Background

The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of plant pests. The regulations contained in “Subpart—Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict, among other things, the importation of living plants, plant parts, and seeds for propagation.

On December 15, 2005, we published in the Federal Register (70 FR 74215-74235, Docket No. 03-002-1) a proposal  1 to make several amendments to the nursery stock regulations. We solicited comments concerning the proposal for 60 days ending February 13, 2006. We reopened and extended the deadline for comments until March 31, 2006, in a document published in the Federal Register on February 28, 2006 (71 FR 9978, Docket No. 03-002-2). We received 25 comments by that date, from 23 commenters, including private citizens, State and local governments, industry organizations, individual industry companies, and foreign national plant protection organizations. The comments are discussed below by topic.

Two commenters asked how the proposed rule fits into the ongoing revision of the nursery stock regulations, which was first discussed in an advanced notice of proposed rulemaking (ANPR) that was published in the Federal Register on December 10, 2004 (69 FR 71736-71744, Docket No. 03-069-1).

We are continuing with our efforts to revise the nursery stock regulations. As the commenters noted, the revision will take several years to fully implement. We anticipate completing the revision in stages. As we implement the revisions, we will continue to enforce the current regulations. The changes in the proposed rule were designed to address specific issues that have arisen as we continue to enforce the regulations.

One commenter expressed concern about the introduction of invasive species into the United States via the importation of nursery stock and stated that any species of nursery stock being imported into the United States should be studied for 1 year prior to importation. The commenter also suggested that a tax be imposed on the importation of nursery stock to help defray the cost of eradicating invasive species.

As discussed in the December 2004 ANPR, we are considering whether to adopt more restrictive regulations for the importation of nursery stock. We may in the future elect to establish regulations that will allow us to take a precautionary approach to the importation of species that have not been imported before. In response to the commenter's second suggestion, APHIS does not have the authority to impose a tax on the importation of nursery stock; we are only authorized to charge user fees for services we provide.

The definition of from in § 319.37-1 currently provides that an article is considered to be “from” any country or locality in which it was grown. The current regulations also provide that an article imported into Canada from another country or locality shall be considered as being solely “from” Canada if it is imported into the United States directly from Canada after having been grown for at least 1 year in Canada; has never been grown in a country from which it would be a prohibited article or from which it would be subject to special foreign inspection, certification, treatment, or other requirements; was not grown in a country or locality from which it would be subject to postentry quarantine requirements, unless it was grown in Canada under postentry growing conditions equivalent to those specified for the article in § 319.37-7; and was not imported into Canada in growing media.

We proposed to replace this definition with a new definition of from, in order to remove the language that imposed special restrictions on the importation of regulated articles from Canada. The proposed definition of from read: “An article is considered to be “from” an exporting country or area when it was grown or propagated only in the exporting country or area, or when it was grown in the exporting country or area after it entered the exporting country or area from another country or area under conditions that are equivalent to those that would be required by the United States if the plant were imported into the United States directly from any of the countries or areas where the plant was grown prior to its entry into the exporting country or area.”

We received several comments on our proposed definition. Many of these commenters were concerned that the proposed definition might weaken our protections against the importation of potentially risky nursery stock. Three commenters asked us to clarify whether articles prohibited from another country would continue to be prohibited even after importation to a second country, regardless of the time that the articles remained in that country.

Some commenters expressed concern that the proposed definition would be difficult to enforce, since the national plant protection organization (NPPO) of an exporting country would have to keep track of any plant material that entered its country in case it was reexported at some point in the future. Other commenters expressed general concern about whether the restrictions on the importation of nursery stock in general are adequate to prevent the introduction of plant pests, when it can be difficult to determine what pests a plant has been exposed to.

We agree that these commenters have identified significant issues with our proposed definition of from. We are withdrawing that proposed change in this final rule. We will revisit this issue in a separate proposed rule.

We proposed to add a definition of preclearance to § 319.37-1. The definition we proposed to add is consistent with the definition of that term in the International Plant Protection Convention's (IPPC) 2002 Glossary of Phytosanitary Terms (International Standards for Phytosanitary Measures [ISPM] publication number 5). 2 The proposed definition read: “Phytosanitary certification and/or clearance in the country in which the articles were grown, performed by or under the regular supervision of APHIS.” Our intention was to clarify the conditions under which sampling and inspection can take place in the country of origin in a preclearance program.

