This proposed rule is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposed rule invites comments on revising the requirements for interhandler transfers of almonds under the administrative rules and regulations of the order. This rule would require handlers who transfer almonds to other handlers to report to the Board whether or not the almonds were treated to achieve a 4-log reduction in Salmonella . A mandatory treatment program to reduce the potential for Salmonella in almonds will take effect in September 2007. This action would enable the Board to track treated and untreated almonds and help facilitate administration of its mandatory treatment program. This action was unanimously recommended by the Board at a meeting on March 28, 2007.

Section 981.55 of the order provides authority for handlers to, upon notice to and under supervision of the Board, transfer almonds to another handler. Marketing order obligations regarding volume regulation, when in effect, and assessments must be fully met and may be divided between the participating handlers. Section 981.455 requires handlers to report to the Board on ABC Form No. 7, “Interhandler Transfer of Almonds,” information regarding interhandler transfers. Paragraph (a) of that section currently requires the following information: (1) Date of transfer; (2) the names and plant locations of both the transferring and receiving handlers; (3) the variety of almonds transferred; (4) whether the almonds are shelled or unshelled; and (5) the name of the handler assuming reserve and assessment obligations on the almonds transferred.

In August 2006, the Board recommended a mandatory treatment program to reduce the potential for Salmonella in almonds. USDA engaged in informal rulemaking to implement the program. A final rule was published on March 30, 2007 (61 FR 15021). Beginning in September 2007, handlers must subject their almonds to a process that achieves a 4-log reduction in Salmonella prior to shipment. The program exempts untreated almonds that are shipped to manufacturers in the U.S., Canada, and Mexico who agree to treat the almonds and untreated almonds that are shipped outside the U.S., Canada, and Mexico.

To help track treated and untreated almonds, the Board met in March 2007 and recommended revising the order's administrative rules and regulations to require handlers to report to the Board whether or not almonds transferred to other handlers were treated under the mandatory treatment program. Handlers would also have to include an identification number for each lot transferred. This number could be a contract number or other unique handler number that could identify the lot. Under the mandatory Salmonella treatment program, handler records must provide the ability to differentiate treated from untreated almonds (§ 981.442(b)(5)). Requiring handlers to provide lot identification numbers on their interhandler transfer forms would complement this requirement. These changes to the interhandler transfer requirements would help facilitate administration of the mandatory Salmonella treatment program. Paragraph (a) in § 981.455 is proposed to be revised accordingly.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 6,000 producers of almonds in the production area and approximately 115 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000.

Data for the most recently completed crop year indicate that about 52 percent of the handlers shipped under $6,500,000 worth of almonds. Dividing the average almond crop value for 2003-2005 reported by the National Agricultural Statistics Service ($2.043 billion) by the number of producers (6,000) yields an average annual producer revenue estimate of about $340,000. Based on the foregoing, about half of the handlers and a majority of almond producers may be classified as small entities.

This rule would revise § 981.455(a) of the order's administrative rules and regulations to require handlers who transfer almonds to other handlers to report to the Board whether or not the almonds were treated to achieve a 4-log reduction in Salmonella . A mandatory treatment program to reduce the potential for Salmonella in almonds will take effect in September 2007. This action would help the Board track treated and untreated almonds and help ensure the integrity of its mandatory program. Authority for this change is provided in §§ 981.55 of the order.

Regarding the impact of this action on affected entities, it would merely require handlers who transfer almonds to other handlers to indicate on ABC Form No. 7, “Interhandler Transfer of Almonds,” whether or not the almonds were treated to achieve a 4-log reduction in Salmonella . Handlers would also be required to include a lot identification number for each lot transferred.

Regarding alternatives to this action, the Board considered not requiring handlers to report whether their transferred almonds were treated to achieve a 4-log reduction in Salmonella . However, this would not allow the Board to track treated and untreated almonds. Thus, the Board unanimously recommended revising the requirements regarding interhandler transfers of almonds.

This action would slightly modify the reporting requirements for all California almond handlers. All handlers must currently report their interhandler transfers to the Board on ABC Form No. 7, “Interhandler Transfer of Almonds.” This form is currently approved by the Office of Management and Budget (OMB) under OMB No. 0581-0178, Vegetable and Specialty Crops. This rule would require that two extra columns be added to this form. One column would allow handlers to indicate whether or not the transferred almonds were treated to achieve a 4-log reduction in Salmonella. The second column would provide for inclusion of a lot identification number for tracking purposes. The revised form is being submitted to the OMB for approval under OMB No. 0581-NEW. Once approved, this information collection will be merged into OMB No. 0581-0178. Specific burden information is detailed later in this document in the section titled Paperwork Reduction Act.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by the industry and public sector agencies.

Additionally, the meetings were widely publicized throughout the California almond industry and all interested persons were invited to attend the meetings and participate in deliberations on all issues. The Board's Food Quality and Safety Committee discussed this issue on January 30, 2007. The committee recommended the change to the Board on March 28, 2007. Both of these meetings were public meetings and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 60-day comment period is provided for interested persons to comment on this proposal. All written comments received will be considered before a final determination is made on this matter.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the AMS announces its intention to request approval of a new information collection under the marketing order for California almonds. This new collection is a modification of currently approved ABC Form 7, “Interhandler Transfer of Almonds,” under OMB No. 0581-0178, Vegetable and Specialty Crops. Upon approval, this information collection will be merged into OMB No. 0581-0178.

Title: Almonds Grown in California, Marketing Order No. 981.

OMB No.: 0581-NEW.

Expiration Date of Approval: 3 years from OMB date of approval.

Type of Request: New collection.

Abstract: The information collection requirement in this request is essential to carry out the intent of the Act, to provide the respondents the type of service they request, and to administer the California almond marketing order program, which has been operating since 1950.

The Board met on March 28, 2007, and unanimously recommended revising the requirements for interhandler transfers of almonds whereby handlers who transfer almonds to other handlers would have to report to the Board whether or not the almonds were treated to achieve a 4-log reduction in Salmonella. A mandatory treatment program to reduce the potential for Salmonella in almonds will take effect in September 2007. This action would enable the Board to track treated and untreated almonds and help facilitate administration of its mandatory treatment program. This document concerns the reporting requirements regarding this change.

This information collection is only used by authorized representatives of USDA, including AMS, Fruit and Vegetable Programs regional and headquarters' staff, and authorized employees and agents of the Board. Authorized Board employees, agents, and the industry are the primary users of the information and AMS is the secondary user.

Estimate of Burden: Public reporting burden for this collection of information is estimated to be 0.5 hour per response.

Respondents: Almond handlers.

Estimated Number of Respondents: 50.

Estimated Number of Responses per Respondent: 5.

Estimated Total Annual Burden on Respondents: 125 per year.

Comments: Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments should reference OMB No. 0581-NEW and the California almond marketing order, and be sent to the USDA in care of the Docket Clerk at the address above. All comments received will be available for public inspection during regular business hours at the same address. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

The AMS is committed to complying 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.

A 60-day comment period is provided to allow interested persons to comment on this proposed information collection.

For the reasons set forth in the preamble, 7 CFR part 981 is proposed to be amended as follows:

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2007-28370; Directorate Identifier 2003-NM-239-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov .

You can examine the 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 DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received several reports indicating that Goodrich evacuation systems installed on certain Boeing Model 747 airplanes and Model 767 airplanes have not deployed properly due to corroded shear-pin restraints. The corrosion problem arose concurrently with a 1998 change in the anodize specification for restraint bodies. Corrosion of the shear-pin restraints, if not corrected, can lead to higher than designed release values, and in severe cases, can cause the two halves of the restraints to freeze up, which can lead to improper deployment and/or loss of use of the evacuation system. That loss could impede emergency evacuation and increase the chance of injury to passengers and flightcrew during the evacuation.

The reports involved certain Boeing Model 747 airplanes and Model 767 airplanes that are equipped with the affected Goodrich evacuation system as part of a type certificate (TC); however, certain Goodrich evacuation systems installed as a technical standard order (TSO) appliance on certain Airbus, Boeing and McDonnell Douglas transport category airplanes use the same restraints as those used by the affected type certificated Goodrich units. Therefore evacuation systems approved by either TSO or TC are subject to the identified unsafe condition. We are planning to issue similar rulemaking (Directorate Identifier 2005-NM-139-AD) for certain Boeing Model 747 airplanes and Model 767 airplanes that are equipped with certain type certificated Goodrich evacuation systems.

We have reviewed Goodrich Service Bulletins 25-343, Revision 3, dated January 12, 2007; and 25-344, Revision 2, dated October 11, 2006. Goodrich Service Bulletin 25-343 affects evacuation systems installed on certain Boeing and McDonnell Douglas transport category airplanes. Goodrich Service Bulletin 25-344 affects evacuation systems installed on certain Airbus transport category airplanes. For certain systems, the service bulletins describe procedures for replacing the shear-pin restraints with new, improved restraints. For certain other systems, the service bulletins describe procedures for an inspection to verify the manufacturing lot number of the restraints; and a general visual inspection of the restraints for discrepancies ( i.e. , corrosion, security of pin retainer/label, overall condition, and lack of play), and corrective action if necessary. The corrective action is replacing the shear-pin restraints with new shear-pin restraints. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. Therefore, we are proposing this AD, which would require you to use the service information described previously to perform these actions, except as discussed under “Difference Between this Proposed AD and the Service Bulletins.”

