Under the regulations in “Subpart-Phytophthora Ramorum” (7 CFR 301.92 through 301.92-11, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) restricts the interstate movement of certain regulated and restricted articles from quarantined areas in California and Oregon to prevent the artificial spread of Phytophthora ramorum , the pathogen that causes the plant diseases commonly known as sudden oak death, ramorum leaf blight, and ramorum dieback.

The regulations, which were established in February 2002, quarantined 10 counties in California and part of 1 county in Oregon, and restrict the interstate movement of regulated and restricted articles from those areas. Regulated articles, which may be moved interstate from quarantined areas contingent upon the application of certain phytosanitary measures, include soil and nursery stock (except acorns and seeds), unprocessed wood and wood products (including firewood, logs, and lumber), and plant products (including wreaths, garlands, and greenery) of 14 species and 1 genus of plants. Restricted articles from quarantined areas, which are prohibited from moving interstate except under departmental permit, include bark chips, forest stock, and mulch of the same 14 species and 1 genus of plants. The regulations also include provisions for the issuance of certificates and compliance agreements, as well as provisions regarding treatments for regulated articles and inspection and sampling protocols for nurseries shipping host plants interstate.

The regulatory changes codified by this rule are consistent with an order issued by APHIS on December 21, 2004, that restricted the interstate movement of nursery stock from California, Oregon, and Washington nurseries. 1 The requirements established by this rule supercede the requirements of the order.

In this interim rule, we are amending the regulations to establish restrictions on the interstate movement of nursery stock from nurseries in nonquarantined counties in California, Oregon, and Washington. We are also amending the regulations to update conditions for the movement of regulated articles of nursery stock from quarantined areas, to add restrictions on the movement of decorative trees without roots from quarantined areas, as well as to restrict the interstate movement of all other nursery stock from nurseries in quarantined areas. We are also updating the list of plants regulated because of P. ramorum and the list of areas that are quarantined for P. ramorum , and making other miscellaneous amendments to the regulations. These actions are necessary to prevent the spread of P. ramorum to noninfested areas of the United States.

Since 2002, P. ramorum has been confirmed to be established in natural areas in four additional counties in California and a small additional area in Curry County, OR, and many additional plants have been confirmed as hosts of the pathogen. In this document, we are updating the regulations to reflect these developments.

Specifically, we are adding Contra Costa, Humboldt, Lake, and San Francisco Counties in California to the list of quarantined areas and revising the description of the portion of Curry County, OR, that is a quarantined area to reflect the fact that the previously quarantined area has been expanded, and that the area remains under an eradication program. The updated list of quarantined areas appears in § 301.92-3(a)(3) in this rule.

We are also amending the regulations in § 301.92-2 that designate regulated and restricted articles to include additional taxa of P. ramorum hosts. The complete list of proven host taxa can be found in § 301.92-2(d) in the rule portion of this document. The proven genera, species, or hybrids added by this rule are:

The plant taxa listed above are proven hosts of P. ramorum based upon completion, documentation, review, and acceptance of traditional Koch's postulates. Note that several updates have been made to previously listed taxa:

• Black oak is now listed as California black oak;

• The scientific name for California coffeeberry has been corrected;

• Huckleberry is now listed as evergreen huckleberry;

• Arrowwood is now listed as Bodnant viburnum;

• All nursery-grown Quercus parvula are now regulated;

• All species, hybrids, and cultivars of Pieris spp. are now regulated;

• All species, hybrids, and cultivars of Kalmia spp. are now regulated;

• All species, hybrids, and cultivars of Rhododendron spp. are now regulated; and

• The listing for Umbellularia californica is clarified to include other recognized common names—pepperwood and Oregon myrtle.

We are also clarifying that firewood, logs, and lumber of specific proven host plant taxa are not regulated because available research shows that P. ramorum infections are limited to other parts ( i.e. , twigs, leaves, and sprouts) of those hosts. These hosts are indicated with an asterisk in revised § 301.92-2(d).

In addition to amending the lists of regulated and restricted articles, we are adding a new category of article to the regulations: Associated articles. Several plant species have been associated with P. ramorum after symptoms were observed on the plants and culture or polymerase chain reaction (PCR) tests of the plants returned positive results for P. ramorum . Traditional Koch's postulates, which will confirm or exclude them as hosts, have not yet been completed for any of these plant species, but the positive results of culture or PCR tests indicate that they present a risk of transmitting P. ramorum . We are, therefore, imposing restrictions on their interstate movement (discussed in detail later in this document) until the results of the application of Koch's postulates are known. At that time, we will list proven hosts as regulated and restricted articles and remove from the list of associated articles those plant species that are not proven hosts of P. ramorum via application of Koch's postulates.

Associated plant taxa are listed in § 301.92-2(e); only nursery stock of these plant taxa are regulated under this rule ( i.e. , interstate movement of unprocessed wood and wood products, and plant products, including bark chips, mulch, firewood, logs, lumber, wreaths, garlands, and greenery of associated plant taxa are not regulated).

A primary purpose of this rule is to address the discovery of P. ramorum in nurseries in California, Oregon, and Washington that are outside quarantined areas. Nurseries outside the quarantined area were not previously covered by the regulations. While P. ramorum is present and in some cases widespread in the natural environment in the quarantined areas of California and Oregon, the detections of P. ramorum in the nonquarantined areas of California and Oregon and in the State of Washington have been limited to commercially produced nursery plants. These nurseries are a proven source of P. ramorum moved in the interstate trade of nursery stock, therefore, we are regulating the interstate movement of nursery stock from nurseries in nonquarantined areas in California, Oregon, and Washington (referred to elsewhere in this document and in the amended regulations as regulated areas  2 ) in order to prevent the spread of P. ramorum to noninfested areas of the United States. As stated in the previous section, we are not regulating the interstate movement of any other restricted or regulated articles from regulated areas because positive finds in regulated areas have been limited to nursery stock.

Specifically, any nursery located in a regulated area that contains regulated articles of nursery stock or associated articles is prohibited from moving nursery stock interstate until certain conditions are met. In some cases, nurseries may also be prohibited from shipping non-host nursery stock  3 until the same or similar conditions are met. These conditions, which are contained in § 301.92-11 of the regulations, are described below.

Paragraph (c) of § 301.92-11 pertains to nurseries located in regulated areas that ship regulated articles of nursery stock or associated articles interstate. Under paragraph (c), such nurseries must be inspected for symptoms of P. ramorum by an APHIS, State, or county inspector. 4 Inspection will focus on, but not be limited to, regulated articles of nursery stock and associated articles.

Samples must be taken from all symptomatic plants. If fewer than 40 symptomatic plants are present, each symptomatic plant must be sampled and additional samples must be taken from asymptomatic plants so that the minimum number of plants sampled totals 40. If no symptomatic plants are present, 40 asymptomatic plants must be sampled. Each sample may contain more than one leaf, and may come from more than one plant, but all plants in the sample must be from the same lot. 5 If the samples are collected from asymptomatic plants, the samples must be taken from regulated and associated articles and nearby plants. Inspectors must conduct inspections at times when the best expression of symptoms is anticipated (typically within 30-90 days of bud break) and must take nursery fungicide programs into consideration to maximize the opportunity to observe symptoms. We recommend that inspections be performed 2 to 9 weeks after any application of fungicides that are efficacious for Phytophthora spp. or oomycetes, (depending on the type of fungicide used and the plant treated), and prior to any subsequent applications of such fungicides. Nursery owners must also keep records of fungicide applications for 2 years and must make them available to inspectors upon request.

All plant samples must be tested in accordance with § 301.92-12. If samples return negative results for P. ramorum , an inspector may certify that the nursery is free of evidence of Phytophthora ramorum infestation at the time the plants were inspected. Nurseries in a regulated area must have current and valid certification to ship regulated articles of nursery stock and associated articles interstate. If annual certification expires prior to reinspection, all plants in the nursery are prohibited interstate movement until the nursery is inspected, tested, and re-certified in accordance with the regulations.

All nurseries that are operating under compliance agreements must maintain records of all incoming shipments of plants for a minimum of 24 months and must make them available to inspectors upon request. In addition, all nurseries that are operating under compliance agreements, except retail dealers, must maintain records of outgoing shipments for a minimum of 24 months. This recordkeeping will help to facilitate tracebacks and traceforwards in the event that articles infected with P. ramorum are discovered upon inspection.

Paragraph (d) of § 301.92-11 pertains to nurseries in regulated areas that contain only non-host nursery stock. If a nursery located in a regulated area moves non-host nursery stock interstate but the nursery contains regulated articles of nursery stock or associated articles, the nursery must meet the requirements of § 301.92-11(c), which are described above, even if the nursery only ships non-host nursery stock interstate. Alternately, under paragraph (d), if there are no regulated or associated articles in the nursery, a nursery in a regulated area may ship non-host nursery stock interstate if the following conditions are met:

• The nursery must be visually inspected annually and found free of symptoms of P. ramorum at the time when the best expression of symptoms is anticipated (typically within 30-90 days of bud break).

• If symptomatic plants are found upon inspection, all such plants must be tested, and the following plants must be withheld from interstate shipment until testing is completed and the nursery is found free of evidence of P. ramorum by an inspector: All symptomatic plants, any plants located in the same lot as the symptomatic plant, and any plants located within 2 meters of the affected lot(s) of plants.