One commenter supported the expression of our intent to provide regular supervision in preclearance and asked whether the word “regular” meant that APHIS would supervise at set intervals, rather than a random basis.

We have always provided regular supervision of inspection and clearance during preclearance according to the terms of the workplan developed between APHIS and the NPPO of the country of origin of the precleared articles. 3 Typically, the workplan requires APHIS' participation in preclearance activities, either at set intervals or at specific points during the production process for the articles.

Two commenters recommended that preclearance sampling and inspection at the production site be one of the main elements of plant protection employed by APHIS. These commenters stated that this would require a greater commitment to assigning trained personnel to work on location, perhaps stationing APHIS employees permanently at foreign sites of production.

We implement preclearance procedures based on the type of restricted articles being precleared for importation and the level of APHIS involvement we believe is warranted. This may involve, as the commenter suggests, stationing APHIS employees permanently at foreign sites of production or treatment facilities, or sending APHIS personnel to production sites for specific tours of duty to survey and inspect at the appropriate times during the production process. It may also involve APHIS employees consulting with employees of the NPPO of the country of origin regarding standards or requirements for phytosanitary certification. For any preclearance program, the details of APHIS supervision are specified in the workplan developed between APHIS and the NPPO of the country of origin.

One commenter was concerned that the proposed definition would not accommodate a bulb export program currently under development in which bulbs would be produced in certified fields in Germany and Poland, thus meeting the requirements in § 319.37-5(a), and then moved to the Netherlands for processing prior to export. In this program, APHIS inspectors would preclear bulbs in the Netherlands, rather than in the country of origin of the articles being exported.

The program the commenter referred to has not yet been approved by the parties that would participate in it. If the program is approved, we will make any changes to our regulations that may be necessary for its implementation.

We are making one change to our proposed definition of preclearance in this final rule. The proposed definition, taken directly from the IPPC Glossary of Phytosanitary Terms, referred to APHIS providing phytosanitary certification in the country in which an article of nursery stock to be imported is grown. However, under our arrangements with foreign NPPOs, only the foreign NPPO issues phytosanitary certificates; APHIS preclearance officers instead inspect articles to ensure that they meet the requirements of the regulations. Therefore, in this final rule, we have replaced the reference to phytosanitary certification with a reference to phytosanitary inspection.

We proposed to add definitions of two terms to the regulations and to revise the definitions of three other terms to make those definitions consistent with the definitions found in title IV of the Agricultural Risk Protection Act of 2000, known as the Plant Protection Act (7 U.S.C. 7701 et seq. ). One of the terms that we proposed to add to the regulations was plant, which we proposed to define, following the Plant Protection Act, as: “Any plant (including any plant part) for or capable of propagation, including a tree, a tissue culture, a plantlet culture, pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a root, and a seed.”

One commenter recommended that the definition of plant include cell cultures in solution.

The definition includes any plant (including any plant part) for or capable of propagation. This category includes cell cultures in solution, even though cell cultures in solution are not listed as examples of members of the category. (In the definition, the use of the term “includes” indicates that the list is not exhaustive.) We are not changing the proposed definition to include cell cultures in solution as an example because we believe it is important for the regulations to be consistent with the Plant Protection Act.

Because the definition of plant that we proposed to add to the regulations is broader than the scope of the plants we regulate in the nursery stock regulations, we also proposed to add a definition of regulated plant to the regulations that would include only those plants regulated in the nursery stock regulations. This proposed definition read: “Any gymnosperm, angiosperm, fern, or fern ally. Gymnosperms include cycads, conifers, and gingko. Angiosperms include any flowering plant. Fern allies include club moss, horsetail, whisk fern, spike moss, and quillwort.”

One commenter asked why the term “regulated” was used and stated that the proposed definition appeared to be even broader than the proposed definition of plant.

We are using the term “regulated” to make it clear that the scope of plants included in the nursery stock regulations is limited to the plants included in the definition of regulated plant. We believe that the meaning of the term “regulated” is apparent to most readers of the regulations. The definition of regulated plant is narrower in scope than the definition of plant; the former excludes nonvascular plants such as mosses and green algae, to name two examples.

