clinical chemistry parameters, and histopathology in the bone marrow, liver, and kidneys of both sexes.

Short-term incidental oral exposure

(Residential)

NOAEL= 10 mg/kg/day LOC for MOE = 1,000

(Residential)

Developmental toxicity study in rats

LOAEL= 100 mg/kg/day based on clinical signs

and decreased body weight gain and food

consumption.

Short-term dermal (1 to 7 days)

and

Intermediate-term dermal (1

week to several months)

(Residential)

Dermal study NOAEL= 80

mg/kg/day

LOC for MOE = 1,000

(Residential)

21-Day dermal toxicity study in rats

LOAEL = 400 mg/kg/day based on decreased

body weight and food consumption in females and an increased incidence of

extramedullary hematopoiesis in the spleen

in both sexes.

Long-term dermal (several

months to lifetime)

(Residential)

None None None

Short-term inhalation (1 to 7

days)

(Residential)

Inhalation (or oral) study

NOAEL = 10 mg/kg/day

(inhalation absorption

rate = 100%)

LOC for MOE = 1,000

(Residential)

Developmental toxicity study in rats

LOAEL = 100 mg/kg/day based on decreased

body weight and food consumption.

Intermediate-term inhalation (1

week to several months)

(Residential)

Inhalation (or oral) study

NOAEL= 1.0 mg/kg/day

(inhalation absorption

rate = 100%)

LOC for MOE = 1,000

(Residential)

90-day feeding study in dogs

LOAEL = 10.4 mg/kg/day based on changes in

hematological parameters and

histopathological effects in the liver.

Long-term inhalation (several

months to lifetime)

(Residential)

None None None

Cancer (oral, dermal, inhalation) Bifenazate has been classified as ‘‘not likely’’ to be

a human carcinogen.

Carcinogenicity studies in mice and rats in

which there were an absence of treatmentrelated tumors.

*The reference to the FQPA Safety Factor refers to any additional safety factor retained due to concerns unique to the FQPA.

B. Exposure Assessment

1. Dietary exposure from food and

feed uses. Bifenazate is currently only

registered for use on ornamental plants

and trees. Therefore, there are no

tolerances established for the combined

residues of bifenazate, in or on any raw

agricultural commodities. This is the

first food use for bifenazate. Risk

assessments were conducted by EPA to

assess dietary exposures from bifenazate

in food as follows:

i. Acute exposure. Acute dietary risk

assessments are performed for a fooduse 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. An acute dietary

endpoint for females 13-50 years old or

the general U.S. population was not

selected due to the absence of an effect

of concern occurring as a result of a one

day or single exposure.

ii. Chronic exposure. In conducting

this chronic dietary risk assessment the

Dietary Exposure Evaluation Model

(DEEM) analysis evaluated the

individual food consumption as

reported by respondents in the USDA

1989–1992 nationwide Continuing

Surveys of Food Intake by Individuals

(CSFII) and accumulated exposure to

the chemical for each commodity. The

following assumptions were made for

the chronic exposure assessments:

Tolerance level residues, 100% crop

treated, and DEEM default processing

factors for all proposed commodities.

iii. Cancer. Bifenazate has been

classified as ‘‘not likely’’ to be a human

carcinogen based on carcinogenicity

studies in mice and rats in which there

was an absence of treatment-related

tumors.

2. Dietary exposure from drinking

water. The emergency exemption

request is for the use of bifenazate on

tomatoes grown in greenhouses and

therefore, is not expected to have an

impact on drinking water. However, the

current registration for application of

bifenazate to public, commercial,

industrial, and institutional areas may

impact drinking water resources.

The Agency lacks sufficient

monitoring exposure data to complete a

comprehensive dietary exposure

analysis and risk assessment for

bifenazate in drinking water. Because

the Agency does not have

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations 34565

comprehensive monitoring data,

drinking water concentration estimates

are made by reliance on simulation or

modeling taking into account data on

the physical characteristics of

bifenazate.