Although the service bulletins recommend accomplishing the replacement or inspection “at the next shop visit,” we have determined that this imprecise compliance time would not address the identified unsafe condition soon enough to ensure an adequate level of safety for the affected fleet. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition, and the average utilization of the affected fleet. In light of all of these factors, we find that a compliance time of 18 months for Goodrich evacuation systems installed on Boeing Model 767 off-wing ramp/slide units and 36 months for all other evacuation systems represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. We have coordinated this difference with the manufacturer.

This proposed AD would affect certain Goodrich evacuation systems installed on about 2,844 airplanes worldwide. This proposed AD would affect about 1,240 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

This action proposes to remove the applicability of certain requirements related to NO X emissions in the State of Georgia. If these requirements were not removed, they would potentially affect electric utilities, cement manufacturing, and industries employing large stationary source internal combustion engines.

1. Submitting CBI . Do not submit information that you consider to be CBI electronically through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.

2. Tips for Preparing Your Comments . When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information ( e.g. , subject heading, Federal Register proposal publication date and reference page number(s)).

• Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and provide substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the specified comment period deadline.

Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Mr. Roberto Morales, U.S. Environmental Protection Agency, OAQPS Document Control Officer, 109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter.

People interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Pam Long, Air Quality Planning Division, Office of Air Quality Planning and Standards (C504-03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-5509, e-mail address long.pam@epa.gov , at least 2 days in advance of the public hearing. People interested in attending the public hearing should also call Ms. Long to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. If a public hearing is held, further information will be contained in a subsequent notice, including the scheduled date, and it will be held at 9:00 a.m. in EPA's Auditorium in Research Triangle Park, North Carolina, or at an alternate site nearby.

The information presented in this preamble is organized as follows:

On October 27, 1998, EPA took final action to prohibit specified amounts of emissions of oxides of Nitrogen (NO X ), one of the main precursors of ground-level ozone, from being transported across State boundaries in the eastern half of the United States. (The NO X SIP Call Rule) (63 FR 57356, (October 27, 1998)). We found that sources and emitting activities in 22 States and the District of Columbia (23 States)  1 were emitting NO X in amounts that significantly contribute to downwind nonattainment of the 1-hour ozone national ambient air quality standard (NAAQS or standard). (63 FR 57356). We also determined separately that sources and emitting activities in these 23 States emit NO X in amounts that significantly contribute to and interfere with maintenance of downwind nonattainment of the 8-hour ozone NAAQS (63 FR 57358, 57379)). To determine significant contribution, we examined both the air quality impacts of emissions and the amount of reductions that could be achieved through the application of highly cost effective controls. The air quality impacts portion of our significant contribution analysis relied on state specific modeling, and modeling and recommendations by the Ozone Transport Assessment Group (OTAG) (62 FR 60335,(November 7, 1997), and 63 FR 57381-57399).

This analysis examined the impact of upwind emissions on downwind nonattainment areas. The preamble defined nonattainment for purposes of this analysis. It stated that a downwind area should be considered,

We assessed each upwind State's contribution to the 1-hour standard downwind nonattainment independent of the State's contribution to the 8-hour standard nonattainment. 62 FR 60326; 63 FR 57377 and 57395. We determined and concluded that the level of NO X emissions reductions necessary to address the significant contribution for the 8-hour NAAQS would be achieved using the same control measures for the 1-hour standard (63 FR 57446). Therefore, we promulgated only one NO X emissions budget for each of the affected upwind States (63 FR 57439). Further, we required these States to submit revised SIPs, prohibiting those amounts of NO X emissions such that any remaining emissions would not exceed the level specified in the NO X SIP Call regulations for that State in 2007. 62 FR 60364-5; 63 FR 57378 and 57426.

With regard to the State of Georgia, we determined that sources and emitting activities in the State of Georgia were significantly contributing to the 1-hour standard nonattainment in Birmingham, Alabama and Memphis, Tennessee (63 FR 57394). At the time the NO X SIP Call Rule was being developed, monitored air quality data for 1994-1996 indicated that Memphis, Tennessee had nonattainment air quality  2 although we had redesignated the Memphis, Tennessee nonattainment area as an attainment area in 1995. 3 60 FR 3352, (January 17, 1995). Further, Birmingham, Alabama was a designated nonattainment area for the 1-hour ozone NAAQS at the time we issued the SIP Call. In addition, the modeling done at that time showed that receptors in the Memphis and Birmingham areas were modeled to have nonattainment air quality in the year 2007. Thus, Memphis, Tennessee and Birmingham, Alabama were “nonattainment” areas for purposes of the NO X SIP Call Rule.

A number of parties, including certain States as well as industry and labor groups, challenged the NO X SIP Call Rule. Specifically, Georgia and Missouri industry petitioners, citing the OTAG modeling and recommendations, maintained that EPA had record support for the inclusion of only eastern Missouri and northern Georgia as contributing significantly to downwind nonattainment. The United States Court of Appeals for the District of Columbia (D.C. Circuit or Court), upheld our findings of significant contribution for almost all jurisdictions covered by the NO X SIP Call, with respect to the 1-hour standard  4 but vacated and remanded the inclusion of Georgia and Missouri, Michigan v. EPA , 213 F. 3d 663 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1225 (2001)( Michigan ). The Court agreed with the litigants that only the Eastern portion of Missouri and Northern portion of Georgia were within a geographic area for photochemical modeling known as the “fine grid,” and thus, the record for the rulemaking supported only including those portions of the two States. 5 Subsequently, in response to the Court decision in Michigan , we proposed (in what is referred to as the “Phase II NO X SIP Call rule”), the inclusion of only the fine grid parts of the States of Georgia and Missouri in the NO X SIP Call with respect to the 1-hour standard only. (67 FR 8396, (February 22, 2002)). We also proposed revised NO X budgets for the States of Georgia and Missouri that would include only the fine grid portions of these States. On April 21, 2004, we finalized the Phase II NO X SIP Call rule. This rule included eastern Missouri and northern Georgia as proposed, allocated revised NO X budgets that reflected the inclusion of sources in only these areas, and set revised SIP submittal and full compliance dates of April 1, 2005 and May 1, 2007, respectively. 69 FR 21604, (April 21, 2004).

After our promulgation of the Phase II NO X SIP Call rule, GCSEP, on June 16, 2004, took several legal actions: (1) A request that EPA reconsider the rulemaking in light of new information (2) a request that EPA stay the effectiveness of the rule pending a review of that information, and (3) a formal challenge to the rule in Federal Courts.

Petition for Reconsideration. GCSEP requested that EPA “convene a proceeding for reconsideration of the rule,” under section 307(d)(7)(B) of the Act. (Petition for Reconsideration, June 16, 2004) (Petition). GCSEP made this request based on assertions that:

GCSEP asserted that it “was impracticable to raise [its] objection within [the provided comment period] or [that] the grounds for [its] objection arose after the public comment period (but within the time specified for judicial review).” Section 307(d)(7)(B). In addition, GCSEP further asserted that its objection was “of central relevance to the outcome of the rule.” Section 307(d)(7)(B).

Request for Stay of Effectiveness. GCSEP also requested a stay of the effectiveness of the Phase II NO X SIP Call Rule as it relates to the State of Georgia only. The stay would delay the applicability of Phase II NO X SIP Call requirements to Georgia during the period EPA would conduct notice-and-comment rulemaking to address the issues raised in the Petition ( i.e. , the action initiated in this notice). On March 1, 2005, EPA proposed to stay the effectiveness of the Phase II NO X SIP Call Rule as requested by GCSEP. (70 FR 9897, (March 1, 2005)). Four parties commented on the proposed rule, raising issues related to the merits of the stay, and also raising issues related to the merits of the Petition. On August 31, 2005, EPA finalized, as proposed, a stay of the effectiveness of the Phase II NO X SIP Call Rule as it related to Georgia only. (70 FR 51591, (August 31, 2005)). EPA also responded to comments on the stay but indicated that it would respond to comments on the reconsideration in any subsequent reconsideration action.

Challenge in Circuit Court. Finally, GCSEP filed a challenge to the Phase II NO X SIP call rule in the Court of Appeals for the 11th Circuit, which has since been transferred to the D.C. Circuit. Georgia Coalition for Sound Environmental Policy v. EPA , Case No. 04-13088-C. The EPA and GCSEP have requested and the Court has granted the request to hold the challenge in abeyance pending completion of the present rulemaking.

This proposal initiates the process to respond to the Petition for Reconsideration. We propose to agree with the central point raised by the petitioner. That is, we propose to amend EPA regulations as recommended by GCSEP to remove only the State of Georgia from inclusion in the Phase II NO X SIP call rule based on additional information that became available after the close of the comment period for the proposed Phase II rule. We are not reopening any other portions of the NO X SIP Call and Phase II NO X SIP Call rules for public comment and reconsideration.