We are making one minor change to the proposed definition of regulated plant in this final rule. To make the last sentence of the definition of regulated plant consistent with the second sentence of the definition, we are making the examples in that sentence plural rather than singular.

We also proposed to revise the definition of plant pest to make it consistent with the definition of that term in the Plant Protection Act. The definition had read: “The egg, pupal, and larval stages as well as any other living stage of: Any insects, mites, nematodes, slugs, snails, protozoa, or other invertebrate animals, bacteria, fungi, other parasitic plants or reproductive parts thereof, viruses, or any organisms similar to or allied with any of the foregoing, or any infectious substances, which can directly or indirectly injure or cause disease or damage in any plants or parts thereof, or any processed, manufactured, or other products of plants.” We proposed to revise it to read: “Any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: A protozoan, a nonhuman animal, a parasitic plant, a bacterium, a fungus, a virus or viroid, an infectious agent or other pathogen, or any article similar to or allied with any of these articles.”

One commenter noted that the proposed definition, which included nonhuman animals, was broader in scope than the previous definition, which only included invertebrate animals.

Again, our intention in revising the definition of plant pest was to make that definition consistent with the definition of that term in the Plant Protection Act. We have no intention of broadening the scope of the pests we regulate or issue permits for at this time.

We are making one other minor change to the Plant Protection Act-derived definitions we proposed. Like the current definition of regulated article, the definition of regulated article in the December 2005 proposed rule began: “Any class of nursery stock or other regulated plant, root, bulb, seed, or other plant product * * *” The words “class of nursery stock or other” are redundant, and we are removing them in this final rule.

We proposed to remove several restrictions on plants in vitro. The IPPC's 2002 Glossary of Phytosanitary Terms defines plants in vitro as “plants in an aseptic medium in a closed container.” Specifically:

• We proposed to amend § 319.37-3(a)(5) of the regulations to exempt shipments of plants in vitro from the requirement that lots of 13 or more articles offered for importation into the United States must be accompanied by a written permit issued by a Plant Protection and Quarantine (PPQ) inspector. This exemption would not apply if importation of the plants is restricted or prohibited elsewhere in the nursery stock regulations. This would also mean that plants in vitro could enter the United States at any port of entry authorized in 7 CFR part 330 for articles not required to be imported under a written permit.

• We also proposed to amend § 319.37-4(a) of the regulations to exempt plants in vitro from the requirement that restricted articles offered for importation into the United States be accompanied by a phytosanitary certificate from the country of origin, unless their importation is restricted or prohibited elsewhere in the nursery stock regulations. These changes would make plants in vitro whose importation is not otherwise restricted or prohibited generally admissible into the United States.

To accomplish these changes, we proposed to add a definition of plants in vitro to the regulations in § 319.37-1. The proposed definition was identical to the IPPC definition quoted above.

Six commenters recommended that we not proceed with these proposed changes. The commenters focused on the fact that plants in vitro pose an extremely low risk only if they are produced from plants that have been determined to be free of plant pests and carefully monitored throughout the production process to ensure their continued freedom from plant pests. Along these lines, one commenter stated that some fastidious and cryptic organisms can survive the process if the source plant is infected. The commenter cited Odontoglossum ring spot virus and Cymbidium mosaic virus in orchids as good examples. This commenter further stated that the fact that a plant is growing in aseptic conditions does not imply that it is free of foliar nematodes. Other commenters noted that the proposed regulations placed no conditions on the importation of plants in vitro other than being imported in an aseptic medium; under the proposed regulations, there would be no way to verify that the proper production practices had been followed, or to trace the plants back to their production site if they proved to be affected by plant pests. Two commenters stated that plants in vitro should be generally admissible, but only if they are produced in accordance with a general clean stock program, as described in the December 2004 ANPR.

Based on these comments, we are withdrawing the proposed changes that would have made plants in vitro generally admissible. They will continue to be subject to the permit and phytosanitary certificate requirements. We agree with the commenters who stated that plants in vitro produced in a program designed to ensure pest freedom would pose an extremely low risk of introducing a quarantine pest into the United States. We are considering developing such a program and adding it to the regulations. However, in order to verify that producers of plants in vitro comply with the requirements of such a program, we would need to require that articles produced in such a program be accompanied by a phytosanitary certificate.