The Agency uses the Generic

Estimated Environmental Concentration

(GENEEC) or the Pesticide Root Zone/

Exposure Analysis Modeling System

(PRZM/EXAMS) to estimate pesticide

concentrations in surface water and

Screening Concentrations in Ground

Water (SCI-GROW), which predicts

pesticide concentrations in ground

water. In general, EPA will use GENEEC

(a tier 1 model) before using PRZM/

EXAMS (a tier 2 model) for a screeninglevel assessment for surface water. The

GENEEC model is a subset of the PRZM/

EXAMS model that uses a specific highend runoff scenario for pesticides.

GENEEC incorporates a farm pond

scenario, while PRZM/EXAMS

incorporate an index reservoir

environment in place of the previous

pond scenario. The PRZM/EXAMS

model includes a percent crop area

factor as an adjustment to account for

the maximum percent crop coverage

within a watershed or drainage basin.

None of these models include

consideration of the impact processing

(mixing, dilution, or treatment) of raw

water for distribution as drinking water

would likely have on the removal of

pesticides from the source water. The

primary use of these models by the

Agency at this stage is to provide a

coarse screen for sorting out pesticides

for which it is highly unlikely that

drinking water concentrations would

ever exceed human health levels of

concern.

Since the models used are considered

to be screening tools in the risk

assessment process, the Agency does

not use estimated environmental

concentrations (EECs) from these

models to quantify drinking water

exposure and risk as a %RfD or %PAD.

Instead, drinking water levels of

comparison (DWLOCs) are calculated

and used as a point of comparison

against the model estimates of a

pesticide’s concentration in water.

DWLOCs are theoretical upper limits on

a pesticide’s concentration in drinking

water in light of total aggregate exposure

to a pesticide in food, and from

residential uses. Since DWLOCs address

total aggregate exposure to bifenazate

they are further discussed in the

aggregate risk sections below.

Based on the GENEEC and SCI-GROW

models the estimated environmental

concentrations (EECs) of bifenazate for

chronic exposures are estimated to be

0.02 parts per billion (ppb) for surface

water and 0.02 ppb for ground water.

3. From non-dietary exposure. The

term ‘‘residential exposure’’ is used in

this document to refer to nonoccupational, non-dietary exposure

(e.g., for lawn and garden pest control,

indoor pest control, termiticides, and

flea and tick control on pets).

Bifenazate is currently registered for

use on the following residential nondietary sites: Ornamental plants and

trees. The risk assessment was

conducted using the following exposure

assumptions: there is a potential for

residential exposures, including

homeowner applicator exposure and

postapplication exposures, for the

currently registered uses of bifenazate.

However, since broad spectrum

insecticides are generally used in the

residential setting, application of

bifenazate (a selective insecticide) by a

homeowner is expected to be limited.

Nevertheless, a homeowner applicator is

anticipated to have short-term dermal

and inhalation exposures. Exposure

estimates were based on the applicator

wearing short pants and short sleeves.

The registered use of bifenazate on

ornamentals is also expected to result in

residential post-application exposure.

The exposure estimate for homeowners

and children was based on the default

assumptions for treatment to garden

plants from the Agency’s Standard

Operating Procedures (SOPs) for

Residential Exposure Assessment

(December 18, 1997). Only short-term

dermal exposures are anticipated.

4. Cumulative exposure to substances

with a common mechanism of toxicity.

Section 408(b)(2)(D)(v) 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.’’

EPA does not have, at this time,

available data to determine whether

bifenazate has a common mechanism of

toxicity with other substances or how to

include this pesticide in a cumulative

risk assessment. Unlike other pesticides

for which EPA has followed a

cumulative risk approach based on a

common mechanism of toxicity,

bifenazate 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 bifenazate has a common

mechanism of toxicity with other

substances. For information regarding

EPA’s efforts to determine which

chemicals have a common mechanism

of toxicity and to evaluate the

cumulative effects of such chemicals,

see the final rule for Bifenthrin Pesticide

Tolerances (62 FR 62961, November 26,

1997).