The primary purpose of this notice is to provide our rationale and an opportunity to comment on our proposed response to the Petition.

As noted in Section III below, the four parties who commented on the March 1, 2005 proposal related to the Stay of Effectiveness also provided a number of comments related to the Petition for Reconsideration. In this notice, we respond to a number of issues raised in these previous comments. We will fully respond to all substantive comments on the reconsideration in the final action on this proposal.

The EPA proposes to amend the Phase II NO X SIP call rule to remove the State of Georgia only. The EPA proposes to agree with GCSEP's request, and in this action we are proposing to rescind or withdraw our finding that sources and emitting activities in the State of Georgia emit NO X in amounts that significantly contribute to nonattainment of the 1-hour ozone standard in nonattainment areas in other States. We request comment on this proposal. We are not reopening any other portions of the NO X SIP Call and Phase II NO X SIP Call rules for public comment and reconsideration.

In the Petition for Reconsideration, GCSEP argued that the State of Georgia did not meet EPA's stated rationale for the NO X SIP call when EPA promulgated the Phase II NO X SIP Call rule. In short, GCSEP argued that (1) EPA based its inclusion of Northern Georgia on a finding that Northern Georgia contributes to nonattainment of the one-hour standard in Birmingham, Alabama and Memphis, Tennessee; (2) neither Birmingham nor Memphis was a nonattainment area at the time of the Phase II rulemaking; and (3) as a result of the revised attainment status of Birmingham and Memphis, there are no 1-hour ozone nonattainment areas in any States affected by NO X emissions from Northern Georgia, and (4) therefore Northern Georgia no longer satisfied EPA's stated rationale for inclusion in the NO X SIP call regulation. On each of these points, EPA proposes to agree.

In the 1998 NO X SIP Call Rule, we articulated a test for selecting the receptors used in evaluating impacts on downwind “nonattainment,” under section 110(a)(2)(D)(i)(I). We defined “nonattainment” areas as including “areas that have monitored violations of the standard and areas that ‘contribute to ambient air quality in a nearby area’ that is violating the standard” (63 FR 57373; See also, 63 FR 57375-85). Additionally, as noted previously, to be defined as “nonattainment” receptors, the receptor also had to be modeled to have nonattainment air quality in the year 2007.

As earlier explained, with regard to the State of Georgia, EPA determined that sources and emitting activity in this State emit NO X in amounts that significantly contribute to nonattainment of the 1-hour ozone standard in the Birmingham, Alabama and Memphis, Tennessee nonattainment areas (63 FR 57394). Although we had redesignated the Memphis, Tennessee nonattainment area in 1995, monitored air quality data for 1994-1996 indicated nonattainment air quality. 6 Birmingham, Alabama was designated nonattainment for the 1-hour ozone NAAQS and also had nonattainment air quality. Thus, at the time of the promulgation of the 1998 NO X SIP Call rule, both Memphis, Tennessee and Birmingham, Alabama were in “nonattainment” for purposes of the NO X SIP Call Rule. In addition, modeling done at that time showed that both areas were also projected to have nonattainment air quality in 2007.

We have now redesignated these areas to 1-hour ozone attainment areas and both currently have monitored air quality data that does not violate the 1-hour ozone standard. More specifically, on March 12, 2004, we redesignated Birmingham, Alabama, to attainment of the 1-hour ozone NAAQS. 69 FR 11798, (March 12, 2004). In addition, the Memphis, Tennessee nonattainment area, which was redesignated in 1995 has had monitored attainment air quality data since 2001.

Therefore, we agree with GCSEP that after promulgation of the NO X SIP Call Rule in 1998, both Memphis, Tennessee and Birmingham, Alabama now show attainment of the 1-hour ozone standard. Thus, they no longer meet the definition of “nonattainment” used in the 1998 NO X SIP Call to identify downwind receptor areas for the air quality impacts portion of the significant contribution analysis.

In light of the fact that both downwind receptor areas no longer qualify as nonattainment areas for purposes of the significant contribution analysis, we are proposing to withdraw our findings of significant contribution for the State of Georgia for the 1-hr standard. This in effect would mean that the State of Georgia would no longer be required to submit a revised SIP, by April 1, 2005, that prohibits certain amounts of NO X emissions. Additionally, we would no longer require the State of Georgia to adopt and implement NO X control measures, (originally required by May 1, 2007), that ensure the State achieves the aggregate NO X emissions budget set out in the Phase II NO X SIP Call Rule in the 2007 ozone season. There are no other areas that would be affected by our decision to withdraw the findings of significant contribution for the State of Georgia. We are soliciting comments on this proposal.

In addition to the issue of our redesignation of downwind receptors, discussed above, GCSEP raised a number of additional issues and concerns in its petition. GCSEP believes these additional issues and concerns provide additional rationale for its petition, and for the recommendation to not include Georgia in the NO X SIP call regulations. Because EPA is proposing to rescind the findings of significant contribution for the State of Georgia, and therefore, the requirement to comply with the NO X SIP call requirements, we do not believe that we need to take comment on these additional issues and concerns. Moreover, we believe that petitioners could have raised most of these issues and concerns during the comment period for the Phase II rulemaking. Therefore, we do not believe that they are of central relevance to the outcome of that rulemaking. Section 307(d)(7)(B) requires a petitioner to make a showing that it was “impracticable to raise [an] objection within the provided comment period or [that] the grounds for such objection arose after the period for public comment * * * and that such objection is of central relevance to the outcome of the rule.” Because EPA is proposing to rescind the SIP call requirements for Georgia on the grounds discussed herein, we do not believe it is either necessary or appropriate to respond to these additional arguments in this notice. A brief summary of each of these additional points is contained below:

Flaws in SIP call methodology. GCSEP's petition asserts that the CAA requires State-specific findings regarding a State's contribution. Citing CAA language in sections 110(k)(5) and 110(a)(2)(D), and noting that the NO X SIP Call relied on “subregional” runs with multi-State aggregations, GCSEP argues that the NO X SIP Call was flawed.

Changes to Georgia's SIP. GCSEP's petition notes that Georgia's current SIP contains regulations that achieve additional NO X reductions which went into effect between May 1, 2003 and June 1, 2004. For example, NO X emissions from electric generating units (EGUs), in the fine grid area of Georgia were reduced approximately 66% from 2000 levels. Because these required emissions reductions were not part of Georgia's SIP when EPA originally evaluated the adequacy of the SIP in 1997 and 1998, GCSEP argues that the Phase II NO X SIP Call Rule should have revisited its prior determination that the SIP was “inadequate” to prevent significant downwind impacts.

EPA's analysis outdated. GCSEP notes that there is a significant time period between EPA's additional analysis of the original 1998 rule and the Final Phase II rule in 2004. As a result, GCSEP asserts that EPA's record and basis for including Georgia in the SIP Call is so “stale” that data can no longer be used to support EPA's decision.

Assertions that EPA's decision to proceed with the final rule is arbitrary and capricious. GCSEP argues in the petition that EPA was “arbritrary and capricious” in including Georgia in its final rule without considering new information related to redesignation of areas in Alabama and Tennessee. In support of this argument, GCSEP discusses hypothetical arguments EPA might have made in rejecting its petition for reconsideration, using a response to a comment regarding our continued inclusion of Missouri in the Phase II NO X SIP Call Rule. (69 FR 21626-27).

As we stated in the final rule staying the effectiveness of the requirements of Phase II in Georgia, we received four comments raising issues that we deemed beyond the scope of the proposed stay. In this notice, EPA is now providing responses to those comments because we had indicated that we would be responding to them within the context of this rulemaking. (70 FR 51594).

Lack of a NO X emissions cap. Two commenters—the North Carolina Division of Air Quality (NCDAQ), and the Alabama Department of Environmental Management (ADEM)—opposed GCSEP's request for reconsideration and recommendation to remove Georgia from the SIP call regulations. Both NCDAQ and ADEM acknowledged that the current Georgia ozone SIP may currently be achieving greater NO X emissions reductions from Georgia sources that would have been subject to the NO X SIP call. Nonetheless, both NCDAQ and ADEM expressed concerns that sources of NO X emissions in Georgia would not be subject to an emissions cap unlike sources located in neighboring states that are subject to the NO X SIP Call Rule.

The EPA agrees that certain sources in Georgia would not formally be subject to an emissions cap. The EPA believes, however, that in practice it is extremely unlikely that NO X emissions in Georgia could increase above the levels required by the NO X SIP Call even in the absence of a cap. The principal reason that emissions will not increase is that local NO X emission reductions continue to be needed to address 8-hour ozone nonattainment in Atlanta. Given this long term need, SIP revisions will continually seek and provide decreases in NO X emissions. See also our response below to the comment on the effect of our removal of Georgia from the NO X SIP Call Rule on 8-hour ozone standard nonattainment downwind areas.

Effects on downwind 8-hour ozone standard nonattainment. Both NCDAQ and ADEM expressed concerns that the lack of a “cap” on certain sources in Georgia may impede the ability of neighboring States to meet and maintain the 8-hour ozone NAAQS.