• If no symptomatic plants are found, an inspector may certify that the nursery is free of evidence of P. ramorum , and non-host nursery stock will be eligible for interstate movement. Note that no certificate is required for non-host plants moving interstate in accordance with § 301.92-11(d).

The States of California, Oregon, and Washington, and local governments cooperate with APHIS in enforcing the requirements of this rule. The States have agreed to maintain on the Internet a current list of nurseries that have been certified as free of evidence of P. ramorum infestation in accordance with this rule. Links to the States' lists can be found at http://www.aphis.usda.gov/ppq/ispm/pramorum/resources.html .

In the December 2004 Federal Order, the provisions described above pertaining to nurseries located in regulated areas and the interstate movement of nursery stock from regulated areas were scheduled to expire three years from the effective date, unless APHIS issued another rule before that time to extend or revise that aspect of the P. ramorum regulatory program. That expiration date only pertained to regulated areas in California, Oregon, and Washington that are outside quarantined areas. We have decided that the sunset clause included in the Federal Order is no longer necessary or appropriate, therefore we are not including it in this rule and are continuing the provisions described above pertaining to nurseries located in regulated areas and the interstate movement of nursery stock from regulated areas until further notice.

This rule also restricts the interstate movement of associated articles  6 and non-host nursery stock from quarantined areas. Associated articles must meet the same conditions for interstate movement from a quarantined area that apply to regulated articles of nursery stock; those conditions can be found in revised § 301.92-11(a). Non-host nursery stock must typically meet the same conditions for interstate movement from a quarantined area that apply to regulated articles of nursery stock, but if a nursery in a quarantined area contains no regulated articles of nursery stock or associated articles, non-host nursery stock may be moved interstate from that nursery provided the nursery is inspected and found free of evidence of P. ramorum in accordance with revised § 301.92-11(b), which contains essentially the same inspection and sampling protocol described above under the heading “Requirements for Moving Non-Host Nursery Stock Interstate from Regulated Areas.” Note that to be eligible for interstate movement, non-host nursery stock that is rooted in soil or growing media requires certification that the soil or growing media meets the requirements of § 301.92-5(a)(1)(iii).

Most revisions made to the regulations by this rule pertain to inspection and sampling protocols for nursery stock moving interstate from California, Oregon, and Washington. In order to eliminate confusion over what provisions apply in a given situation, we have prepared the following table.

This rule also amends certain existing provisions pertaining to inspection and testing of nurseries in quarantined areas. Prior to the effective date of this interim rule, the inspection and sampling protocol contained in § 301.92-11 required nurseries that ship regulated articles of nursery stock interstate to be inspected and tested annually for P. ramorum , and each shipment intended for interstate movement to be inspected for symptoms of P. ramorum , and if necessary, tested. This rule amends the text of those provisions in order to clarify them and improve their effectiveness. Specifically, in this rule:

• The provisions for inspecting nurseries are revised. We are requiring the inspections to be focused on the detection and identification of symptomatic regulated articles of nursery stock and associated articles, and are requiring that all symptomatic plants be sampled and tested. We believe inspecting the entire nursery and focusing on all proven host nursery stock and associated plant taxa will best enable us to determine if P. ramorum is present in the nursery being inspected.

• The testing protocol is specified. The regulations in effect prior to this rule simply required samples to be sent to an APHIS-approved laboratory for testing. This rule requires samples to be tested and evaluated using an APHIS-approved method at an APHIS-approved laboratory in order to ensure that the tests produce accurate and consistent results. This rule also describes the only currently approved test protocol. The protocol is described in detail later in this document under the heading “Testing.”

• We are clarifying that nurseries in quarantined areas must have a current and valid annual certification of freedom from evidence of P. ramorum in order to submit individual shipments of nursery stock for inspection.

• We are specifying conditions under which nurseries in quarantined and regulated areas may continue to move articles interstate if the nursery receives articles from an uncertified nursery in a quarantined or regulated area. These conditions are located in § 301.92-5, paragraphs (a)(1)(iv)(D) and (b)(1)(ii), respectively.

New hosts of P. ramorum are being identified on a monthly, sometimes weekly, basis. As such, the regulations may not always reflect all known proven hosts and associated plant taxa. Under the regulations in § 301.92-2, an inspector may notify a person that a given product or article is subject to the regulations, even if the product or article is not specifically listed in the regulations. This might occur if the product or article (i.e. non-host nursery stock, pots, or potting tools) was associated with other products or articles that are likely infected with P. ramorum. In those instances, the product or article would be held until determined free from P. ramorum using official, APHIS-approved testing. APHIS inspectors provide notice to affected States and stakeholders when new hosts are confirmed and associated plants are identified. Such plants and their products then become subject to the regulations. Hosts are added when official samples (samples taken by Federal, State, or county inspectors and submitted to APHIS) are confirmed to be infected with P. ramorum. National plant protection organizations (NPPO) of foreign countries are also recognized as credible sources for the identification of new hosts, as well as known P. ramorum researchers who publish their new host findings in peer reviewed journals or report their findings. When researchers report new host finds, these finds are verified either by the NPPO of the country in which the researcher resides or by APHIS.

In this rule, we clarify that the following provisions apply when APHIS informs a nursery owner that additional proven hosts or associated plants have been confirmed:

• Nurseries operating under a compliance agreement in accordance with § 301.92-6 may continue to ship plants interstate in accordance with the regulations.

• Nurseries that had not previously contained any regulated or associated articles, and that had been inspected in accordance with § 301.92-11(b)(3) and allowed to ship plants interstate without a certificate, but that contain a newly identified proven host or associated plant must cease interstate shipments of regulated and associated articles until the nursery is reinspected and found free of evidence of P. ramorum in accordance with § 301.92-11. Nurseries that come under regulation during winter dormancy periods and that are not able to be inspected in accordance with § 301.92-11 prior to desired shipments of non-host nursery stock may be allowed to ship non-host nursery stock interstate at the discretion of an inspector.

These provisions provide clear guidance to affected persons as to how they will be affected by additions to the lists of proven hosts and associated plant taxa.

We are also amending the regulations to clearly describe the testing protocols that must be used to determine whether plant samples taken in accordance with the regulations are infected with P. ramorum. These testing requirements are located in a new § 301.92-12. Under this section, samples must be analyzed using a methodology approved by APHIS at a laboratory approved by APHIS. The process for testing and analyzing samples is described below. 7

Any samples collected in accordance with the regulations may be prescreened using an APHIS-approved enzyme-linked immunosorbent assay (ELISA) to determine the presence of Phytophthora spp. ELISA tests are optional; however, if all samples collected from a single nursery or a single shipment are found to be negative through ELISA prescreening, no further testing of the plants sampled is required. A nursery or shipment of plants may be considered free of evidence of P. ramorum based on negative results of ELISA tests, and provided all other applicable requirements are met, the plants are eligible for interstate movement. 8

If ELISA prescreening is not performed, or if results of ELISA prescreening are positive for Phytophthora spp. in any sample, the sample must be analyzed using an APHIS-approved  9 test. Samples will be considered positive for P. ramorum based on positive results of any approved test. Positive PCR or other molecular tests do not require confirmatory culture tests, nor do positive culture tests require confirmatory PCR or other molecular tests; however, if culture tests return other than positive results, an APHIS-approved PCR or other molecular test must be conducted, as described below. No culture test is required if an APHIS-approved PCR or other molecular test returns negative results. Plants in the nursery must be withheld from interstate movement pending negative test results in accordance with applicable provisions of § 301.92-11.

If the results of PCR or other molecular tests are negative for all samples from a nursery or single shipment, no further testing is required. The nursery or shipment sampled may be considered free of evidence of P. ramorum.

If any samples tested using the PCR protocol or another approved protocol return positive results for P. ramorum , the nursery from which they originate is prohibited from moving plants interstate until an inspector determines that plants intended for interstate movement are free of evidence of P. ramorum infection. When an inspector determines that a nursery in a regulated area is free of evidence of P. ramorum infestation, the nursery will be eligible to move plants interstate under certificate. Nurseries in quarantined and regulated areas that contain only non-host nursery stock are eligible to move plants interstate in accordance with § 301.92-11(b) and (d).

Similarly, when an inspector determines that a shipment of nursery stock intended for interstate movement from a nursery in a quarantined area is free of evidence of P. ramorum infection, and provided the nursery has current and valid annual certification in accordance with the regulations, the shipment of nursery stock is eligible for interstate movement under certificate.

If the results of culture tests are other than positive for any samples taken from a nursery or a single shipment, each plant sample that returns other than positive culture results must be tested again using an approved PCR or other molecular test, and plants from the nursery or shipment are only eligible for interstate movement if results of such tests are negative for all samples taken.

If any culture tests return positive results for P. ramorum , the movement of nursery stock is restricted under the same conditions described above for positive PCR and other molecular tests.