C. Safety Factor for Infants and Children

1. Safety factor for infants and

children— i. In general. FFDCA section

408 provides that EPA shall apply an

additional tenfold margin of safety for

infants and children in the case of

threshold effects to account for prenatal

and postnatal toxicity and the

completeness of the data base on

toxicity and exposure unless EPA

determines that a different margin of

safety will be safe for infants and

children. Margins of safety are

incorporated into EPA risk assessments

either directly through use of a margin

of exposure (MOE) analysis or through

using uncertainty (safety) factors in

calculating a dose level that poses no

appreciable risk to humans.

ii. Developmental toxicity studies. In

a developmental toxicity study in rats

the maternal toxicity NOAEL was 10

mg/kg/day based on clinical signs and

decreased body weight gains and food

consumption at the LOAEL of 100 mg/

kg/day. The developmental NOAEL was

greater than 500 mg/kg/day (HDT) and

the developmental LOAEL was not

established. Therefore, there were no

developmental effects observed in the

presence of maternal toxicity in this

study.

In a developmental toxicity study in

rabbits there were no toxic effects up to

the highest dose tested of 200 mg/kg/

day in either the maternal animals or

the fetuses. Although no toxicity was

observed in this study, sufficient

evidence of adequate dose selection was

based on a range-finding study which

was performed at doses of 0, 125, 250,

500, 750, or 1,000 mg/kg/day. Abortions

were seen at 250 mg/kg/day and above

and deaths and decreased body weight

were seen at 750 mg/kg/day and 1,000

mg/kg/day. Based on these results,

doses of 10, 50, and 200 mg/kg/day were

selected for the main study.

iii. Reproductive toxicity study. In a 2-

generation reproductive toxicity study

in rats, the parental toxicity NOAEL was

20 ppm (equivalent to 1.6/1.8 mg/kg/

day M/F) based on decreased body

weight and cumulative weight gain in

males and females at the LOAEL of 80

ppm (equivalent to 6.5/7.4 mg/kg/day

M/F). The NOAEL for offspring toxicity

and reproductive toxicity was 200 ppm

(equivalent to 16.4/18.3 mg/kg/day M/F)

which was the highest dose tested. A

LOAEL for offspring toxicity and

reproductive toxicity was not

established.

34566 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations

iv. Prenatal and postnatal sensitivity.

Based on the results of the

developmental and reproduction

studies, there is no indication of

increased sensitivity in rats or rabbits to

in utero and/or postnatal exposure to

bifenazate.

v. Conclusion. There were no

developmental or reproductive effects

observed in the presence of maternal

toxicity. However, bifenazate has not

been evaluated by the Agency’s FQPA

Safety Factor Committee. Therefore, for

the purposes of this emergency

exemption, the FQPA safety factor of

10X, to protect infants and children has

been retained for all dietary and

residential risk assessments.

D. Aggregate Risks and Determination of

Safety

To estimate total aggregate exposure

to a pesticide from food, drinking water,

and residential uses, the Agency

calculates DWLOCs which are used as a

point of comparison against the model

estimates of a pesticide’s concentration

in water (EECs). DWLOC values are not

regulatory standards for drinking water.

DWLOCs are theoretical upper limits on

a pesticide’s concentration in drinking

water in light of total aggregate exposure

to a pesticide in food and residential

uses. In calculating a DWLOC, the

Agency determines how much of the

acceptable exposure (i.e., the PAD) is

available for exposure through drinking

water e.g., allowable chronic water

exposure (mg/kg/day) = cPAD - (average

food + chronic non-dietary, nonoccupational exposure). This allowable

exposure through drinking water is used

to calculate a DWLOC.