The EPA believes that current analyses show that sources and emitting activities in Georgia do not contribute significantly to 8-hour ozone standard nonattainment in any other States. In the analysis for the final Clean Air Interstate Rule (CAIR),(70 FR 25162, (May 12, 2005)), EPA concluded that sources and emitting activities in Georgia do not significantly contribute to ozone nonattainment in other States, and accordingly, did not include Georgia within the region subject to NO X caps under CAIR for the ozone season.

ADEM notes in their comments that the CAIR modeling analysis assumed full implementation of the NO X SIP call in all affected States including Georgia. Although the ADEM does not make this point specifically, EPA infers from this comment a suggestion that EPA would have to revisit the CAIR modeling, without subjecting Georgia to the NO X SIP call, for EPA's conclusions related to Georgia's contribution in other States to continue to be supportable.

The EPA believes there is ample evidence that shows that the current Atlanta SIP reductions achieves greater reductions than would have been required by the Phase II NO X SIP Call Rule. The EPA has conducted an analysis, included in the docket for this rule, which shows that this is currently the case. Control measures implemented for the 1-hour ozone attainment demonstration for the Atlanta area were phased in beginning in 1999 and were fully implemented by the 2003 ozone season. This analysis showed, for example, that:

Moreover, as noted previously, Georgia will need further reductions in NO X emissions over time to continue to address 8-hour ozone nonattainment in Atlanta. Accordingly, EPA finds no basis to question its conclusion in the CAIR analysis that Georgia emissions do not contribute to 8-hour ozone nonattainment in other States.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. This action is proposing to grant a petition of reconsideration requesting that the State of Georgia not be included in the NO X SIP Call and does not impose any additional control requirements or incur any additional costs.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , because the action proposes to remove a regulatory requirement.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined in the Small Business Administration's (SBA) regulations at 13 CFR 12.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This action neither imposes requirements on small entities, nor will there be impacts on small entities beyond those, if any, required by or resulting from the NO X SIP Call and the Section 126 Rules. We have therefore concluded that this proposed rule will relieve regulatory burden for all small entities affected by this rule. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rules with “Federal mandates” that may result in the expenditure to State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or Tribal governments or the private sector. The EPA prepared a statement for the final NO X SIP Call that would be required by UMRA if its statutory provisions applied. This action does not create any additional requirements beyond those of the final NO X SIP Call, and will actually reduce the requirements by excluding the State of Georgia, and therefore no further UMRA analysis is needed.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action does not impose an enforceable duty on these entities. This action imposes no additional burdens beyond those imposed by the final NO X SIP Call. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have Tribal implications, as specified in Executive Order 13175.

It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. This action does not significantly or uniquely affect the communities of Indian Tribal governments. The EPA stated in the final NO X SIP Call Rule that Executive Order 13084 did not apply because that final rule does not significantly or uniquely affect the communities of Indian Tribal governments or call on States to regulate NO X sources located on Tribal lands. The same is true of this action. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action does not impose requirements beyond those, if any, required by or resulting from the NO X SIP Call and Section 126 Rules.

The public is invited to submit or identify peer-reviewed studies and data, of which the Agency may not be aware, that assessed results of early life exposure to NO X (or ground-level ozone, of which NO X is a precursor).

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards, therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. For the final NO X SIP Call, the Agency conducted a general analysis of the potential changes in ozone and particulate matter levels that may be experienced by minority and low-income populations as a result of the requirements of that rule. These findings were presented in the RIA for the NO X SIP Call. This action does not affect this analysis.

For the reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On July 25, 2002, EPA approved multiple documents submitted to EPA by Arizona for the Maricopa County area as meeting the CAA requirements for serious PM-10 nonattainment areas for the 24-hour and annual PM-10 national ambient air quality standards. 1 Among these documents is the “Revised MAG 1999 Serious Area Particulate Plan for PM-10 for the Maricopa County Nonattainment Area,” February 2000 (MAG plan) that includes the BACM demonstrations for all significant source categories (except agriculture) for both the 24-hour and annual PM-10 standards and the State's request and supporting documentation, including the most stringent measure analysis (except for agriculture) for an attainment date extension for both standards. EPA's July 25, 2002 final action included approval of these elements of the MAG plan. 2

Under CAA section 189(b)(2), serious area PM-10 plans must provide assurances that BACM will be implemented no later than four years after a moderate PM-10 nonattainment area is reclassified as serious. For the Maricopa County area, the BACM implementation deadline was June 10, 2000. In short, a BACM demonstration starts with the identification of all source categories contributing significantly to nonattainment of the PM-10 NAAQS. Once the significant categories are identified, all potential BACM for these categories must be identified and a reasoned justification must be provided for any BACM that are not implemented. All BACM that are economically and technologically feasible must be implemented. 3

In the case of the Maricopa County area, the MAG plan identified eight significant PM-10 source categories, including on-road motor vehicle and nonroad engines and equipment exhaust. 4 5 In our 2002 approval of the MAG plan, we stated that Arizona had one of the most comprehensive programs for addressing on-road motor vehicle emissions and that the additional measures in the MAG plan would strengthen and go beyond that program. For nonroad engines, EPA stated that Arizona had committed to adopt measures that would strengthen the overall nonroad engine program making it go beyond the existing federal program. 65 FR at 19972-19974; 66 FR at 50258-50260. Strengthening and expanding existing programs are key criteria for demonstrating the implementation of BACM. 59 FR at 42013. EPA noted that CARB diesel was rejected in the MAG plan as a BACM due to high costs, but believed the cost analysis was too uncertain to judge. 65 FR at 19973; 67 FR at 48725. EPA concluded that, overall, the on-road and nonroad measures in the MAG plan constituted BACM for the Maricopa County area without the implementation of CARB diesel. 67 FR at 48725.

As a serious PM-10 nonattainment area, the Maricopa County area was required to attain the annual and 24-hour PM-10 standards by no later than December 31, 2001. CAA section 188(c)(2). However, CAA section 188(e) allows us to extend the attainment date for a serious PM-10 nonattainment area for up to five years if attainment by 2001 is impracticable and certain specified additional conditions are met. Among these conditions is that the State must demonstrate to our satisfaction that its serious area plan includes the most stringent measures that are included in the implementation plan of any state and/or are achieved in practice in any state and are feasible for the area. EPA determined that CARB diesel was not required as a MSM because it did not advance the attainment date. Therefore EPA granted an attainment date extension for the Maricopa County area without it. Id. at 48739.

The Arizona Center for Law in the Public Interest (ACLPI), on behalf of Phoenix area residents, subsequently filed in the U.S. Court of Appeals for the Ninth Circuit a petition for review of EPA's approval of several elements in the MAG plan. As relevant to this proposed rule, ACLPI asserted that EPA's approval was arbitrary and capricious because the plan did not mandate the use of CARB diesel and thus did not satisfy the CAA requirements for BACM and MSM for mobile sources. ACLPI further asserted that we granted an extension of the statutory deadline for attainment to December 31, 2006 based on an inadequate MSM demonstration.

On May 10, 2004, the Court issued its opinion which upheld EPA's final approval in part but remanded to EPA the question of whether CARB diesel must be included in the serious area plan as a BACM and a MSM. Specifically, with respect to whether CARB diesel was appropriately rejected as BACM, the Court stated that “* * * Arizona has offered one explanation, which EPA has declined to ratify, and EPA has not proffered an adequate explanation of its own.” The Court further stated that “[i]n light of our disposition with respect to CARB diesel as a BACM, we remand to EPA for further consideration of whether CARB diesel satisfies MSM as well.” Finally, the Court remanded the question of Maricopa County area's eligibility for an extension of the attainment date to 2006, but only insofar as that question depends on EPA's determination regarding CARB diesel as a MSM. Vigil v. Leavitt, 366 F.3d 1025, amended at 381 F. 3d 826 (9th Cir. 2004).

In response to the Vigil Court's remand, on August 3, 2006, EPA again approved the BACM and MSM demonstrations in the MAG plan for the significant source categories of on-road motor vehicles and nonroad engines and equipment exhaust without CARB diesel and granted the State's request to extend the attainment deadline from 2001 to 2006. 71 FR 43979. In this final action, EPA concluded that CARB diesel is not feasible for on-road motor vehicles because Arizona would not be able to obtain a CAA section 211(c)(4)(C)(i) waiver for purposes of PM-10 attainment. In reaching this conclusion, EPA reasoned that Arizona would not be able to provide a demonstration that CARB diesel is “necessary” to achieve the PM-10 NAAQS, as required by that section, because EPA had already approved the State's demonstration of attainment of the PM-10 NAAQS without relying on CARB diesel. Id. at 43983. Also in this final action, EPA noted that in August 2005, CAA section 211(c)(4)(C) was amended by the Energy Policy Act of 2005 (EPAct), 42 U.S.C. 15801 et seq. , which placed additional restrictions on EPA's authority under that provision. We did not, however, address the effect of the new restrictions on our action because of our conclusion that CARB diesel was not necessary to achieve the NAAQS. Id. at 43980, footnotes 2 and 3.