We are restricting the interstate movement of decorative trees without roots (e.g., Christmas trees) of proven P. ramorum host taxa. Under the regulations, locations where trees are grown for sale as decorative trees without roots, and locations where decorative trees without roots are stored or distributed are considered nurseries. As such, any such location that ships trees interstate and that grows decorative trees without roots of proven P. ramorum host taxa is subject to the same inspection, testing, and certification requirements as any other nursery. Thus, decorative trees without roots that are shipped interstate from quarantined areas must originate from a nursery that has current, valid annual certification of freedom from evidence of infestation by P. ramorum in accordance with § 301.92-11(a)(1) and individual shipments must also be inspected and certified in accordance with § 301.92-11(a)(2).

Note that locations that grow, store, or distribute decorative trees without roots that are not proven hosts of P. ramorum are not regulated under this rule unless the location contains proven hosts. If the nursery ships interstate and contains any proven hosts, the nursery is subject to the regulations.

The interstate movement of decorative trees without roots from regulated areas is not regulated under this rule.

Prior to this rule, the regulations only allowed the movement of regulated articles of wreaths, garlands, and greenery from a quarantined area if the articles were treated in accordance with a treatment listed in 7 CFR part 305 or a treatment listed in § 301.92-10. In this rule, we are amending the regulations to allow wreaths, garlands, and greenery of proven P. ramorum host taxa to be moved interstate from a quarantined area if the articles originate from a nursery that has current, valid annual certification of freedom from evidence of infestation by P. ramorum , in accordance with § 301.92-11(a)(1), and provided that individual shipments of such articles are inspected and certified in accordance with § 301.92-11(a)(2).

The regulations in § 301.92-4 have provided for the interstate movement of restricted articles via departmental permit. 10 APHIS does issue permits for the movement of restricted articles for research purposes, but technically not via a departmental permit. Therefore, we are amending the regulations in § 301.92-4 to provide that we will issue permits for such movements in accordance with the requirements of 7 CFR part 330, which provides for the movement of plant pests and material that may be infected or infested with plants pests.

We are clarifying in revised § 301.92 that the interstate movement of regulated, restricted, or associated articles, or nursery stock that has been tested with a test approved by APHIS and found infected with P. ramorum , or that is part of a plant that was found infected with P. ramorum , is prohibited, unless such movement is in accordance with the plant pest regulations in 7 CFR part 330.

In conjunction with the changes described in this document, we are adding definitions for the terms associated article, from, lot, non-host nursery stock, nursery , and regulated area to § 301.92-1. The definitions for associated article, lot, non-host nursery stock and regulated area are described earlier in this document. The term from is defined in order to clarify when a particular nursery requires inspection. An article is considered to be “from” a specific site or location if it was grown or propagated in, stored or sold, or distributed from the site or location.

The term nursery is defined in order to clarify what types of businesses are subject to the regulations pertaining to the interstate movement of nursery stock. Nursery is defined as any location where nursery stock is grown, propagated, stored, or sold; or any location from which nursery stock is distributed. Also, as described earlier in this document, locations that grow trees for sale without roots (e.g., as Christmas trees) are considered to be nurseries for the purpose of the regulations.

In addition, we are revising the definitions of certificate, forest stock, mulch, nursery stock, and soil in § 301.92-1. The definition of certificate is revised to reflect the fact that certificates issued in accordance with the regulations may be in the form of a stamp or imprint that looks like this:

The definition for mulch is revised to clarify that plant material meeting the definition of mulch (bark chips, wood chips, wood shavings, or sawdust, or a mixture thereof) is regulated as mulch if used as part of a growing media mixture.

The definition of nursery stock is revised to (1) ensure that it applies to all potential P. ramorum host materials, bedding plants, and other herbaceous plants, bulbs, and roots, (2) clarify that it applies to tree seedlings being used for reforestation, and (3) remove references to seeds and fruit pits, as those articles are not subject to regulation under the quarantine. In conjunction with this change, and with the addition of a definition for nursery , we are also revising the definition for forest stock to reflect that forest stock includes all flowers, trees, shrubs, vines, scions, buds, or other plants that are wild-grown, backyard-grown, or naturally occurring.

The definition for soil is revised to reflect the definition used by the International Plant Protection Convention glossary of phytosanitary terms:  11 The loose surface material of the earth in which plants grow, in most cases consisting of disintegrated rock with an admixture of organic material. As a result of revising the definition of soil , we also need to add provisions to the regulations to ensure the regulations continue to cover growing media mixtures that were clearly regulated under the prior regulations as soil . As such, we are adding a definition of growing media to the regulations, as well as updating the regulations so that growing media is regulated in the same fashion as soil. Growing media is defined as any material in which plant roots are growing or intended for that purpose.

We are revising the provisions pertaining to quarantined areas in § 301.92-3 to make it clear that APHIS will quarantine an area based on confirmed detections of P. ramorum in the natural environment, not based on detections in artificial environments such as nurseries.

We are also clarifying provisions throughout the regulations regarding certifications of freedom from P. ramorum . The regulations in effect prior to this interim rule restricted the interstate movement of regulated articles from nurseries until such a time as an inspector could determine that the nurseries are free of evidence of P. ramorum . This rule provides that nurseries must be free of evidence of P. ramorum infestation; certification of “pest freedom” can only be made if each individual plant is tested for the pathogen.

We are also updating § 301.92-7 regarding advance notice for the services of an inspector to require that a person wishing to move plants that require a certificate for interstate movement must notify the inspector as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired time of inspection. This section had previously stated that we require 14 days' advance notice, but we are able to respond with 48 hours' notice.

We are updating § 301.92-10 pertaining to treatments to make it clear that soil treated for P. ramorum must be heated such that the temperature at the center of the load reaches at least 180 °F for 30 minutes. We are also clarifying that the hot water dip for wreaths, garlands, and greenery is applicable to all regulated articles, including newly listed ones, as well as referencing the approved treatment for bay leaves listed in 7 CFR part 305.

The study of P. ramorum is constantly producing new information that allows us to better regulate the interstate movement of plant material to prevent the spread of the diseases caused by the pathogen. APHIS and the Forest Service, USDA, have been conducting annual national surveys to determine whether and where P. ramorum exists in other areas of the United States. If additional hosts of P. ramorum are identified during the course of the national survey or by other scientific research, we will add those hosts to the list of regulated and restricted articles as appropriate. Detection of P. ramorum on other species through PCR or culture tests could result in those species being added to the list of associated articles. Completion of Koch's postulates would prove them as hosts.

This rule is being promulgated on an emergency basis to address specific imminent risks. We recognize that several facets of the regulations require additional revision to bring them up to date with current operational practices and the state of scientific knowledge regarding P. ramorum. We intend to publish another document for public comment in the future that will focus on treatments. We also intend to update the conditions for interstate movement for certain articles other than nursery stock, including wreaths and garlands, leaves, stems and branches, green waste, and other articles.

We will continue to review our P. ramorum regulatory program and evaluate the new restrictions on nurseries in regulated areas upon receipt of comments on this rule, and upon evaluation of data derived from the program so far. We will provide public notification of any changes to the regulations via a document published in the Federal Register .

This rulemaking is necessary on an emergency basis to prevent the spread of P. ramorum outside quarantined areas in California and Oregon and infected nursery sites in California, Oregon, and Washington. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this interim rule. It provides a cost-benefit analysis as required by Executive Order 12866, as well as an initial regulatory flexibility analysis, which considers the potential economic effects of this interim rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. The full economic analysis may be viewed on the Regulations.gov Web site (see ADDRESSES at the beginning of this document for instructions for accessing Regulations.gov). You may request paper copies of the economic analysis by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to Docket No. 01-054-3 when requesting copies. The economic analysis is also available for review in our reading room (information on the location and hours of the reading room is listed under the heading ADDRESSES at the beginning of this document).

We do not currently have all of the data necessary for a comprehensive analysis of the effects of this interim rule on small entities. Therefore, APHIS welcomes public comment that would enable us to more fully consider impacts of the rule, specifically information on costs that may be incurred due to complying with the interstate movement restrictions.

This interim rule places restrictions on the interstate movement of nursery stock from California, Oregon, and Washington. This economic analysis will focus primarily on the effects of restricting nursery stock from the regulated and quarantined areas. While there are other articles regulated besides nursery stock, such as trees without roots (i.e., Christmas trees), the economic impacts of restricting the movement of these other articles are expected to be relatively smaller, and therefore are not a primary focus of the analysis. 12

Those nurseries wishing to engage in interstate movement of nursery stock of proven and associated hosts of P. ramorum may only do so if it is accompanied by a certificate issued under an APHIS Phytophthora ramorum compliance agreement. Nurseries located in the quarantined area that are planning to ship host articles must undergo annual inspection, as well as inspection of individual shipments, prior to being certified to ship interstate. In order to ship non-host articles interstate, nurseries in the quarantined area must follow these same protocols, with the exception that nurseries containing no proven or associated host stock may receive certification to ship after undergoing annual inspection and will not be required to inspect individual shipments. On the other hand, nurseries in the regulated area that intend to ship nursery stock of proven or associated host taxa must undergo annual inspection to be certified to ship interstate. Only those nurseries that contain only non-host nursery stock can ship without certification, provided that they have undergone annual inspection. In order to enter into a compliance agreement and obtain certification to ship regulated articles, the nursery must take certain steps, such as undergoing annual inspection and sampling of nursery stock, and testing plant samples at a USDA approved laboratory using federally approved laboratory protocols. Thus, there are two major components to certification: Inspection and testing. It is important to note that the costs associated with entering into and maintaining a compliance agreement were covered by regulating agencies, specifically USDA and State departments of agriculture in 2005 and 2006. Funding for entering into and maintaining a compliance agreement in 2007 will transition and have to be borne by the entity under the compliance agreement for any amount not covered by available Federal or State funding. APHIS will provide affected entities with advance notice and guidance before we change the way we fund—including the possibility of requiring additional funding support from program participants and other cooperators—the specific activities associated with entering into and maintaining compliance agreements.