One commenter recommended that APHIS allow the importation of plants in vitro even if the importation of their genus or species is otherwise prohibited.

This may be possible if the plants are produced in accordance with a program of the type described above. We will consider this issue as part of our deliberation on whether to develop such a program.

In a related matter, we proposed to amend § 319.37-8(c) of the regulations, which had stated: “A restricted article growing solely in agar or in other transparent or translucent tissue culture medium may be imported established in such growing media.” We proposed to remove the requirement that the growing medium be transparent or translucent in order to allow the use of charcoal in the growing medium. Charcoal is commonly used by importers of plants in vitro as a detoxifying agent; if it is used as an additive in growing media, it will still be easy to determine whether the growing media meets the aseptic standard prescribed in the definition of plants in vitro, because any bacteria in the growing media would quickly reproduce and form a large mass. Therefore, we proposed to revise this paragraph to read: “Plants in vitro may be imported in their growing media.”

Two commenters specifically addressed this issue, noting that our statement that bacteria in media would “quickly reproduce and form a large mass” assumes that the growing requirements in the regulations related to plant-associated bacteria are met when plants are produced in in vitro media. The commenters stated that this is not the case.

The regulations do not contain any general requirements for plants produced in in vitro media. The previous requirement was intended to aid inspection of plants grown and imported in their growing media. If we become aware of any specific risks related to the importation of certain plants in growing media, we will amend the regulations accordingly to address those specific risks. However, as a general requirement, we believe the use of growing media with a charcoal additive will still allow for effective inspection of the growing media upon importation, for the reasons stated in the proposed rule. We are making no changes to the proposed rule in response to this comment.

Because we are not adding a definition of plants in vitro to the regulations at this time, we need to revise our proposed wording. This final rule therefore modifies paragraph (c) of § 319.37-8 to read: “ A restricted article growing solely in agar or in other tissue culture medium may be imported established in such growing media.”

The regulations in § 319.37-4(a) currently require that any restricted article offered for importation into the United States be accompanied by a phytosanitary certificate of inspection, with certain exceptions. We proposed to additionally require that the phytosanitary certificate include the genus and species name of the restricted article that it accompanies.

Several commenters stated that the proposed requirement did not make any allowance for plants gathered on plant exploration research expeditions, where species data may not be available; unnamed, recently discovered species; or interspecific or intergeneric hybrids, including naturally occurring seedlings from unknown parents. One of these commenters suggested that instead we use the language in the IPPC's ISPM No. 12, “Guidelines for Phytosanitary Certificates,” which recommends that plants and plant products be identified on a phytosanitary certificate using accepted scientific names, at least to genus level but preferably to the species level. Another commenter suggested allowing the cultivar name of a plant to be provided as an alternative to the species name. One commenter suggested establishing a system through which plants whose taxonomic information was unknown could be imported under permit, with monitoring of the destination and disposal of the material.

Other commenters opposed the change entirely. Two commenters asked why it was necessary to require species information to be listed in cases when our restrictions are applied at the genus level. Two other commenters stated that many genera of certain plant types can have dozens of species. These commenters expressed concern that the need for NPPO inspection staff to verify all plants in a consignment to the species level will cause unnecessary delays in the inspection and consequently the shipping process and will detract from the inspector's primary objective to detect and identify diseases and insect pests. One of these commenters also expressed concern that use of the species name might cause identification errors that could result in delays when restricted articles are offered for importation. The commenters requested that the proposal be amended to require that only those species that have special requirements or are regulated by the Convention of International Trade in Endangered Species should be identified on the phytosanitary certificates by both genus and species.

We agree with the commenters who stated that we need to provide for situations in which the species name is not known, and we understand the burden that listing species names can impose. However, some requirements in the regulations place restrictions on specific species or cultivars within a genus; for example, the regulations in § 319.37-5(b) restrict the importation of certain species within the genus Prunus based on whether they are immune to plum pox virus, and the regulations in § 319.37-2(a) prohibit the importation of Berberis spp. except for species and cultivars that have been designated as resistant to black stem rust. Inspectors enforcing such regulations need to be able to quickly distinguish what species or cultivar is being offered for importation in order to determine whether the plants meet the requirements in the regulations.