With respect to nonroad engines and equipment, EPA concluded that CARB diesel is not feasible because of the uncertainties with fuel availability, storage and segregation and concerns about program effectiveness due to owners and operators fueling outside the Maricopa County area. Id.

On March 23, 2007, EPA proposed to find that the Maricopa County area  6 failed to attain the 24-hour PM-10 NAAQS by the December 31, 2006 deadline mandated by the CAA. 72 FR 13723. On May 24, 2007, the Regional Administrator signed a final rule finding that the Maricopa County area failed to attain. 7 As a result, the Agency can no longer rely on its August 3, 2006 conclusion that the State would not be able to obtain a section 211(c)(4)(C)(i) waiver for CARB diesel because it is not necessary for attainment of the PM-10 NAAQS. Thus EPA has reassessed the BACM demonstration for the onroad motor vehicle exhaust source category in light of the new EPAct provisions that it did not previously consider. As discussed further in section III.A. below, EPA has concluded it could not approve a CAA section 211(c)(4)(C)(i) waiver for Arizona for CARB diesel because the effect of such an approval would unlawfully increase the total number of fuels approved into SIPs under section 211(c)(4)(C) as of September 1, 2004. Therefore, EPA is again proposing to approve the BACM demonstration in the MAG plan without CARB diesel.

Because our August 2006 approval of the BACM demonstration for nonroad engines and equipment exhaust relied to some extent on our conclusion with respect to onroad motor vehicle exhaust, we are also proposing again to find that CARB diesel is not required as a BACM for the nonroad category because of the uncertainties with fuel availability, storage and segregation and program effectiveness due to owners and operators fueling outside the Maricopa County area.

Finally, since EPA granted the State's request for an attainment date extension in August 2006, the December 31, 2006 attainment deadline has passed. Therefore the extension request is now moot. However, if CARB diesel had been required as a MSM in order for EPA to grant the extension request, the State would now be required to continue to implement it absent the requisite showing under CAA section 110(1). Therefore EPA is again proposing to approve the MSM demonstration in the MAG plan without CARB diesel. We are also confirming that we appropriately granted Arizona's request for an attainment date extension in our 2002 and 2006 actions.

Section 211(c)(4)(A) of the CAA generally preempts states from prescribing or attempting to enforce controls respecting motor vehicle fuel characteristics or components that EPA has controlled under section 211(c)(1), 8 unless the state control is identical to the Federal control. EPA currently has nationwide regulations prescribing limits on various characteristics and components of motor vehicle diesel fuel (e.g., sulfur content limits, minimum cetane index and limits on aromatic content). 55 FR 34120 (August 21, 1990). Thus Arizona would need to obtain a CAA section 211(c)(4)(C) waiver in order to implement a different requirement governing these characteristics and components of on-road diesel fuel, i.e., CARB diesel, in the Maricopa County area.

Under section 211(c)(4)(C)(i), EPA may waive preemption by approving a non-identical state fuel control as a SIP provision, if the state demonstrates that the measure is necessary to achieve the NAAQS. We may approve a state fuel requirement as “necessary” if no other measures would bring about timely attainment, or if other measures exist and are technically possible to implement but are unreasonable or impracticable.

Section 211(c)(4)(C)(v)(I), added by the EPAct, further restricts EPA's authority to waive preemption by providing that the Agency cannot approve, under section 211(c)(4)(C)(i), any state fuel if the effect of such approval increases the total number of fuels approved into SIPs under section 211(c)(4)(C) as of September 1, 2004. The EPAct required EPA to determine the total number of fuels approved into SIPs under section 211(c)(4)(C) as of September 1, 2004, and to publish the list for public review and comment.

On June 6, 2006, EPA's notice of its draft list was published in the Federal Register . 71 FR 32532. On December 28, 2006, EPA's notice of its final list, known as the Boutique Fuels List, was published in the Federal Register . 71 FR 78192. The final list includes eight types of fuels approved into SIPs under section 211(c)(4)(C) as of September 1, 2004. CARB fuels are approved into California's SIP, but because the approval is not under CAA section 211(c)(4)(C)(i), we did not place CARB fuels on the list of fuel types. 71 FR 78196. Thus, CARB diesel is not one of these eight fuel types. As a result, EPA has no authority to approve, under section 211(c)(4)(C)(i), CARB diesel for on-road motor vehicles in the Maricopa County area because the effect of such approval would be to increase the total number of fuels approved into SIPs under section 211(c)(4)(C) as of September 1, 2004. 9 Thus, the State would not be able to obtain a section 211(c)(4)(C)(i) waiver necessary to implement CARB diesel for on-road motor vehicles. Consequently EPA is again proposing to approve the BACM demonstration for the on-road category in the MAG plan without CARB diesel.

EPA is not changing its assessment in its August 3, 2006 final rule that requiring CARB diesel for the control of nonroad engines and equipment exhaust is not currently feasible and is therefore not required as BACM in the Maricopa County area. Therefore, except as specifically modified below, EPA is relying for this proposed rule on its discussion of Nonroad Engines and Equipment Exhaust in Section II.B(2) of the Agency's July 1, 2005 proposed rule. 70 FR at 38066-38067. We are also relying on our responses to public comments on this issue in Section II.B. of our August 3, 2006 final rule. 71 FR at 43981-43983.

We note one update to the information in footnote 7 of the August 2006 final rule. There are currently six, rather than four, approval letters on the Texas Low Emission Diesel fuel program web site providing for the use of alternative diesel fuel formulations. The second sentence in footnote 7 should now read as follows: “Although Section 114.312(f) provides that alternative diesel fuel formulations must provide comparable or better reductions of NO X and PM, three of the six alternative diesel fuel formulation approval letters to date have cited NO X reductions alone, or (in one case) reductions of NO X and hydrocarbons, but not PM, as the basis for approval.”

In our August 3, 2006 final action, we determined that CARB diesel was not required as a MSM because it did not advance the attainment date. Today's proposed approval of the BACM demonstration in the MAG plan for the on-road and nonroad vehicle exhaust source categories for the Maricopa County area without CARB diesel does not affect that determination. Therefore, we are again proposing to approve the MSM demonstration in the MAG plan. If we again take final action to approve the MSM demonstration, the attainment date extension granted to the Maricopa County area in our August 3, 2006 final action would not be affected.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submission, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context,in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

On April 17, 2007, EPA proposed, under the Clean Air Act, approval of certain revisions to the applicable state implementation plan for the State of Nevada and disapproval of certain other revisions. These revisions involve State rules governing applications for, and issuance of, permits for stationary sources, but not including review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act. These revisions involve submittal of certain new or amended State rules and requests by the State for rescission of certain existing rules from the state implementation plan. The proposed rule divides the SIP revisions into three categories: (1) Separable permit-related rules for which EPA has proposed action on a rule-by-rule basis; (2) submitted rules that comprise the bulk of the permitting program for which EPA has proposed disapproval as a whole; and (3) existing SIP rules for which NDEP has requested rescission and for which EPA has proposed action on a rule-by-rule basis. See tables 1, 2 and 3 in the proposed rule at 72 FR 19144, at 19146-19149 for the lists of affected rules.

The proposed action provided a 60-day public comment period. In response to a request from Leo M. Drozdoff, P.E., Administrator, Nevada Division of Environmental Protection, submitted by letter on May 7, 2007, EPA is extending the comment period for an additional 60 days.

This is a summary of the Commission's Further Notice of Proposed Rulemaking (Further NPRM) in CC Docket No. 96-115 and WC Docket No. 04-36, FCC 07-22, adopted March 13, 2007, and released April 2, 2007. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com . It is also available on the Commission's Web site at http://www.fcc.gov .

Comments may be filed using (1) the Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov . Filers should follow the instructions provided on the Web site for submitting comments.

• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554.

All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties must also send a courtesy copy of their filing to Janice Myles, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, 445 12th Street, SW., Room 5-C140, Washington, DC 20554 or by e-mail to Janice.myles@fcc.gov . Parties should also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Washington, DC 20554 or via e-mail to fcc@bcpiweb.com .

1. In this Further NPRM, the Commission seeks comment on what steps the Commission should take, if any, to secure further the privacy of customer information. The Commission has a duty to ensure that, as technologies evolve, the consumer protection objectives of the Act are maintained. Through this Further NRPM, the Commission seeks comment on whether the Commission should act to expand its CPNI rules further, and whether it should expand the consumer protections to ensure that customer information and CPNI are protected in the context of mobile communication devices.

2. Password Protection . In light of the rules the Commission adopts in the Order (FCC 07-22) and the recent enactment of criminal penalties against pretexters, the Commission seeks comment on whether it should adopt any further carrier requirements to protect CPNI. Specifically, while the Commission limited its rules to password protecting call detail information for customer-initiated telephone contact, it seeks comment on whether to extend these rules to include optional or mandatory password protection for non-call detail CPNI. Should this password protection be for all non-call detail CPNI or should it only include certain account changes? Further, if the Commission were to adopt password protection for certain account changes, what should that include (e.g., changes in the address of record, account plans, or billing methods)? Would requiring these forms of password protection place an undue burden on carriers, customers, or others, including any burdens placed on small carriers? The Commission solicits further comment on any other modifications to its rules that the Commission should adopt in light of pretexting activity, and a carrier's duty to protect CPNI.