A DWLOC will vary depending on the

toxic endpoint, drinking water

consumption, and body weights. Default

body weights and consumption values

as used by the USEPA Office of Water

are used to calculate DWLOCs: 2L/70 kg

(adult male), 2L/60 kg (adult female),

and 1L/10 kg (child). Default body

weights and drinking water

consumption values vary on an

individual basis. This variation will be

taken into account in more refined

screening-level and quantitative

drinking water exposure assessments.

Different populations will have different

DWLOCs. Generally, a DWLOC is

calculated for each type of risk

assessment used: Acute, short-term,

intermediate-term, chronic, and cancer.

When EECs for surface water and

ground water are less than the

calculated DWLOCs, the Office of

Pesticide Programs (OPP) concludes

with reasonable certainty that exposures

to bifenazate in drinking water (when

considered along with other sources of

exposure for which OPP has reliable

data) would not result in unacceptable

levels of aggregate human health risk at

this time. Because OPP considers the

aggregate risk resulting from multiple

exposure pathways associated with a

pesticide’s uses, levels of comparison in

drinking water may vary as those uses

change. If new uses are added in the

future, OPP will reassess the potential

impacts of bifenazate on drinking water

as a part of the aggregate risk assessment

process.

1. Acute risk. An acute dietary

endpoint for females 13-50 years old or

the general U.S. population was not

selected due to the absence of an effect

of concern in studies conducted for

bifenazate occurring as a result of a one

day or single exposure. Therefore, no

acute dietary risk assessments were

conducted for bifenazate.

2. Chronic risk. Using the exposure

assumptions described in this unit for

chronic exposure, EPA has concluded

that exposure to bifenazate from food

will utilize 29% of the cPAD for the

U.S. population, 6% of the cPAD for

infants and 43% of the cPAD for

children (7-12 years old), the most

highly exposed subgroup. Based the use

pattern, chronic residential exposure to

residues of bifenazate is not expected. In

addition, despite the potential for

chronic dietary exposure to bifenazate

in drinking water, after calculating

DWLOCs and comparing them to

conservative model estimated

environmental concentrations of

bifenazate in surface and ground water,

EPA does not expect the aggregate

exposure to exceed 100% of the cPAD,

as shown in the following Table 2.

TABLE 2.—AGGREGATE RISK ASSESSMENT FOR CHRONIC (NON-CANCER) EXPOSURE TO BIFENAZATE

Population Subgroup cPAD mg/

kg/day

% cPAD

(Food)

Surface

Water EEC

(ppb)

Ground

Water EEC

(ppb)

Chronic

DWLOC

(ppb)

U.S. Population 0.001 29 0.02 0.02 25

All Infants (<1 year) 0.001 6 0.02 0.02 9

Children (7-12 years) 0.001 43 0.02 0.02 6

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).

Bifenazate is currently registered for

use(s) that could result in short-term

residential exposure and the Agency has

determined that it is appropriate to

aggregate chronic food and water and

short-term exposures for bifenazate.

Using the exposure assumptions

described in this unit for short-term

exposures, EPA has concluded that food

and residential exposures aggregated

result in aggregate MOEs of 1,300 to

1,500 for short-term dermal, inhalation

and incidental oral exposures. These

aggregate MOEs do not exceed the

Agency’s level of concern for aggregate

exposure to food and residential uses. In

addition, short-term DWLOCs were

calculated and compared to the EECs for

chronic exposure of bifenazate in

ground water and surface water. After

calculating DWLOCs and comparing

them to the EECs for surface and ground

water, EPA does not expect short-term

aggregate exposure to exceed the

Agency’s level of concern, as shown in

the following Table 3.