Nurseries will be required to undergo annual inspection and be certified free of P. ramorum. This inspection and sampling will be provided by Federal and State inspectors, the cost of which was covered by USDA in 2005 and 2006, when conducted during normal business hours. Individual nursery operators are responsible for all costs and charges arising from inspection and other services provided outside normal business hours. In addition, for those nurseries that must undergo inspection and sampling of individual shipments, the costs of those services were also covered by USDA in 2005 and 2006. Likewise, Federal funds are expected to cover the costs for these inspection and sampling activities in 2007, to the extent that funds are available. APHIS will provide affected entities with advance notice and guidance before we change the way we fund those inspection and sampling activities.

The interim rule will further amend the regulations by specifically describing the testing protocols that must be used to determine whether plant samples are infected with P. ramorum. While samples are being tested, nurseries must withhold shipments from movement until negative results are returned. The actual cost impact on nurseries will vary, depending on the classification of article shipped and/or the type of testing performed. Nurseries may choose to prescreen samples by using the optional APHIS-approved ELISA test to determine the presence of Phytophthora spp. If all samples collected from a single nursery or a single shipment are found to be negative through ELISA prescreening, no further testing of the plants sampled is required. If ELISA prescreening is not performed, or if results of the prescreening are positive for Phytophthora spp. in any sample, the sample must be analyzed using APHIS-approved testing such as PCR or other molecular tests, or a culture test. Samples will be considered positive for P. ramorum based on positive results of any approved test. If the results of PCR assay or other molecular tests are negative for all samples in a nursery, no further testing is required, and the nursery may be considered free of P. ramorum. In the case of any of the samples tested using PCR or other molecular tests, or a culture test, returning a positive result for P. ramorum, the nursery from which they originated is prohibited from moving plants interstate until an inspector determines that those plants are free of evidence of P. ramorum. In the event a nursery opts to test samples using a culture test, and the results are negative for P. ramorum, it is important to note that these samples must continue to be withheld from shipment until they return a negative result to a PCR or other molecular test. General estimates approximate the cost of ELISA, PCR and other molecular tests to be $15 per test, whereas the approximate cost of a culture test is about $10 per test. 13 This testing has been provided by Federal and State inspectors, the cost of which was covered by USDA or States in 2005 and 2006. Funding for testing activities in 2007 and beyond will transition to the nursery for costs not covered by any available Federal or State funding. APHIS will provide affected entities with advance notice and guidance before we change the way we fund those testing activities.

The P. ramorum program was fully funded for the fiscal year (FY) 2006, with the total available funds being $8.353 million. 14 In FY 2006, we estimated spending approximately $6.35 million in P. ramorum activities in California, Washington, and Oregon, of which approximately $4.15 million was allocated to inspection, sampling, testing, and certification activities. The remainder of the spending was allocated to national survey, trace forwards and trace backs, eradication, and enforcement activities of the regulation.

In addition to the monetary costs of compliance agreements and nursery and shipment certifications borne by the public sector, there are also indirect costs to the nurseries as a result of regulation. For example, there could be potential costs associated with lost sales while withholding plants for shipment during inspection and testing. Further, the presence of P. ramorum , and the accompanying movement restrictions where there were none previously could result in a potential loss in consumer confidence for nursery stock from the regulated area. These potential indirect losses are not quantifiable; however, we examine them to the extent possible in the sections that follow. In researching the possible impacts of the rule on nurseries, we solicited comments from State departments of agriculture, as well as industry associations. In some cases, no information was provided, either because it was unavailable and/or unidentifiable, or because it was considered to be confidential business information. We welcome public comment on the impacts of the interim rule.

As of July 2005, there were 861 nurseries in California that have been inspected and determined to be free of P. ramorum , and were authorized to ship non-host nursery stock interstate without a certificate. In addition, there were 81 locations in the quarantined area authorized to ship host material under P. ramorum compliance agreements, and 323 locations in the regulated area operating under P. ramorum compliance agreements. 15 As mentioned earlier, the majority of direct enforcement costs of the regulation associated with entering into compliance agreements, such as inspection, sampling, and testing, have been paid for by regulatory agencies. In 2005, $4.2 million in regulatory funds were allocated to P. ramorum quarantine and survey activities in California. In 2006, this amount increased to $5.4 million. It is important to note that these allocated funds do not include costs associated with trace back, trace forward, or eradication activities in the event of an infestation of nurseries as a result of interstate trade. 16

In addition, there are other costs of the regulation, many of which are indirect and more difficult to quantify. For example, in the case of a nursery in Azusa County found to be infected with P. ramorum , there were both direct and indirect losses. Direct losses due to plants being destroyed at cost, not at the wholesale value, as well as customer credits and other expenses totaled over $4.5 million for the 2004/2005 year. Other costs, such as lost sales while plants were on hold and possible loss of customer base due to loss in confidence, could not be quantified. 17

Other potential indirect costs were examined by a report on the economic impact of P. ramorum on the Californian nursery sector, prepared by researchers at the University of California, Berkeley. 18 In their study they found that many nurseries are investing in preventative pest management actions to reduce the risk of P. ramorum infection, which in turn increased their production expenses. These nurseries invested in preventative pest management by changing their inventory and labor practices and by applying fungicide to limit potential exposure to P. ramorum . The additional investments were estimated to account for less than 3 percent of all production expenses for the average nursery, suggesting that the average nursery has not been significantly impacted as a result of P. ramorum . However, there was evidence presented to suggest that the implications of the presence of P. ramorum are not borne equally among large and small entities. Small nurseries with a high percentage of host products face cost constraints which make it difficult to make the optimal investment in inventory management, thereby placing the smaller nurseries at greater risk of P. ramorum infestation. It is important to note that this impact is not a direct result of the regulation, but rather is a voluntary investment in preventative management to lessen the risk of P. ramorum infestation. Though this study was prepared with respect to nurseries in California, we can assume nurseries in Oregon and Washington are operating in much the same way, and face similar costs of P. ramorum regulation.

Officials at the California Department of Food and Agriculture (CDFA) confirmed that while no concrete figures are available, they have received reports from several nurseries of having lost revenue while holding plants during inspection, sampling, and testing. In addition, some in the industry feel the emergency Federal order did not adequately protect against further sanctions of nursery products from California by other nations.

The quarantined area of Oregon, an 11.5 square mile area as described in the regulations, contains no nurseries, and thus there are no entities subject to the movement restrictions on plants within the quarantined area. In the regulated area, there are 778 nurseries that contain host or associated plant material under compliance agreement to ship interstate. Additionally, there are 1,039 nurseries only growing, distributing, and storing non-host plant material under compliance agreement to ship non-host nursery stock interstate. The Oregon Department of Agriculture (ODA) estimates the total cost of certifying nurseries within the regulated area with proven and associated host nursery stock to be $307,820 per year. For nurseries containing only non-host nursery stock located within the regulated area, the total cost of annual inspection is estimated at $122,936. Neither of these estimates includes any potential indirect costs. In 2005, over $200,000 in regulatory funds was allocated to P. ramorum survey and quarantine activities in Oregon. In 2006, this amount increased to over $549,000. It is important to note that these allocated funds do not include costs associated with trace back, trace forward, or eradication activities in the event of an infestation of nurseries as a result of interstate trade. 20

Further, there may be indirect costs of the regulation incurred by nurseries. For example, ODA has received reports that some out-of-State customers are purchasing nursery stock from other States rather than Oregon because of the negative publicity related to finding a limited number of infested nurseries through inspection. While this regulation only concerns restricting interstate movement of nursery stock, it is interesting to note the anecdotal evidence of potential impacts of quarantining portions of Curry County for P. ramorum . For instance, Canada has quarantined the entire county, effectively prohibiting host plant genera and soil. ODA reports that Easter lily bulb growers have been particularly impacted, as it is impossible to remove all the soil from their bulbs. As a result, shipments of this high-value commodity to Canada have essentially been shut down. As a point of interest, 99 percent of Easter lily bulbs produced in the United States are grown in Curry County, OR, and Del Norte County, CA. Again, it is important to note that Canada's decision to quarantine all of Curry County is not an impact or result of this interim rule.