3. Audit Trails . While the Commission does not adopt rules requiring audit trails at this time, in light of its new rules and the recent enactment of criminal penalties against pretexters, the Commission seeks comment on whether it should adopt rules pertinent to audit trails. Are audit trails generally used by carriers to track customer contact? The Commission asks carriers to assess the benefits and burdens, including the burdens on small carriers, of recording the disclosure of CPNI and customer contact. The Commission's current record indicates that the broad use of audit trails likely would be of limited value in ending pretexting because such a log would record enormous amounts of data, the vast majority of it being legitimate customer inquiry. Commenters also report that implementing and maintaining audit trails would be costly with little to no corresponding benefit to the consumer. However, would an audit trail assist law enforcement with its criminal investigations against pretexters? Further, in the interim period since the Commission sought comment on this issue, have carriers' reactions to audit trails changed or has the technology changed such that audit trails are now an economically feasible option?

4. Physical Safeguards . The Commission also seeks comment on whether the Commission, in light of the rules it adopts in its Order (FCC 07-22) and the recent enactment of criminal penalties against pretexters, should adopt rules that govern the physical transfer of CPNI among companies, such as between a carrier and its affiliates, or the transfer of CPNI to any other third party authorized to access or maintain CPNI, including a carrier's joint venture partners and independent contractors. Specifically, the Commission seeks comment on what physical safeguards carriers currently are using when they transfer, or allow access to, CPNI to ensure that they maintain the security and confidentiality of CPNI? The Commission also seeks comment on whether these safeguards for the physical transfer of, or for access to, CPNI are sufficient? Further, the Commission seeks comment on what steps it should require of a carrier to protect CPNI when CPNI is being transferred or accessed by the carrier, its affiliates, or its third parties (e.g., encryption, audit trails, logs, etc.). Additionally, the Commission seeks comment on the benefits and burdens, including the burdens on small carriers, of requiring carriers to physically safeguard the security and confidentiality of CPNI.

5. Limiting Data Retention . The Commission also seeks comment on whether the Commission, in light of the rules it adopts in its Order (FCC 07-22) and the recent enactment of criminal penalties against pretexters, should adopt rules that require carriers to limit data retention. If the Commission did adopt such a rule, what should be the maximum amount of time that a carrier should be able to retain customer records? Additionally, should all customer records be eliminated or is there a subset of customer records that are more susceptible to abuse and should be destroyed? Also, should the Commission define exceptions where a carrier is permitted to retain certain records (e.g., for the length of carrier-carrier or carrier-customer disputes)? The Department of Justice argues that destruction of CPNI after a specified period would hamper law enforcement efforts by destroying data sometimes needed for criminal and other lawful investigations. The Commission also seeks comment on whether there are any state or Commission data retention requirements that might conflict with a carrier's data limitation. Additionally, does a limitation on data retention enhance protection of CPNI? Alternatively, should the Commission require carriers to de-identify customer records after a certain period? The Commission seeks comment on the benefits and burdens, including the burdens on small carriers, of requiring carriers to limit their data retention or to de-identify customer records.

6. The Commission seeks comment on what steps it should take, if any, to secure the privacy of customer information stored in mobile communications devices. Specifically, the Commission seeks comment on what methods carriers currently use, if any, for erasing customer information on mobile equipment prior to refurbishing the equipment, and the extent to which carriers enable customers to permanently erase their personal information prior to discarding the device. The Commission also seeks comment on whether it should require carriers to permanently erase, or allow customers to permanently erase, customer information in such circumstances. Should the Commission require manufacturers to configure wireless devices so consumers can easily and permanently delete personal information from those devices? Further, the Commission seeks comment on the burdens, including those placed on small carriers, associated with a Commission rule requiring carriers and manufacturers to fully expunge existing customer data from a mobile device at the customer's request.

7. This Further NPRM contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invited the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this Further NPRM, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Public and agency comments are due August 7, 2007. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

8. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared the present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities that might result from this Further NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Further NPRM provided above. The Commission will send a copy of the Further NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Further NPRM and the IRFA (or summaries thereof) will be published in the Federal Register .

9. In the Further NPRM, the Commission seeks comment on what steps the Commission should take, if any, to expand its CPNI rules further, and whether it should expand the consumer protections to ensure that customer information and CPNI are protected in the context of mobile communications devices. In particular, the Commission seeks comment on whether it should adopt any further carrier requirements to protect CPNI, including password protection, audit trails, physical security, and limits on data retention. Further, the Commission seeks comment on what methods carriers currently use, if any, for erasing customer information on mobile equipment prior to refurbishing the equipment, and the extent to which carriers enable customers to permanently erase their personal information prior to discarding the device. The Commission also seeks comment on whether it should require carriers or manufacturers to permanently erase, or allow customers to permanently erase, customer information in such circumstances. For each of these issues, the Commission seeks comment on the burdens, including those placed on small carriers, associated with corresponding Commission rules related to each issue.

10. The legal basis for any action that may be taken pursuant to this Further NPRM is contained in sections 1, 4(i), 4(j), and 222 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 222.

11. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

12. Small Businesses . Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data.

13. Small Organizations . Nationwide, there are approximately 1.6 million small organizations.

14. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

15. The Commission has included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent local exchange carriers in this RFA analysis, although the Commission emphasizes that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

16. Incumbent Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by its action.

17. Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by its action.

18. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 143 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 141 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by its action.

19. Toll Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 770 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 747 have 1,500 or fewer employees and 23 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by its action.

20. Payphone Service Providers (PSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 613 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 609 have 1,500 or fewer employees and four have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by its action.

21. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 316 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 292 have 1,500 or fewer employees and 24 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by its action.

22. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 20 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by its action.

23. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 89 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, 88 are estimated to have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that all or the majority of prepaid calling card providers are small entities that may be affected by its action.

24. 800 and 800-Like Service Subscribers. Neither the Commission nor the SBA has developed a small business size standard specifically for 800 and 800-like service (“toll free”) subscribers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. The most reliable source of information regarding the number of these service subscribers appears to be data the Commission collects on the 800, 888, and 877 numbers in use. According to the Commission's data, at the end of January, 1999, the number of 800 numbers assigned was 7,692,955; the number of 888 numbers assigned was 7,706,393; and the number of 877 numbers assigned was 1,946,538. The Commission does not have data specifying the number of these subscribers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small businesses under the SBA size standard. Consequently, the Commission estimates that there are 7,692,955 or fewer small entity 800 subscribers; 7,706,393 or fewer small entity 888 subscribers; and 1,946,538 or fewer small entity 877 subscribers.

25. The Commission has not developed a small business size standard specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $12.5 million or less in average annual receipts.

26. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by its action.

27. The second category of Other Telecommunications “comprises establishments primarily engaged in (1) providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or (2) providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Other Telecommunications firms are small entities that might be affected by its action.

28. Below, for those services subject to auctions, the Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

29. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small.

30. Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the great majority of firms can be considered small. Also, according to Commission data, 437 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio (SMR) Telephony services, which are placed together in the data. The Commission has estimated that 260 of these are small, under the SBA small business size standard.

31. Common Carrier Paging. The SBA has developed a small business size standard for wireless firms within the broad economic census category, “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. In the Paging Third Report and Order, the Commission developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small business size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. Also, according to Commission data, 375 carriers reported that they were engaged in the provision of paging and messaging services. Of those, the Commission estimates that 370 are small, under the SBA-approved small business size standard.

32. Wireless Telephony. Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio (SMR) telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 445 carriers reported that they were engaged in the provision of wireless telephony. The Commission has estimated that 245 of these are small under the SBA small business size standard.

33. Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.” These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant.

34. Narrowband Personal Communications Services. To date, two auctions of narrowband personal communications services (PCS) licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order . A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas (MTAs) and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future auctions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined. The Commission assumes, for purposes of this analysis that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules.

35. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e. , an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein.

36. Air-Ground Radiotelephone Service. The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. The Commission will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e. , an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small under the SBA small business size standard.

37. Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. The Commission is unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.

38. Cable and Other Program Distribution. This category includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems, and subscription television services. The SBA has developed small business size standard for this census category, which includes all such companies generating $12.5 million or less in revenue annually. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Consequently, the Commission estimates that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein.

39. Cable System Operators. The Commission has developed its own small business size standards for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. In addition, a “small system” is a system serving 15,000 or fewer subscribers.

40. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are approximately 67,700,000 subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,450. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore is unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act of 1934.

41. Open Video Services. Open Video Service (OVS) systems provide subscription services. The SBA has created a small business size standard for Cable and Other Program Distribution. This standard provides that a small entity is one with $12.5 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, and some of these are currently providing service. Affiliates of Residential Communications Network, Inc. (RCN) received approval to operate OVS systems in New York City, Boston, Washington, DC., and other areas. RCN has sufficient revenues to assure that they do not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to 24 OVS operators (those remaining) might qualify as small businesses that may be affected by the rules and policies adopted herein.

42. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and 47 firms had receipts of $10 million or more but less then $25 million. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.

43. All Other Information Services. “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” The SBA has developed a small business size standard for this category; that size standard is $6 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.

44. Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. Examples of products in this category include “transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment” and may include other devices that transmit and receive IP-enabled services, such as personal digital assistants (PDAs). Under the SBA size standard, firms are considered small if they have 750 or fewer employees. According to Census Bureau data for 1997, there were 1,215 establishments in this category that operated for the entire year. Of those, there were 1,150 that had employment of under 500, and an additional 37 that had employment of 500 to 999. The percentage of wireless equipment manufacturers in this category was approximately 61.35%, so the Commission estimates that the number of wireless equipment manufacturers with employment of under 500 was actually closer to 706, with and additional 23 establishments having employment of between 500 and 999. Consequently, the Commission estimates that the majority of wireless communications equipment manufacturers are small entities that may be affected by its action.

45. Telephone Apparatus Manufacturing. This category “comprises establishments primarily engaged primarily in manufacturing wire telephone and data communications equipment.” Examples of pertinent products are “central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, and data communications equipment, such as bridges, routers, and gateways.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 598 establishments in this category that operated for the entire year. Of these, 574 had employment of under 1,000, and an additional 17 establishments had employment of 1,000 to 2,499. Consequently, the Commission estimates that the majority of these establishments are small entities that may be affected by its action.

46. Semiconductor and Related Device Manufacturing. These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 1,082 establishments in this category that operated for the entire year. Of these, 987 had employment of under 500, and 52 establishments had employment of 500 to 999.

47. Computer Storage Device Manufacturing. These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 209 establishments in this category that operated for the entire year. Of these, 197 had employment of under 500, and eight establishments had employment of 500 to 999.

48. Should the Commission decide to adopt any further regulations to ensure that all providers of telecommunication services meet consumer protection needs in regard to CPNI, including the security of the privacy of customer information stored in mobile communications devices, the associated rules potentially could modify the reporting and recordkeeping requirements of certain telecommunications providers. The Commission could, for instance, require that telecommunications providers require further customer password-related security procedures to access CPNI data. The Commission could also require telecommunications providers to track customer contact through the use of audit trails or to limit their retention of data related to CPNI. Additionally, the Commission could require additional physical safeguards be implemented to protect the transfer of CPNI. Further, the Commission could require telecommunications providers and/or manufacturers to configure wireless devices so consumers can easily and permanently delete personal information from mobile communications devices. These proposals may impose additional reporting and recordkeeping requirements on entities. Also, the Commission seeks comment on whether any of these proposals places burdens on small entities. Entities, especially small businesses, are encouraged to quantify the costs and benefits or any reporting requirement that may be established in this proceeding.

49. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

50. The Commission's primary objective is to secure the privacy of customer information collected by telecommunications carriers and stored in mobile communications devices. The Commission seeks comment on the burdens, including those placed on small carriers, associated with related Commission rules and whether the Commission should adopt different requirements for small businesses.

51. None.

52. Accordingly, IT IS ORDERED that pursuant to sections 1, 4(i), 4(j), 222, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 222, 303(r), this Report and Order and Further Notice of Proposed Rulemaking in CC Docket No. 96-115 and WC Docket No. 04-36 IS ADOPTED, and that Part 64 of the Commission's rules, 47 CFR part 64, is amended as set forth in Appendix B. The Order shall become effective upon publication in the Federal Register subject to OMB approval for new information collection requirements or six months after the Order's effective date, whichever is later.

53. It Is Further Ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, Shall Send a copy of this Report and Order and Further Notice of Proposed Rulemaking, including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

On April 11, 2007, we published in the Federal Register (72 FR 18328) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and dealt with the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. This document is the second in a series of proposed, supplemental, and final rules for migratory game bird hunting regulations. We will publish proposed early-season frameworks in early July and late-season frameworks in early August. We will publish final regulatory frameworks for early seasons on or about August 17, 2007, and for late seasons on or about September 14, 2007.

The Service Migratory Bird Regulations Committee will meet June 20-21, 2007, to review information on the current status of migratory shore and upland game birds and develop 2007-08 migratory game bird regulations recommendations for these species, plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands. The Committee will also develop regulations recommendations for September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, the Committee will review and discuss preliminary information on the status of waterfowl.

At the August 1-2, 2007, meetings, the Committee will review information on the current status of waterfowl and develop 2007-08 migratory game bird regulations recommendations for regular waterfowl seasons and other species and seasons not previously discussed at the early-season meetings. In addition, the Committee will develop recommendations for the 2008 spring/summer migratory bird subsistence season in Alaska. In accordance with Departmental policy, these meetings are open to public observation. You may submit written comments to the Service on the matters discussed.

Service representatives will be present at the individual meetings of the four Flyway Councils this July. Although agendas are not yet available, these meetings usually commence at 8 a.m. on the days indicated.

Atlantic Flyway Council: July 26-27, Sheraton Harborside Hotel, Portsmouth, NH.

Mississippi Flyway Council: July 28-29, Sawmill Creek Resort, Huron, OH.

Central Flyway Council: July 26-27, Holiday Inn of the Northern Black Hills, Spearfish, SD.

Pacific Flyway Council: July 27, Red Lion Hotel at the Park, Spokane, WA.

This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the April 11, 2007, Federal Register . We have included only those recommendations requiring either new proposals or substantial modification of the preliminary proposals and do not include recommendations that simply support or oppose preliminary proposals and provide no recommended alternatives. We will publish responses to all proposals and written comments when we develop final frameworks. In addition, this supplemental rulemaking contains the regulatory alternatives for the 2007-08 duck hunting seasons. We have included all Flyway Council recommendations received relating to the development of these alternatives.

We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items identified in the April 11 proposed rule. Only those categories requiring your attention or for which we received Flyway Council recommendations are discussed below.

Duck harvest management categories are: (A) General Harvest Strategy; (B) Regulatory Alternatives, including specification of framework dates, season length, and bag limits; (C) Zones and Split Seasons; and (D) Special Seasons/Species Management.

Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that regulations changes be restricted to one step per year, both when restricting as well as liberalizing hunting regulations.

The Pacific Flyway Council recommended that the proposal developed by the Service for a revised protocol for managing the harvest of mallards in Western North America be implemented in 2008. The Council stated that this delay is needed to fully understand and pick a management objective, to incorporate explicit consideration of mallards derived from those portions of Alberta that contribute mallards to the Pacific Flyway, to determine how this strategy relates to Alaska's early season regulations, and to investigate the addition of alternative models.

Service Response: As we stated in the April 11 Federal Register , the final Adaptive Harvest Management protocol for the 2007-08 season will be detailed in the early-season proposed rule, which will be published in July.

Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council and the Central Flyway Council recommended that regulatory alternatives for duck hunting seasons remain the same as those used in 2006.

Public Comments: The Wisconsin Department of Natural resources recommended that regulatory alternatives for duck hunting seasons remain the same as those used in 2006.

Service Response: Last year in the May 30, 2006, Federal Register (71 FR 30786), we discussed the March 11, 2005, Adaptive Harvest Management (AHM) Task Force draft final report ( http://www.fws.gov/migratorybirds/mgmt/ahm/taskforce/taskforce.htm ) to the IAFWA Executive Committee concerning the future development and direction of AHM. The Task Force endeavored to develop a strategic approach that was comprehensive and integrative, that recognized the diverse perspectives and desires of stakeholders, that was consistent with resource monitoring and assessment capabilities, and that hopefully could be embraced by all four Flyways Councils. We stated then, and reiterate here, that we appreciate the extensive discussion the report has received and look forward to continuing dialogue concerning the future strategic course for AHM.

One of the most widely debated issues continues to be the nature of the regulatory alternatives. The Task Force recommended a simpler and more conservative approach than is reflected in the regulatory alternatives used since 1997, which are essentially those we proposed for the 2007-08 hunting season (April 11 Federal Register ). As yet, however, no consensus has emerged among the Flyway Councils concerning modifications to the regulatory alternatives, nor is such consensus expected in time to select a regulatory alternative for the 2007-08 hunting season.

Therefore, the regulatory alternatives proposed in the April 11 Federal Register will be used for the 2007-08 hunting season. In 2005, the AHM regulatory alternatives were modified to consist only of the maximum season lengths, framework dates, and bag limits for total ducks and mallards. Restrictions for certain species within these frameworks that are not covered by existing harvest strategies will be addressed during the late-season regulations process. For those species with existing harvest strategies (canvasbacks and pintails), those strategies to be used for the 2007-08 hunting season.

Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council endorsed the draft International Harvest Strategy for Black Ducks developed by the Black Duck AHM Working Group until such time that a full AHM model is available and requested a dialogue with the Service on options for implementing harvest restrictions, assuming harvest restrictions are warranted.