To ensure that inspectors have the information they need while accommodating the need for exceptions when species data are not available, we have changed the proposed requirement in this final rule. Instead of requiring that the genus and species name of a restricted article offered for importation be included on the phytosanitary certificate accompanying that article, this final rule requires that, when the regulations place restrictions on individual species or cultivars within a genus, the phytosanitary certificate must also identify the species or cultivar of the article it accompanies. Otherwise, identification of the species is strongly preferred, but not required. In cases in which species is not known, the phytosanitary certificate may identify the cultivar name of the restricted article it accompanies, except where the regulations place restrictions on individual species.

Further, we are requiring that intergeneric and interspecific hybrids be designated by placing the multiplication sign “×” between the names of the parent taxa. If the hybrid is named, the multiplication sign may instead be placed before the name of an intergeneric hybrid or before the epithet in the name of an interspecific hybrid.

We are not making an exception in the phytosanitary certificate regulations for unnamed or unknown articles, as the information we have indicates that they have been imported extremely infrequently. Persons wishing to import unnamed or unknown articles into the United States are encouraged to contact PPQ's Permit Unit for information about importing such articles through a departmental permit. This would allow the unnamed or unknown articles to be imported for identification or research purposes, similar to the conditions described by one of the commenters.

The regulations in this final rule indicate that we strongly prefer that species be listed on the phytosanitary certificate, even when listing species is not required. We continue to request this information for data-gathering purposes. We need to know the number, size, and volume of imports of nursery stock in order to better assess what overall risks presented by plants for planting need to be better addressed. This effort is part of the Q-37 revision mentioned earlier in this document. In addition, requesting that species information be entered where known is consistent with IPPC guidelines, as discussed earlier.

In discussing this change, the preamble of the proposed rule stated that “having the genus and species name available would allow inspectors to easily identify restricted articles presented for importation and thus better assess any risks that may be associated with their importation.” One commenter stated that a risk assessment should be performed prior to importation of the articles in question, unless it is meant to give the individual inspector a management tool to make a selection of the products presented for importation.

As the commenter stated, our inspectors are not conducting risk assessments at the ports; rather, they make decisions about how to apply the regulations, which are the result of risk assessments. The phytosanitary certificates that have accompanied restricted articles may not have enough information to allow an inspector to determine what restrictions apply to its importation in cases where restrictions apply to species or cultivars within a genus. The proposed change was intended to address this problem. We appreciate the opportunity to clarify this point.

One commenter, addressing the fact that we need data on which species are imported to further our efforts to revise the nursery stock regulations, stated that the data should be obtained from forms other than the phytosanitary certificate.

The Paperwork Reduction Act obligates us to minimize paperwork burden on stakeholders; requiring genus and species data to be submitted on a different form would be an unjustifiable duplicate paperwork burden. We are making no further changes to the proposed rule in response to these comments.

We proposed to amend paragraph § 319.37-4(a) of the regulations, which requires that most restricted articles imported into the United States be accompanied by a phytosanitary certificate, to allow small individual shipments of bulbs from the Netherlands to enter with a special certificate related to a phytosanitary certificate. The special certificate would list a serial number that would refer to a phytosanitary certificate held by the NPPO of the Netherlands. The special certificate would also list the scientific name of the bulb, the bulbs' country of origin, and an expiration date after which the special certificate could no longer be used in lieu of a phytosanitary certificate. We proposed that the expiration date for the special certificates would be 4 weeks after the issuance of the phytosanitary certificate held by the NPPO of the Netherlands.

Commercial shipments of bulbs from the Netherlands must be precleared for entry into the United States by a PPQ inspector. In addition, under § 319.37-5(a), all bulbs imported from the Netherlands must be accompanied by a phytosanitary certificate with an additional declaration that the bulbs offered for importation were grown on land that has been sampled and microscopically inspected by the plant protection organization of the Netherlands and found to be free from the potato cyst nematodes Globodera rostochiensis (Woll.) Behrens and G. pallida (Stone) Behrens within the past 12 months.