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations 34567

TABLE 3.— AGGREGATE RISK ASSESSMENT FOR SHORT-TERM EXPOSURE TO BIFENAZATE

Population Subgroup

Aggregate

MOE (Food

+Residential)

Aggregate

Level of

Concern

(LOC)

Surface

Water EEC

(ppb)

Ground

Water EEC

(ppb)

Short-Term

DWLOC

(ppb)

U.S. Population 1,300 1,000 0.02 0.02 80

All Infants (<1 year 1,500 1,000 0.02 0.02 100

Children (7-12 years) 1,400 1,000 0.02 0.02 100

4. Intermediate-term risk.

Intermediate-term aggregate exposure

takes into account non-dietary, nonoccupational exposure plus chronic

exposure to food and water (considered

to be a background exposure level).

Though residential exposure could

occur with the use of bifenazate,

currently, only short-term dermal and

short-term inhalation residential

exposures are expected. Therefore, an

aggregate risk assessment for

intermediate-term exposures was not

conducted.

5. Aggregate cancer risk for U.S.

population. Bifenazate has been

classified as ‘‘not likely’’ to be a human

carcinogen based on carcinogenicity

studies in mice and rats in which there

was an absence of treatment-related

tumors. Therefore, an aggregate risk

assessment to estimate cancer risk 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, and to infants and children

from aggregate exposure to bifenazate

residues.

V. Other Considerations

A. Analytical Enforcement Methodology

Adequate enforcement methodology

(multiresidue method) is available to

enforce the tolerance expression. The

method may be requested from: Calvin

Furlow, PIRIB, IRSD (7502C), Office of

Pesticide Programs, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW., Washington, DC 20460;

telephone number: (703) 305–5229; email address: furlow.calvin@epa.gov.

B. International Residue Limits

There is neither a Codex proposal, nor

Canadian or Mexican limits, for residues

of bifenazate and its metabolite in or on

tomato. Therefore, harmonization is not

an issue for this use.

C. Conditions

The request is for application to

greenhouse grown tomatoes. Therefore,

rotational crop restrictions are not

relevant for the greenhouse. A

maximum of two applications per crop

are permitted and the seasonal rate is

not to exceed 0.50 lbs active ingredient

per acre. The product is not to be

applied within 3 days of harvest.

VI. Conclusion

Therefore, the tolerance is established

for combined residues of bifenazate,

(hydrazine carboxylic acid, 2-(4-

methoxy-[1,1’-biphenyl]-3-yl-, 1-

methylethyl ester) and

diazenecarboxylic acid, 2-(4-methoxy-

[1,1’-biphenyl]-3-yl-, 1-methylethyl

ester, in or on tomato at 0.70 ppm.

VII. Objections and Hearing Requests

Under section 408(g) of the FFDCA, as

amended by the FQPA, any person may

file an objection to any aspect of this

regulation and may also request a

hearing on those objections. The EPA

procedural regulations which govern the

submission of objections and requests

for hearings appear in 40 CFR part 178.

Although the procedures in those

regulations require some modification to

reflect the amendments made to the

FFDCA by the FQPA of 1996, EPA will

continue to use those procedures, with

appropriate adjustments, until the

necessary modifications can be made.

The new section 408(g) provides

essentially the same process for persons

to ‘‘object’’ to a regulation for an

exemption from the requirement of a

tolerance issued by EPA under new

section 408(d), as was provided in the

old FFDCA sections 408 and 409.

However, the period for filing objections

is now 60 days, rather than 30 days.

A. What Do I Need to Do to File an

Objection or Request a Hearing?

You must file your objection or

request a hearing on this regulation in

accordance with the instructions

provided in this unit and in 40 CFR part

178. To ensure proper receipt by EPA,

you must identify docket control

number OPP–301143 in the subject line

on the first page of your submission. All

requests must be in writing, and must be

mailed or delivered to the Hearing Clerk

on or before August 28, 2001.