Council Recommendations: The Pacific Flyway Council recommended that the proposal developed by the Service for the addition of a compensatory model for Northern Pintail harvest management be incorporated in 2007 and that work continue on improving the harvest management decision-making process for pintail. Additionally, the Council urged the Service to complete its banding needs assessment and to work with the Flyways and the Canadian Wildlife Service to improve the basic biological data to more fully inform decision making.

Council Recommendations: The Central Flyway Council recommended not implementing a scaup harvest strategy that uses an objective function based on Maximum Sustained Yield (MSY). They suggested that scaup regulatory alternatives for the Central Flyway in 2009 be based on the most recent 3-year running mean of the May Breeding Population estimates (BPOP) as follows:

a. BPOP mean > 4.0 million, daily bag limit of 3.

b. BPOP mean 3.25—4.0 million, daily bag limit of 2.

c. BPOP mean 2.5—3.25 million, daily bag limit of 1.

d. BPOP mean < 2.5 million, Hunter's Choice or 1-bird daily bag limit with a season-within-a-season.

The Pacific Flyway Council was supportive of the proposed approach outlined in the recently proposed Service assessment and decision-making framework to inform scaup harvest management, and endorsed a shoulder strategy of less than Maximum Sustained Yield (MSY). In developing regulation packages to implement the framework, the Council further requested recognition of flyway differences in scaup populations and harvest potential.

Service Response: In 2006, we did not change scaup harvest regulations with the understanding that a draft harvest strategy would be available for Flyway Council review prior to the 2007 winter meetings (see September 22, 2007, Federal Register , 71 FR 55654) and be in place to guide development of scaup hunting regulations in 2007. As part of this effort, we developed an assessment framework that uses available data to help predict the effects of harvest and other uncontrollable environmental factors on the scaup population. The final assessment was presented during the Winter Flyway Technical Section meetings, made available to the public in the April 11 Federal Register , and has been subject to both extensive and rigorous peer review. That peer review has resulted in many improvements in the assessment, and we believe it now represents an objective, efficient, and comprehensive synthesis of data relevant to scaup harvest management. Also, we have now completed additional work that we believe can help frame a viable scaup harvest strategy. The most recent technical analysis focuses on predicting scaup harvest from various combinations of Flyway-specific season lengths and bag limits, and this analysis has been appended to the assessment report previously available ( http://www.fws.gov/reports ).

We have received a number of comments from the Flyway Councils, States, and other interested publics on the assessment. As we indicated in the April 11 proposed rule, the final scaup harvest strategy will be detailed in the July early-season proposed rule (see Schedule of Regulations Meetings and Federal Register Publications in the April 11 Federal Register for further information). Of immediate concern, however, is the Flyway Councils' review of our most recent assessment. We urge the Flyway Councils to evaluate our latest assessments.

Council Recommendations: The Central Flyway Council recommended that the Service take no action with respect to further harvest reduction for West Gulf Coast mottled ducks until there is a better understanding of population dynamics and until implications of the Central Flyway's Hunter's Choice evaluation have been reviewed.

Council Recommendations: The Atlantic Flyway Council made several recommendations dealing with early Canada goose seasons. First, the Council recommended that the Service allow the use of special regulations (electronic calls, unplugged guns, extended hunting hours) later than September 15 during existing September Canada goose hunting seasons in Atlantic Flyway States. Use of these special regulations would be limited to the geographic areas of States that were open to hunting and under existing September season ending dates as approved by the Service for the 2007 regulation cycle. Lastly, the Council recommended allowing the experimental seasons in portions of Florida, Georgia, New York, North Carolina, South Carolina, and Vermont to become operational in 2007.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the closing dates for Canada goose hunting during the September goose season in the Northwest goose zone of Minnesota be extended through September 22 to coincide with the remainder of the state with a waiver of the experimental season requirements of collecting Canada goose parts.

Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the framework opening date for all species of geese for the regular goose seasons in Michigan and Wisconsin be September 16, 2007.

Council Recommendations: The Central Flyway Council recommended using the 2007 Rocky Mountain Population sandhill crane harvest allocation of 1,321 birds as proposed in the allocation formula using the 2004-06 3-year running average.

The Pacific Flyway Council recommended initiating a limited hunt for Lower Colorado River sandhill cranes in Arizona, with the goal of the hunt being a limited harvest of 5 cranes in January. To limit harvest, Arizona would issue permit tags to hunters and require mandatory check of all harvested cranes. To limit disturbance of wintering cranes, Arizona would restrict the hunt to one 3-day period. Arizona would also coordinate with the National Wildlife Refuges where cranes occur.

Council Recommendations: The Atlantic Flyway Council recommended allowing compensatory days for woodcock hunting in States where Sunday hunting is prohibited by State law.

Council Recommendations: The Atlantic Flyway Council and the Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that, based on criteria set forth in the current version of the Mourning Dove Harvest Management Strategy for the Eastern Management Unit (EMU), no changes in bag limit and season length components of the mourning dove harvest framework are warranted. They both further recommended that EMU States should be offered the choice of either a 12-bird daily bag limit and 70-day season or a 15-bird daily bag limit and 60-day season for the 2007-08 mourning dove hunting season, with a standardized 15-bird daily bag limit and 70-day season beginning with the 2008-09 mourning dove hunting season. The standardized bag limit and season length will then be used as the “moderate” harvest option for revising the Initial Mourning Dove Harvest Management Strategy.

Council Recommendations: The Pacific Flyway Council recommended maintaining status quo in the Alaska early-season framework, except for increasing the dark goose daily bag limit in selected units to provide more harvest opportunity for white-fronted geese.

The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals. We invite interested persons to participate in this rulemaking by submitting written comments to the address indicated under the caption ADDRESSES. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

You may inspect comments received on the proposed annual regulations during normal business hours at the Service's Division of Migratory Bird Management office in room 4107, 4501 North Fairfax Drive, Arlington, VA, 22203. For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date in any final rules.

NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published a notice of availability in the Federal Register on June 16, 1988 (53 FR 22582). We published our Record of Decision on August 18, 1988 (53 FR 31341). In addition, an August 1985 environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian Reservations and Ceded Lands” is available (see ADDRESSES ).

In a notice published in the September 8, 2005, Federal Register (70 FR 53376), we announced our intent to develop a new Supplemental Environmental Impact Statement for the migratory bird hunting program. Public scoping meetings were held in the spring of 2006, as detailed in a March 9, 2006, Federal Register (71 FR 12216). A scoping report summarizing the scoping comments and scoping meetings is available by either writing to the address indicated under ADDRESSES or by viewing on our Web site at http://www.fws.gov/migratorybirds.

Prior to issuance of the 2007-08 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter, the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened, or modify or destroy its critical habitat, and is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change proposals in this and future supplemental rulemaking documents.

The migratory bird hunting regulations are economically significant and were reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. As such, a cost/benefit analysis was initially prepared in 1981. This analysis was subsequently revised annually from 1990 through 1996, updated in 1998, and updated again in 2004. It is further discussed below under the heading Regulatory Flexibility Act. Results from the 2004 analysis indicate that the expected welfare benefit of the annual migratory bird hunting frameworks is on the order of $734 to $1,064 million, with a midpoint estimate of $899 million. Copies of the cost/benefit analysis are available upon request from the address indicated under ADDRESSES or from our Web site at http://www.fws.gov/migratorybirds/reports/SpecialTopics/EconomicAnalysis-Final-2004.pdf.

Executive Order 12866 also requires each agency to write regulations that are easy to understand. We invite comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more sections? (5) Is the description of the rule in the Supplementary Information section of the preamble helpful in understanding the rule? (6) What else could we do to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240, or e-mail to Exsec@ios.doi.gov.

These regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). We analyzed the economic impacts of the annual hunting regulations on small business entities in detail as part of the 1981 cost-benefit analysis discussed under Executive Order 12866. This analysis was revised annually from 1990 through 1995. In 1995, the Service issued a Small Entity Flexibility Analysis (Analysis), which was subsequently updated in 1996, 1998, and 2004. The primary source of information about hunter expenditures for migratory game bird hunting is the National Hunting and Fishing Survey, which is conducted at 5-year intervals. The 2004 Analysis was based on the 2001 National Hunting and Fishing Survey and the U.S. Department of Commerce's County Business Patterns, from which it was estimated that migratory bird hunters would spend between $481 million and $1.2 billion at small businesses in 2004. Copies of the Analysis are available upon request from the address indicated under ADDRESSES or from our Web site at htttp://www.fws.gov/migratorybirds/reports/SpecialTopics/EconomicAnalysis-Final-2004.pdf.

This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808 (1).

We examined these regulations under the Paperwork Reduction Act of 1995. The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of the surveys associated with the Migratory Bird Harvest Information Program and assigned clearance number 1018-0015 (expires 2/29/2008). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Sandhill Crane Harvest Survey and assigned clearance number 1018-0023 (expires 11/30/2007). The information from this survey is used to estimate the magnitude and the geographical and temporal distribution of the harvest, and the portion it constitutes of the total population. A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Department, in promulgating this proposed rule, has determined that this proposed rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The rules that eventually will be promulgated for the 2007-08 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.