As of August 11, 2005, there were 131 nurseries in Washington growing or selling P. ramorum proven or associated host plants that had been inspected, are under a compliance agreement and are authorized to ship host material interstate. In addition, there are 138 nurseries under a compliance agreement and certified to ship non-host plants interstate. Again, it is important to note that cost of nursery inspections were covered by funds allotted to the Washington State Department of Agriculture (WSDA) by USDA-APHIS in 2006, and will be in 2007, to the extent that Federal funding is available. APHIS will provide affected entities with advance notice and guidance before we change the way we fund those inspection and testing activities. Therefore, the non-Federal direct cost of implementing the regulation will be minimal. As a point of interest, WSDA provided cost information of inspecting nurseries and performing laboratory tests on plant samples. In 2004, WSDA incurred a cost of $500 per host nursery for collecting samples and laboratory testing, in addition to an inspection fee of $31.10 per hour, bringing the average cost to approximately $600 per nursery. In 2005, over $104,000 in regulatory funds was allocated to P. ramorum survey and regulatory activities in Washington. In 2006, this amount increased to over $323,000. It is important to note that these allocated funds do not include costs associated with trace back, trace forward, or eradication activities in the event of an infestation of nurseries as a result of interstate trade. 22 Nurseries under the compliance agreement are permitted to bring in proven and associated host stock from non-certified nurseries in Oregon or California, provided that these shipments are held separately until they have been inspected, tested, and found free of P. ramorum . WSDA estimates that the cost of holding the plants for inspection and testing is probably negligible, since these activities are usually done as soon as requested. WSDA officials believe the Federal response has assisted in alleviating any misconceptions regarding P. ramorum infestations of West Coast nursery stock. Rather than create any negative stigma, the regulations and emergency Federal order have actually worked to boost sales which had been lagging in recent years.

In summary, because USDA has been covering the cost of inspection, testing, and certification, the direct costs of the interim rule for nurseries are expected to be minimal. USDA-APHIS currently covers some of the inspection and testing charges for all nurseries under the Federal Order. There are approximately 4,000 nurseries subject to the inspection requirements under the interim rule. 23 Approximately $4 million was expected to be spent in FY 2006 on inspection and testing activities in the regulated area, which translates to an average cost of $1,000 per nursery. This cost estimate is expected to hold for FY 2007 and FY 2008, to the extent that Federal funding is available. Of course there is a possibility that the number of nurseries required to be inspected subject to the rule may increase in the event that the number of host plants increases, thereby making more nurseries subject to this part of the regulations. In any case, to the extent that Federal funding is not available, the unfunded portion of the inspection and testing activities would have to be borne by the affected entity. APHIS plans to issue guidance on the implementation of transferring the costs of inspection and testing to nurseries in the event funding becomes unavailable.

Moreover, in the event that a nursery is found infected with P. ramorum , there will be additional costs of labor and revenue loss associated with plant destruction, but this cost would be limited by the extent of infestation. For example, the additional labor costs to destroy one infected plant would be less than that of a nursery full of infected plants. In addition, this interim rule requires nurseries to maintain fungicide reports for at least 2 years; however, regulated entities are already required to maintain fungicide reports, and because of that fact there are minimal recordkeeping costs associated with this interim rule. All nurseries that are operating under compliance agreements must also maintain records of all incoming shipments of plants for a minimum of 24 months and must make them available to inspectors upon request. In addition, all nurseries that are operating under compliance agreements, except retail dealers, must maintain records of outgoing shipments for a minimum of 24 months and make them available to inspectors upon request. Again, labor costs and recordkeeping costs are difficult to quantify as the magnitude varies by each nursery and by the level of infestation. As such, we welcome public comment regarding estimates of these costs as a result of the interim rule.

As is evident in each State's analysis, likely effects of the rule on consumer confidence in nursery stock from the West Coast are difficult to capture as it is largely dependent on buyers' perceptions. However, in light of the public's growing awareness of P. ramorum 's threat to the natural environment and nurseries, we believe that failure to promulgate this interim rule and place Federal restrictions on the interstate movement of nursery stock would further lessen consumer confidence in West Coast nursery stock. Hence, we believe the interim rule will boost confidence in West Coast nursery stock rather than lessen it. We welcome public comment on this indirect cost of the rule. In our research we have discovered other impacts of the regulation. For instance, the study conducted in California suggests that, in response to P. ramorum regulations, some nurseries are engaging in increased pest management activities so as to avoid infestation. These additional production expenses are not a result of the interim rule. Rather, such precautionary or risk-reducing activities are a rational response to the potential regulatory costs and production value loss of infestation.

This interim rule will amend the P. ramorum regulations to protect against the artificial spread of P. ramorum . This rule will provide two chief benefits: (1) Protect the environment outside of the quarantined area from the pathogen; and (2) protect nurseries outside the regulated area from becoming infected with the pathogen, while facilitating interstate sales of regulated articles from West Coast nurseries. Benefits of the rule will accrue both to entities in the immediate regulated area as well as to the general public and private enterprises across the nation, as this rule expands the quarantined boundary in order to contain the pathogen's spread in the natural environment and addresses the artificial spread via interstate movement restrictions.

The extensive environmental damage caused by P. ramorum makes its control a matter of public interest, all the more so given our incomplete understanding of the range of susceptible species. By expanding the quarantined area, we hope to confine the spread of the pathogen in the natural environment, with the goal of protecting forests and ecological areas in the regulated area and beyond. Ecological threats include a change in species composition in infested forests and therefore, in ecosystem functioning; loss of food sources for wildlife; a change in fire frequency or intensity; and decreased water quality due to an increase in exposed soil surfaces. 24

We do not have an estimate of the environmental costs that would be incurred if P. ramorum were to become widespread regionally or nationally. Given the tens of thousands of oak trees that have died in California, it is reasonable to assume that movement of the pathogen outside of the current area of quarantine would be potentially devastating.

With respect to benefits of the rule to the nursery industry, we queried State agricultural departments in the regulated area on the benefits of the emergency Federal order which went into effect January 10, 2005. However, that data was not available at the time this analysis was completed. We welcome public comment from the greenhouse/nursery industry and others on these benefits.

In the absence of data needed to analyze commercial benefits of this interim rule, we relate expected benefits to the sales value of the West Coast nursery industry. We present a description of that industry.

The nursery stock industry ranks second in value of agricultural production in California, with cash receipts totaling $2.44 billion in 2003. 25 Nursery and greenhouse production in California accounts for 11.9 percent of the State's total farm receipt value, and contributes 21.8 percent of the Nation's nursery and greenhouse products inventory. 26 The top five counties in production are San Diego, Orange, Riverside, Monterey, and Los Angeles. Of these only one, Monterey, is located in the area quarantined for P. ramorum. In Oregon, the nursery and greenhouse industry is the top agricultural industry, with sales of $844 million in 2004. 27 This equates to approximately 21 percent of the total value of agricultural production in Oregon. The Oregon Nursery and Greenhouse survey estimates there were 2,073 operations in 2004, with over half of those operations making less than $20,000 per year in sales. As was mentioned previously, there are no nursery operations in the quarantined portion of Curry County. In Washington, the value of production of specialty products was approximately $508 million in 2003. They include forest products, Christmas trees, floriculture, nursery and other horticultural products, and mushrooms. By itself, nursery and greenhouse products (including floriculture) had a total value of $313 million in 2003. 28 As a whole, the greenhouse/nursery industry represents the sixth most valuable category of agricultural commodities in the United States, with over $15 billion in cash receipts in 2003, and accounting for 7.2 percent of U.S. total agricultural value. 29

The interim rule will protect against the artificial spread of P. ramorum in commercial nurseries both in the regulated areas as well as nationwide. We do not have estimates of how the rule will reduce the probability of such spread. However, when the emergency Federal order was issued in December 2004, the total number of confirmed positive sites from the trace forward, national, and other survey was 176 in 22 States. Since the Order went into effect, the rate of new detections in nurseries outside the regulated area has declined sharply. Based on this experience, we believe that this interim rule will continue to protect commercial nurseries outside of the regulated area from artificial spread of the pathogen, and will also support sales of regulated articles from entities in the regulated area.

In sum, there are far-reaching benefits of the rule that we are unable to assess and quantify at this time. In light of the wide-ranging environmental resources that will be protected by this rule as well as the importance of the nursery industry, nationally and in the regulated area, the benefits of preventing the artificial spread of P. ramorum via interstate movement restrictions far outweigh the costs of implementing and complying with the interim rule.

The interim rule will affect all nurseries located in California, Oregon, and Washington. The Oregon Nursery and Greenhouse Survey estimates there were 2,073 operations in 2004, with over half having sales of less than $20,000 per year. According to the 2002 Census of Agriculture, there were 4,388 operations in California, 4,291 in Oregon, and 2,211 operations in Washington engaged in greenhouse, nursery, and floriculture production. 30 Of the 4,388 operations in California, there are 1,228 located within the quarantined area. Again, according to the ODA, there are no nurseries located within the quarantined area of Curry County, Oregon. We believe that the majority of operations would be considered small by SBA standards. SBA size standards for operations in nursery and tree production (North American Industry Classification System (NAICS) code 111421), or floriculture production (NAICS code 111422) are $750,000 or less in annual receipts. The SBA size standard for retail nursery and garden center operations (NAICS code 444220) is $6 million or less in annual receipts.

As described in section I, subsection C, of the full economic analysis, APHIS does not believe that there are alternatives to the interim rule that would satisfactorily accomplish the goals of the regulation. Our preferred action balances the need to protect forests and nurseries outside the regulated area while facilitating the interstate movement of proven and associated host articles and non-host articles.

This proposed rule contains certain reporting and recordkeeping requirements (see “Paperwork Reduction Act” below).