1. Filing the request. Your objection

must specify the specific provisions in

the regulation that you object to, and the

grounds for the objections (40 CFR

178.25). If a hearing is requested, the

objections must include a statement of

the factual issues(s) on which a hearing

is requested, the requestor’s contentions

on such issues, and a summary of any

evidence relied upon by the objector (40

CFR 178.27). Information submitted in

connection with an objection or hearing

request may be claimed confidential by

marking any part or all of that

information as CBI. Information so

marked will not be disclosed except in

accordance with procedures set forth in

40 CFR part 2. A copy of the

information that does not contain CBI

must be submitted for inclusion in the

public record. Information not marked

confidential may be disclosed publicly

by EPA without prior notice.

Mail your written request to: Office of

the Hearing Clerk (1900), Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW., Washington, DC 20460. You

may also deliver your request to the

Office of the Hearing Clerk in Rm. C400,

Waterside Mall, 401 M St., SW.,

Washington, DC 20460. The Office of

the Hearing Clerk is open from 8 a.m.

to 4 p.m., Monday through Friday,

excluding legal holidays. The telephone

number for the Office of the Hearing

Clerk is (202) 260–4865.

2. Tolerance fee payment. If you file

an objection or request a hearing, you

must also pay the fee prescribed by 40

CFR 180.33(i) or request a waiver of that

fee pursuant to 40 CFR 180.33(m). You

must mail the fee to: EPA Headquarters

Accounting Operations Branch, Office

of Pesticide Programs, P.O. Box

360277M, Pittsburgh, PA 15251. Please

identify the fee submission by labeling

it ‘‘Tolerance Petition Fees.’’

EPA is authorized to waive any fee

requirement ‘‘when in the judgement of

the Administrator such a waiver or

refund is equitable and not contrary to

the purpose of this subsection.’’ For

additional information regarding the

waiver of these fees, you may contact

James Tompkins by phone at (703) 305–

5697, by e-mail at

34568 Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations

tompkins.jim@epa.gov, or by mailing a

request for information to Mr. Tompkins

at Registration Division (7505C), Office

of Pesticide Programs, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW., Washington, DC 20460.

If you would like to request a waiver

of the tolerance objection fees, you must

mail your request for such a waiver to:

James Hollins, Information Resources

and Services Division (7502C), Office of

Pesticide Programs, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW., Washington, DC 20460.

3.Copies for the Docket. In addition to

filing an objection or hearing request

with the Hearing Clerk as described in

Unit VII.A., you should also send a copy

of your request to the PIRIB for its

inclusion in the official record that is

described in Unit I.B.2. Mail your

copies, identified by the docket control

number OPP–301143, to: Public

Information and Records Integrity

Branch, Information Resources and

Services Division (7502C), Office of

Pesticide Programs, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW., Washington, DC 20460. In

person or by courier, bring a copy to the

location of the PIRIB described in Unit

I.B.2. You may also send an electronic

copy of your request via e-mail to: oppdocket@epa.gov. Please use an ASCII

file format and avoid the use of special

characters and any form of encryption.

Copies of electronic objections and

hearing requests will also be accepted

on disks in WordPerfect 6.1/8.0 or

ASCII file format. Do not include any

CBI in your electronic copy. You may

also submit an electronic copy of your

request at many Federal Depository

Libraries.

B. When Will the Agency Grant a

Request for a Hearing?

A request for a hearing will be granted

if the Administrator determines that the

material submitted shows the following:

There is a genuine and substantial issue

of fact; there is a reasonable possibility

that available evidence identified by the

requestor would, if established resolve

one or more of such issues in favor of

the requestor, taking into account

uncontested claims or facts to the

contrary; and resolution of the factual

issues(s) in the manner sought by the

requestor would be adequate to justify

the action requested (40 CFR 178.32).