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local elected officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

The regulation of potential host plants and plant parts susceptible to P. ramorum has developed as the knowledge of the plant disease and the understanding of the epidemiology of the potential for spread of the causal agent increase. This interim rule is based on the best available science, and applies to plants that are both proven hosts or shown to be associated with this plant pathogen based upon positive test results. In addition, diagnostics to be used in support of these regulations have undergone a formal validation process by APHIS to ensure that regulatory actions are based upon results obtained from the most sensitive and accurate diagnostic tools available.

The purpose of this rule is to prevent the spread of the plant diseases to other parts of the United States; it is specifically designed to avoid or minimize adverse environmental impacts. The rule's expanded quarantine and movement restrictions do not pose any new environmental hazards nor any new methods not analyzed for potential risks. The expanded inspection, sampling, and testing are all requirements designed to enhance the protection of the environment.

Based upon the increased protection of the environment afforded by this interim rule and the recognition that this rule will be subject to revision as our knowledge of the disease and plant pathogen increase, there is no need for further environmental documentation at this time. As additional information becomes available, further decisions are likely and public input will be requested.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0310 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 01-054-3, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 01-054-3 and send your comments within 60 days of publication of this rule.

This interim rule restricts the interstate movement of nursery stock from nurseries in nonquarantined areas in California, Oregon, and Washington, updates conditions for the movement of regulated articles of nursery stock from quarantined areas, adds restrictions on the movement of decorative trees without roots from quarantined areas, and restricts the interstate movement of all other nursery stock from nurseries in quarantined areas. This rule also updates the list of plants regulated because of P. ramorum and the list of areas that are quarantined for P. ramorum.

Its implementation will require us to engage in certain information collection activities, in that, in certain cases, nursery stock may not be moved interstate from nurseries in quarantined or regulated areas unless they are accompanied by a certificate. A certificate may be issued by an inspector (i.e., an APHIS employee, State, or County inspector, or other person authorized by the APHIS Administrator to enforce the regulations) or by a person who has entered into a written compliance agreement with APHIS. Nursery owners must also keep records of fungicide applications for 2 years and must make them available to inspectors upon request. All nurseries that are operating under compliance agreements must also maintain records of all incoming shipments of plants for a minimum of 24 months and must make them available to inspectors upon request. In addition, all nurseries that are operating under compliance agreements, except retail dealers, must maintain records of outgoing shipments for a minimum of 24 months and must make them available to inspectors upon request. We are soliciting comments from the public concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the 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 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 0.31313 hours per response.

Respondents: Nurseries in the States of California, Oregon, and Washington.

Estimated annual number of respondents: 1,425.

Estimated annual number of responses per respondent: 5.0715789.

Estimated annual number of responses: 7,227.

Estimated total annual burden on respondents: 2,263 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.

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 interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 96-13-11, amendment 39-9679 (61 FR 35122, July 5, 1996). The existing AD applies to all Airbus Model A300 B2, B4-100, and B4-200 series airplanes. That NPRM was published in the Federal Register on September 26, 2006 (71 FR 56058). That NPRM proposed to continue to require supplemental structural inspections to detect fatigue cracking, and repair of cracked structure. That NPRM also proposed to require revising the maintenance program by incorporating new and revised supplemental structural inspections, inspection intervals, and repairs; and repair of any damaged, cracked, or corroded structure; which would end the existing supplement structural inspections.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received.

Airbus, the manufacturer, requests that we exclude the A300-600 series airplanes from the AD applicability. The commenter refers us to page 1-A of Airbus A300 Airworthiness Limitation Items Document SEM2/95A.1090/05, Issue 3, dated September 2005, as revised by Airbus Temporary Revision 3.1, dated April 2006, which does not include A300-600 series airplanes.

We agree with the commenter's request. We do not want any reader of this AD to infer that A300-600 series airplanes are included, and have changed the applicability to exclude those airplanes in paragraph (c) of this AD.

We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Examining the Docket

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 airplanes. That NPRM was published in the Federal Register on October 12, 2006 (71 FR 60085). That NPRM proposed to require a one-time inspection of the left- and right-hand main landing gear (MLG) downlock actuators or a review of the airplane maintenance records to determine the part number of each downlock actuator installed, and replacement of identified MLG downlock actuators with modified MLG downlock actuators.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

The Modification and Replacement Parts Association (MARPA) requests that, during the NPRM stage of AD rulemaking, the FAA state its intent to incorporate by reference (IBR) any relevant service information. MARPA states that without such a statement in the NPRM, it is unclear whether the relevant service information will be incorporated by reference in the final rule.

We do not agree with the commenter's request. When we reference certain service information in a proposed AD, the public can assume we intend to IBR that service information, as required by the Office of the Federal Register. No change to this final rule is necessary in regard to the commenter's request.

MARPA states that airworthiness directives are frequently derived from service information originating with the type certificate holder or its suppliers. MARPA further states that these manufacturer service documents are privately authored instruments generally enjoying copyright protection against duplication and publication. MARPA asserts that when a service document is incorporated by reference into a public document, such as an AD, it loses its private, protected status and becomes a public document. MARPA also states that if a service document is used as a mandatory element of compliance, it should not simply be mentioned, but should be incorporated into the regulatory document. Therefore, MARPA states that it is concerned that failure to incorporate the necessary service information could result in a court decision invalidating the AD. For these reasons, MARPA requests that the essential service documents be incorporated by reference into the regulatory instrument.

We understand MARPA's comment concerning IBR. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the document necessary for the accomplishment of the actions required by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

MARPA also requests that we make service information available to the public by publication in DMS, keyed to the action that incorporates that information. MARPA states that the purpose of the IBR method is brevity, to keep from expanding the Federal Register needlessly by publishing documents already available to the affected individuals. MARPA asserts that, traditionally, “affected individuals” has meant aircraft owners and operators who are generally provided service information by the manufacturer. MARPA further asserts that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of owners and operators. MARPA states that this new class of individuals includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors, and organizations manufacturing or servicing alternatively certified parts under sections 21.303 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303).

In regard to the commenter's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment.

MARPA also requests that the NPRM be revised to cover possible defective PMA alternative parts, rather than just a single part number, and to permit the use of new and improved PMA parts. MARPA states that type certificate holders typically ignore the existence of PMA parts in their service information, especially manufacturers in other countries of origin where the concept may not exist or be implemented. MARPA goes on to state that installation of a certain part-numbered part to the exclusion of all other parts, in some cases, effectively prohibits the installation of perfectly good parts and prohibits the development of PMA parts. MARPA asserts that such a prohibition runs the risk of removing the AD from the realm of safety and moving it into the realm of economics.

We acknowledge the need to ensure that unsafe PMA parts are identified and addressed in ADs. We are currently examining all aspects of this issue, including input from industry. Once we have made a final determination, we will consider how our policy regarding PMA parts in ADs needs to be revised. We consider that to delay this AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to the final rule in this regard.

MARPA also asserts that the NPRM does not comply with draft FAA Order 8040.2, which allows use of PMA parts based on a finding of identicality. MARPA suggests that adding language similar to that in draft Order 8040.2 would resolve the issue of possible defective PMA parts. MARPA points out that another AD issued from a Directorate other than the Transport Airplane Directorate does contain the wording that it has requested. MARPA therefore requests that the FAA agree, in a timely manner, on how the matter is to be treated.

The NPRM did not address PMA parts, as provided in draft FAA Order 8040.2, because the Order was only a draft that was out for comment at the time. After issuance of the NPRM, the Order was revised and issued as FAA Order 8040.5 with an effective date of September 29, 2006. FAA Order 8040.5 does not address PMA parts in ADs.

The FAA recognizes the need for standardization of this issue and is currently in the process of reviewing issues that address the use of PMAs in ADs at the national level. However, the Transport Airplane Directorate considers that to delay this particular AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to the final rule in this regard.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

The following table provides the estimated costs for U.S. operators to comply with this AD.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Streamlined Issuance of AD

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency Airworthiness Directive 2006-0365-E, dated December 4, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The corrective action includes a one-time inspection for cracks, and repair if necessary. You may obtain further information by examining the MCAI in the AD docket.

EADS-CASA has issued All Operator Letter 212-018, Revision 1, dated December 1, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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 issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the AD.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because after a recent C-212 Maritime Patrol aircraft accident, fatigue cracks were found in the center wing lower skin at STA Y=1030. This cracking could lead to reduced structural integrity of the airplane. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27335; Directorate Identifier 2006-NM-291-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because 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 we receive about this AD.

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.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

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

2. Is not a “significant rule” under 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 AD and placed it in the AD docket.

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on January 5, 2007 (72 FR 481). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that there have been instances indicating that production aircraft may not have a metal barrier between the cabin and the fuel tank bay. Lack of a barrier could allow flammable fuel vapors to enter the cabin. The MCAI requires that you, to ensure that the aircraft is in compliance with 14 CFR 23.967(d), inspect the aircraft to determine if a metal barrier is installed behind the seats and, if not installed, to manufacture and install a barrier.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD, and take precedence over the actions copied from the MCAI.

We estimate that this AD will affect 10 products of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $300 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $5,400 or $540 per product.

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.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket.