VIII. Regulatory Assessment

Requirements

This final rule establishes a time

limited tolerance under FFDCA section

408. 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). This final rule does

not contain any information collections

subject to OMB approval under the

Paperwork Reduction Act (PRA), 44

U.S.C. 3501 et seq., or impose any

enforceable duty or contain any

unfunded mandate as described under

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA) (Public

Law 104–4). Nor does it require any

special considerations under Executive

Order 12898, entitled Federal Actions to

Address Environmental Justice in

Minority Populations and Low-Income

Populations (59 FR 7629, February 16,

1994); or OMB review or any 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). Since

tolerances and exemptions that are

established on the basis of a FIFRA

section 18 exemption under FFDCA

section 408, such as the tolerance in this

final rule, do not require the issuance of

a proposed rule, the requirements of the

Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.) do not apply. In

addition, the Agency has determined

that this action will not have a

substantial direct effect on States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999). Executive Order 13132 requires

EPA to develop an accountable process

to ensure ‘‘meaningful and timely input

by State and local officials in the

development of regulatory policies that

have federalism implications.’’ ‘‘Policies

that have federalism implications’’ is

defined in the Executive Order to

include regulations that have

‘‘substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government.’’ This final rule

directly regulates growers, food

processors, food handlers and food

retailers, not States. This action does not

alter the relationships or distribution of

power and responsibilities established

by Congress in the preemption

provisions of FFDCA section 408(n)(4).

For these same reasons, the Agency has

determined that this rule does not have

any ‘‘tribal implications’’ as described

in Executive Order 13175, entitled

Consultation and Coordination with

Indian Tribal Governments (65 FR

67249, November 6, 2000). Executive

Order 13175, requires EPA to develop

an accountable process to ensure

‘‘meaningful and timely input by tribal

officials in the development of

regulatory policies that have tribal

implications.’’ ‘‘Policies that have tribal

implications’’ is defined in the

Executive Order to include regulations

that have ‘‘substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes.’’ This

rule will not have substantial direct

effects on tribal governments, on the

relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes, as

specified in Executive Order 13175.

Thus, Executive Order 13175 does not

apply to this rule.

IX. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of this final

rule in the Federal Register. This final

rule is not a ‘‘major rule’’ as defined by

5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests, Reporting and recordkeeping

requirements.

Dated: June 13, 2001.

Joseph Merenda,

Acting Director, Office of Pesticide Programs.

Therefore, 40 CFR chapter I is

amended as follows:

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / Rules and Regulations 34569

PART 180—[AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 321(q), 346(a) and

371.

2. Section 180.572 is added to read as

follows:

§ 180.572 Bifenazate; tolerance for

residues.

(a) General. [Reserved]

(b) Section 18 emergency exemptions.

Time limited tolerances are established

for combined residues of bifenazate,

(hydrazine carboxylic acid, 2-(4-

methoxy-[1,1’-biphenyl]-3-yl-, 1-

methylethyl ester) and

diazenecarboxylic acid, 2-(4-methoxy-

[1,1’-biphenyl]-3-yl-, 1-methylethyl ester

in connection with use of the pesticide

under section 18 emergency exemptions

granted by the EPA. The tolerances will

expire and are revoked on the dates

specified in the following table.

Commodity Parts per million Expiration/Revocation Date

Tomato ......................................................................................................................................................... 0.70 6/30/03

(c) Tolerances with regional

registrations. [Reserved]

(d) Indirect or inadvertent residues.

[Reserved]

[FR Doc. 01–16441 Filed 6–28–01; 8:45 am]

BILLING CODE 6560–50–S

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[CS Docket Nos. 97–98 and 97–151; FCC

01–170]

Rules and Policies Governing Pole

Attachments; Implementation of

Section 703(e) of the

Telecommunications Act of 1996

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petitions for

reconsideration.

SUMMARY: This document responds to

petitions for reconsideration of the

Report and Order in CS Docket No. 97–

151, and the Report and Order in CS

Docket No. 97–98. This document

consolidates two reconsideration

proceedings raising similar and

interrelated issues concerning the rates,

terms and conditions of access for

attachments by cable operators and

telecommunications carriers to utility

poles, ducts, conduits and rights-of-way

pursuant to section 224 of the

Communications Act of 1934, as

amended. This document reconsiders

affirms and clarifies the pole attachment

rate formula for cable attachers as well

as the formula for telecommunications

attachers.

DATES: Effective July 30, 2001.

FOR FURTHER INFORMATION CONTACT:

Kathleen Costello at (202) 418–7200 or

via the Internet at kcostell@fcc.gov, or

Cheryl King at (202) 418–2284 or via the

Internet at cking@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Order on

Reconsideration, CS Dkt. Nos. 97–98

and 97–151, FCC 01–170, adopted May

22, 2001; release May 25, 2001. The full

text of the Commission’s Order on

Reconsideration is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room CY–A257) at its

headquarters, 445 12th Street, SW.,

Washington, DC 20554, or may be

purchased from the Commission’s copy

contractor, International Transcription

Service, Inc., (202) 857–3800, 1231 20th

Street, NW., Washington, DC 20036, or

may be reviewed via Internet at http://

www.fcc.gov/csb/.

Paperwork Reduction Act

The requirements adopted in the

Order on Reconsideration have been

analyzed with respect to the Paperwork

Reduction Act of 1995 (‘‘1995 Act’’) and

found to impose no new or modified

information collection requirements on

the public.

Synopsis of the Order on

Reconsideration

I. Introduction

1. This Order on Reconsideration

grants in part and denies in part

petitions for reconsideration and/or

clarification of Report and Order,

Implementation of Section 703(e) of the

Telecommunications Act of 1996,

Amendment to the Commission’s Rules

and Policies Governing Pole

Attachments, CS Docket No. 97–151,

FCC 98–20, 63 FR 12013, published

March 12, 1998, 13 FCC Rcd 6777

(1998) (‘‘Telecom Order’’) and Report

and Order, Amendment of Rules and

Policies Governing Pole Attachments,

CS Docket No. 97–98, FCC 00–116, 65

FR 31270, published May 17, 2000,

corrected 65 FR 34820, May 31, 2000, 15

FCC Rcd 6453 (2000) (‘‘Fee Order’’),

concerning the rates, terms and

conditions of access for attachments by

cable operators and telecommunications

carriers to utility poles, ducts, conduits

and rights-of-way pursuant to Section

224 of the Communications Act of 1934,

as amended (‘‘Pole Attachment Act’’),

47 U.S.C. 224 and Subpart J of the

Commission’s Rules, 47 CFR 1.1401–

1.1418.

2. This Order on Reconsideration

affirms our decision not to impose

additional regulation on the negotiation

process or on the rules for resolution of

pole attachment complaints; affirms the

continued use, in the pole attachment

rate calculation formulas, of specific

regulatory accounts maintained by

utilities and identify the actual costs

incurred by the utilities for the poles,

ducts, conduits and rights-of-way that

are the subject of the attachment;

reconsiders and clarifies the way in

which entities are counted for the

purpose of allocating and apportioning

costs of unusable space for

telecommunications attachers after

February 8, 2001; reconsiders and

clarifies the geographic areas used to

determined average numbers of

attaching entities for use in calculations

of the formulas of telecommunications

pole attachment rates, and establish two

presumptive averages that may be used

in our formulas after February 8, 2001;

affirms and clarifies decisions regarding

third party overlashing; affirms the

presumption that a pole attachment

occupies one foot of usable space and

that this presumption is rebuttable by

either party; affirms that the formula

adopted in the Fee Order, for calculating

the rate for use of capacity in a conduit,

is applicable to telecommunications

systems; affirms the use in the formula

of the actual percentage of the conduit

capacity occupied, with a rebuttable

presumption that an attacher occupies

one-half duct; affirms that there is no

unusable capacity in a conduit; affirms

our decision that a utility may not

exclude reserved capacity within a

conduit system when calculating total

capacity upon which the pole

attachment rate in a conduit is based;

affirms that complaints regarding

nondiscriminatory access, rates, terms

and conditions for non-traditional pole

attachments, such as attachments to