You may examine the AD docket on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2004-08-01, amendment 39-13570 (69 FR 19759, April 14, 2004). The existing AD applies to certain Fokker Model F.28 Mark 0070 and 0100 airplanes. That supplemental NPRM was published in the Federal Register on December 28, 2006 (71 FR 78107). That supplemental NPRM proposed to continue to require a one-time inspection of the sliding members in the main landing gear (MLG) for cracking, and replacement of the sliding members with serviceable parts if necessary. That supplemental NPRM also proposed to require repetitive magnetic particle inspections of the sliding members of the MLG for cracking and corrective actions as necessary. That supplemental NPRM also revised the original NPRM by correcting a certain part number in the applicability.

We provided the public the opportunity to participate in the development of this AD. No comments have been received on the supplemental NPRM or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed by the supplemental NPRM.

This AD affects about 37 airplanes of U.S. registry.

The inspection that is required by AD 2004-08-01 and retained in this AD takes either about 4 or 12 work hours per airplane, depending on airplane configuration, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions for U.S. operators is $11,840 or $35,520, or $320 or $960 per airplane, depending on airplane configuration.

The new required inspections take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the new inspections specified in this AD for U.S. operators is $5,920, or $160 per airplane, per inspection cycle.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Fokker Model F.28 Mark 0070 and 0100 airplanes. That NPRM was published in the Federal Register on November 20, 2006 (71 FR 67077). That NPRM proposed to require a one-time inspection of the fuel lines located in the left and right main landing gear bays to determine the clearance between the fuel and hydraulic lines. If necessary, that NPRM proposed to require an inspection of fuel lines for chafing, the replacement of a chafed fuel line with a new fuel line, and the repositioning of existing clamps and installation of additional clamps between the fuel and hydraulic lines.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

This AD affects about 9 airplanes of U.S. registry. The required inspection takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of this AD for U.S. operators is $720, or $80 per airplane.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Examining the Docket

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Bombardier Model DHC-8-102, -103, and -106 airplanes, and Model DHC-8-200 and DHC-8-300 series airplanes. That NPRM was published in the Federal Register on December 11, 2006 (71 FR 71492). That NPRM proposed to require doing a one-time inspection for damage of the electrical cable harness assembly located on the left and right wing root-to-fuselage aft seal, and repair if necessary; and reworking the fuselage aft seal assembly (left and right) to create a clearance between the electrical cable assemblies and the edge of the fairing panel.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

This AD affects about 136 airplanes of U.S. registry. The required actions take about 4 work hours per airplane, at an average labor rate of $80 per work hour. Required parts cost about $75 per airplane. Based on these figures, the estimated cost of this AD for U.S. operators is $53,720, or $395 per airplane.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Examining the Docket

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. That NPRM was published in the Federal Register on December 26, 2006 (71 FR 77312). That NPRM proposed to require repetitive inspections of the bolts that attach the exhaust nozzle to the aft engine flange to determine if any bolts are missing or fractured, and replacement of the existing bolts with new, improved bolts.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

The following table provides the estimated costs for U.S. operators to comply with this AD.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain EMBRAER Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes and Model ERJ 190 airplanes. That NPRM was published in the Federal Register on December 8, 2006 (71 FR 71096). That NPRM proposed to require inspecting to determine the part number and serial number of the deployment actuator of the ram air turbine (RAT) and related investigative and corrective actions if necessary.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have added to paragraph (f)(1) of this AD three airplane models that were unintentionally left out of that paragraph.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD, at an average labor rate of $80 per hour.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Instructions: All submissions received must include the agency name and docket number (MISC-023) for this rulemaking. All comments received will be posted without change to http://www.usitc.gov , including any personal information provided. For paper copies, a signed original and 14 copies of each set of comments, along with a cover letter stating the nature of the commenter's interest in the proposed rulemaking, should be submitted to Marilyn R. Abbott, Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436. Comments, along with a cover letter, may be submitted electronically to the extent provided by § 201.8 of the Commission's rules. This rule may refer commenters to the Handbook for Electronic Filing Procedures (see http://www.usitc.gov/secretary/edis.htm ). For those submitting comments by mail, it is advisable to mail comments in advance of the due date since Commission mail will be delayed due to necessary security screening.

Docket: For access to the docket to read comments received, go to http://www.usitc.gov or U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436. The preamble below is designed to assist readers in understanding these proposed amendments to the Commission's rules. The preamble includes a discussion of the background leading up to these proposed amendments, a regulatory analysis addressing government-wide statutes and issuances on rulemaking, and a description of the proposed amendments to the rules. The Commission encourages members of the public to comment—in addition to any other comments they wish to make on the proposed amendments—on whether the proposed language is sufficiently clear for users of the rules to understand.

If the Commission decides to proceed to final rulemaking after reviewing the comments filed in response to this notice, the final rule revisions will be promulgated in accordance with the Administrative Procedure Act (5 U.S.C. 553).

The interim rules establish a new part 208 of 19 CFR to provide for Commission investigations, determinations, and reports under section 112(c) of the African Growth and Opportunity Act (19 U.S.C. 3721(c)) (AGOA). The Commission's general authority to issue rules is set out in 19 U.S.C. 1335. On December 20, 2006, the President signed H.R. 6111 into law (Public Law 109-432), which amends section 112 of AGOA. Newly amended section 112(c) provides for Commission investigations and determinations concerning (1) Whether a fabric or yarn produced in beneficiary sub-Saharan African countries is available in commercial quantities for use by lesser developed beneficiary sub-Saharan African countries, and if so, (2) the quantity of the fabric or yarn that will be so available in lesser developed beneficiary sub-Saharan African countries in the applicable 1-year period (October 1-September 30) after the determination is made. Section 112(c) further provides, when the Commission makes an affirmative determination, for additional Commission determinations during and after the applicable 1-year period.

Because the new provisions became effective on the date of enactment, the Commission did not have sufficient time to issue a notice of proposed rulemaking. These interim rules are necessary because the Commission must conduct an investigation upon receipt of an appropriate petition, and in the absence of interim rules the public will have no guidance with respect to how the Commission intends to conduct its investigations and make determinations. The interim rules cover petitions for an investigation, Commission investigations in response to a petition, and the determinations described in (1) and (2), above, that the Commission must make.

The interim rules identify the types of entities that may file a petition and describe the information that must be included in a petition; provide for Commission investigations and establish procedures for conducting such investigations, including with respect to confidential business information; and describe the determinations and reports that the Commission will make and their content and timing.

The Commission has determined that the interim rules do not meet the criteria described in Section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. These interim regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b).

These interim rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).

No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ) because the interim rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.

The interim rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). Moreover, they are exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The interim rules are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), since they do not contain any new information collection requirements.

The Commission proposes to add part 208 in the manner described below.

Section 208.1 of new part 208 states that this part 208 applies to functions and duties of the Commission under section 112(c) of AGOA, as amended.

Section 208.2 sets forth definitions applicable to part 208, including with respect to the terms beneficiary sub-Saharan African country, lesser developed beneficiary sub-Saharan African countries, and applicable 1-year period.

Section 208.3 identifies the persons who may file a petition with the Commission under section 112(c) of AGOA, and lists the types of information that must be included in the petition.

Section 208.4 states that the Commission will institute an investigation not later than 10 days after receiving a properly filed petition, describes the information that the Commission will include in the Federal Register notice announcing the investigation, and states that the Commission will make the petition available for public inspection (with the exception of confidential business information).

Section 208.5 states that the Commission may, in its discretion, hold a public hearing, provide reasonable notice of any hearing, and afford interested parties the opportunity to be present, present evidence, and be heard at any such hearing.

Section 208.6 describes Commission procedures concerning the filing and service of documents and the required certification required by any person submitting factual information.

Section 208.7 states that the Commission will, if necessary, make its determinations on the basis of the facts available; will make its determinations by September 25, 2007, with respect to petitions received on or before March 28 and accepted on or before April 11, 2007, and will make its determinations by August 1 of subsequent years with respect to petitions received on or before January 15 and accepted on or before February 1 of those years; will include in its report to the President its determination(s) and an explanation thereof, and any dissenting or separate views of Commissioners; and will make public the report it sends to the President (with the exception of confidential business information).

Section 208.8 sets forth Commission policy under part 208 with respect to nondisclosure of confidential business information, and also generally requires that persons submitting confidential business information provide the Commission with a non-confidential summary of such information.

The Mental Health Parity Act of 1996 (MHPA) was enacted on September 26, 1996 (Pub. L. 104-204, 110 Stat. 2944). MHPA amended the Employee Retirement Income Security Act of 1974 (ERISA) and the Public Health Service Act (PHS Act) to provide for parity in the application of annual and lifetime dollar limits on mental health benefits with dollar limits on medical/surgical benefits. Provisions implementing MHPA were later added to the Internal Revenue Code of 1986 (Code) under the Taxpayer Relief Act of 1997 (Pub. L. 105-34, 111 Stat. 1080).

The provisions of MHPA, as originally enacted, are set forth in Part 7 of Subtitle B of Title I of ERISA, Chapter 100 of Subtitle K of the Code, and Title XXVII of the PHS Act. 1 The MHPA provisions in ERISA generally apply to all group health plans other than governmental plans, church plans, and certain other plans. These provisions also apply to health insurance issuers that offer health insurance coverage in connection with such group health plans. Generally, the Secretary of Labor enforces the MHPA provisions in ERISA, except that no enforcement action may be taken by the Secretary against issuers. However, individuals may generally pursue actions against issuers under ERISA and, in some circumstances, under state law.

The MHPA provisions set forth in section 712 of ERISA apply to a group health plan (or health insurance coverage offered by issuers in connection with a group health plan) that provides both medical/surgical benefits and mental health benefits. MHPA's original text included a sunset provision specifying that MHPA's provisions applied to benefits for services furnished before September 30, 2001. On December 22, 1997, the Departments of Labor, the Treasury, and Health and Human Services issued interim final regulations under MHPA in the Federal Register (62 FR 66931). The interim final regulations included this statutory sunset date.

On January 10, 2002, President Bush signed H.R. 3061 (Pub. L. 107-116, 115 Stat. 2177), the 2002 Appropriations Act for the Departments of Labor, Health and Human Services, and Education. This legislation extended MHPA's original sunset date under ERISA, the Code, and the PHS Act, so that MHPA's provisions would apply to benefits for services furnished before December 31, 2002.

On March 9, 2002, President Bush signed H.R. 3090, the Job Creation and Worker Assistance Act of 2002 (Pub. L. 107-147, 116 Stat. 21), that included an amendment to section 9812 of the Code (the mental health parity provisions). This legislation further extended MHPA's original sunset date under the Code to December 31, 2003.

On September 27, 2002, the Department of Labor issued an interim final amendment for mental health parity in the Federal Register (67 FR 60859). The interim final amendment included the new statutory sunset date under H.R. 3061, so that MHPA's provisions would apply to benefits for services furnished before December 31, 2002. The Department made the effective date of this interim final amendment to the regulations September 30, 2001.

On December 2, 2002, President Bush signed H.R. 5716, the Mental Health Parity Reauthorization Act of 2002 (Pub. L. 107-313, 116 Stat. 2457), an amendment to section 712 of ERISA and Section 2705 of the PHS Act. This legislation further extended MHPA's original sunset date under ERISA and the PHS Act to December 31, 2003. On April 14, 2003, the Department of Labor issued an interim final amendment for mental health parity in the Federal Register (68 FR 18048). The interim final amendment included the new statutory sunset date under H.R. 5716, so that MHPA's provisions would apply to benefits for services furnished before December 31, 2003.

On December 19, 2003, President Bush signed S. 1929, the Mental Health Parity Reauthorization Act of 2003 (Pub. L. 108-197, 117 Stat. 2998), an amendment to section 712 of ERISA and Section 2705 of the PHS Act. This legislation further extended MHPA's original sunset date under ERISA and the PHS Act to December 31, 2004. On January 26, 2004, the Department of Labor issued an interim final amendment for mental health parity in the Federal Register (69 FR 3815). The final rule included the new statutory sunset date under S. 1929, so that MHPA's provisions would apply to benefits for services furnished before December 31, 2004.

On October 4, 2004, President Bush signed H.R. 1308, the Working Families Tax Relief Act of 2004 (Pub. L. 108-311, 118 Stat. 1166), an amendment to section 712 of ERISA, Section 9812 of the Code, and Section 2705 of the PHS Act which extended MHPA's original sunset date under ERISA, the Code, and the PHS Act to December 31, 2005. On December 17, 2004, the Department of Labor issued an interim final amendment for mental health parity in the Federal Register (69 FR 75798). The interim final amendment included the new statutory sunset date under H.R. 1308, so that MHPA's provisions would apply to benefits for services furnished before December 31, 2005.

On December 30, 2005, President Bush signed H.R. 4579, the Employee Retirement Preservation Act (Pub. L. 109-151, 119 Stat. 2886) which amends ERISA, the Code, and the PHS Act to further extend MHPA's original sunset date to December 31, 2006. On March 20, 2006, the Department of Labor issued an interim final amendment for mental health parity in the Federal Register (71 FR 13937). The interim final amendment included the new statutory sunset date under H.R. 4579, so that MHPA's provisions would apply to benefits for services furnished before December 31, 2006.

On December 20, 2006, President Bush signed H.R. 6111, the Tax Relief and Health Care Act of 2006 (Pub. L. 109-432, 120 Stat. 2922) which amends ERISA, the Code, and the PHS Act to further extend MHPA's original sunset date to December 31, 2007. Like MHPA, this amendment to MHPA applies to a group health plan (or health insurance coverage offered by issuers in connection with a group health plan) that provides both medical/surgical benefits and mental health benefits. 2 As a result of this statutory amendment, and to assist employers, plan sponsors, health insurance issuers, and workers, the Department of Labor has developed this amendment of the interim final regulations, in consultation with the Departments of the Treasury and Health and Human Services, conforming the regulatory sunset date to the new statutory sunset date. The Department is also making conforming changes extending the duration of the increased cost exemption to be consistent with the new sunset date.

Since the extension of this sunset date is not discretionary, this amendment to the MHPA regulations is promulgated on an interim final basis pursuant to Section 734 of ERISA. This interim final amendment is also promulgated pursuant to Section 553(d)(3) of the Administrative Procedure Act, allowing for regulations to become effective immediately for good cause.

Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of the Executive Order, it has been determined that this action is not a “significant regulatory action” within the meaning of the Executive Order. This action is an amendment to the interim final regulations and merely extends the regulatory sunset date to conform to the new statutory sunset date added by H.R. 6111.

This action does not impose any new or revised information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-30. Therefore, no submission for OMB approval is being made in connection with this interim final amendment.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) imposes certain requirements with respect to federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq. ). Because this amendment to the interim final regulations is being published on an interim final basis, without prior notice and a period for comment, the Regulatory Flexibility Act does not apply.

For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) (UMRA), as well as Executive Order 12875, this interim final amendment does not include any federal mandate that may result in expenditures by state, local, or tribal governments, and does not include mandates that may impose an annual expenditure of $100 million or more on the private sector.

This interim final amendment is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ) (SBREFA), and has been transmitted to Congress and the Comptroller General for review. This amendment to the interim final regulations is not a major rule, as that term is defined by 5 U.S.C. 804.

Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires the adherence to specific criteria by federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the states, the relationship between the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This interim final amendment does not have federalism implications as it only conforms the regulatory sunset date to the new statutory sunset date added by H.R. 6111.

Because EPA received adverse comment, we are withdrawing the direct final rule for the National Emission Standards for Hazardous Air Pollutants for Shipbuilding and Ship Repair (Surface Coating) Operations published on December 29, 2006 (71 FR 78369). We stated in that direct final rule that if we received adverse comment by January 29, 2007, the direct final rule would not take effect and we would publish a timely withdrawal in the Federal Register . We subsequently received adverse comment on that direct final rule and are, therefore, withdrawing the rule. EPA is also reopening the public comment period for 60 days to afford affected sources an opportunity to collect and submit additional data. EPA will evaluate the comments received, including any data and other information, and will determine the appropriate course of action for addressing the activities at issue in the direct final rule.

Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) appear at 50 CFR part 648, subpart B, and regulations governing foreign fishing appear at 50 CFR part 600, subpart F. The final rule published on January 30, 2007 (72 FR 4211) and corrected on February 7, 2007 (72 FR 5643) identified the annual amounts of the initial optimum yield, allowable biological catch (ABC), domestic annual harvest, and domestic annual processing, as well as, where applicable, the amounts for total allowable level of foreign fishing and joint venture processing for the affected species managed under the FMP. The final rule implementing the Atlantic mackerel, squid, and butterfish fisheries specifications for 2007 also contained modifications to existing regulatory language to clarify that the most recent information should be used when developing annual specifications.

The regulatory text contained in § 648.22(b)(2) describes the procedure for calculating mackerel's ABC using a formula ABC = T - C, where C is the estimated catch of mackerel in Canadian waters for the upcoming fishing year and T is the catch associated with a fishing mortality rate that is equal to F target at B MSY or greater and decreases linearly to zero at “1/2 B MSY ” or below. Values for “F target ” and “B MSY ” are as calculated in the most recent stock assessment. The final rule describes the reference points and formula, but does not include any values. This approach makes it clearer that the values from the most recent stock assessment are to be used when calculating mackerel ABC.

The codified text, § 648.21(b)(2), published in the January 30, 2007, final rule indicated that T is the catch associated with a fishing mortality rate that decreases linearly to zero at “B MSY ” rather than “1/2 B MSY ”. This document corrects that error in addition to making editorial corrections to the second sentence in this paragraph, which did not reflect the subscript normally used in the scientific terms “B MSY ” and “F TARGET ”. Therefore, this document corrects § 648.21(b)(2)(i) appearing on page 4217 (FR Doc. E7-1445), first column, first full paragraph, first two sentences, contained in the January 30, 2007 Federal Register document.

The final rule published January 30, 2007 (72 FR 4211) contained regulatory text, § 648.22(a) describing when NMFS will close the directed mackerel fishing. When the Regional Administrator, Northeast Region, NMFS, projects that 80 percent of the mackerel DAH is landed, a closure is necessary to prevent the DAH from being exceeded. However, the codified text contained the phrase “to prevent the DAH from being executed” rather than “exceeded”. This document corrects the codified text, § 648.22(a) on page 4217 (FR Doc. E7-1445), column 2, first sentence of paragraph (a)(1), contained in the January 30, 2007 Federal Register final rule document.