The proposed special certificate would accompany small individual shipments of bulbs imported into the United States in passenger baggage; the special certificate would be easier for individuals to obtain than a full phytosanitary certificate. The clearance process at the port of entry would continue to serve as an additional mitigation against the risk of introduction of nematodes into the United States.

One commenter was concerned that, while the special certificate would be linked to a phytosanitary certificate issued, held, and retrievable upon request by the NPPO of the Netherlands, the proposed regulations did not contain any provisions linking the bulbs imported under the special certificate to the requirements of § 319.37-5(a). Thus, the commenter stated, bulbs imported under the proposed special certificate might have originated in someone's backyard. Two other commenters stated that the proliferation of special certificates could allow these documents to be misused and thus increase the risk of introduction of potato cyst nematodes into the United States.

All bulbs imported from the Netherlands are subject to the requirements in § 319.37-5(a). Special certificates would be assigned to lots of bulbs inspected and certified under the phytosanitary certificate issued for that particular lot as part of the preclearance process. A phytosanitary certificate would not be issued for a lot of bulbs unless the bulbs in the lot meet all the requirements in the regulations for importation into the United States. The special certificates will serve as an indication that the bulbs have been inspected and certified, and they will be related to a specific phytosanitary certificate in all cases. Any fraud committed using the special certificates would be investigated by APHIS' Investigation and Enforcement Services.

We do not believe it would be prudent to specifically refer to § 319.37-5(a) in the regulations governing the issuance and use of the special certificates, as the phytosanitary certification requirements for bulbs from the Netherlands may change over time and thus may be contained in different sections of the regulations. We are making no changes to the proposed rule in response to these comments.

One commenter cited high rejection rates in recent years for shipments of bulbs from the Netherlands and stated that using special certificates would not be advisable if the phytosanitary certificates were already suspect.

Our records do not indicate high rejection rates either for bulbs that are inspected and precleared in the Netherlands or for bulbs from the Netherlands that have been inspected and released at a U.S. port of entry. Bulbs entering the United States with a special certificate would have been inspected by the NPPO of the Netherlands. The special certificate indicates that the bulbs have been inspected and a phytosanitary certificate was issued for the lot of bulbs. The special certificate is traceable to the actual phytosanitary certificate on file in the Netherlands. These bulbs would also be subject to inspection when the passenger arrives at a United States port of entry. If there are phytosanitary problems with bulbs under the special certificate, we would notify the NPPO of the Netherlands for corrective action.

One commenter, the Netherlands NPPO, stated that the proposed program agreed to by APHIS and the Netherlands NPPO had specified that the special certificates would be valid for 6 weeks, rather than 4.

The commenter is correct, and we have made that change in this final rule.

The Netherlands NPPO also stated that it and APHIS had agreed to a workplan that states that no phytosanitary certificates, either originals or copies, will accompany shipments of bulbs that have been precleared in the Netherlands; they are given to the APHIS inspector in the Netherlands or mailed to APHIS offices. However, the language in § 319.37-5(a) states that the phytosanitary certificate must accompany the bulbs “at the time of arrival at the port of first arrival in the United States,” which contradicts the workplan.

The commenter is correct that the specific language “at the time of arrival at the port of first arrival in the United States” would not allow the program to work as proposed. We are removing that language from § 319.37-5(a) in this final rule. The phytosanitary requirements in § 319.37-5(a) will remain otherwise unchanged.

One commenter expressed concern that the current preclearance program for bulbs from the Netherlands only addresses the specific nematode pests cited earlier. The commenter stated that imported bulbs can carry other pests that are of concern to nurseries, commercial flower growers, State departments of agriculture, and industries other than the nursery industry. The commenter cited Ditylenchus dipsaci and D. destructor as two pests that are of concern to the potato industry and that are regulated by some State departments of agriculture. The commenter urged APHIS to expend more effort on ensuring that regulated nonquarantine pests are not imported into the United States via bulbs and other nursery stock.

At this time, APHIS has not identified any regulated nonquarantine pests and has not established regulations for their official control. In order for APHIS to restrict the importation of regulated nonquarantine pests under the IPPC, we would have to identify regulated nonquarantine pests (including providing scientific justification for regulating them) and establish official control mechanisms. We have not yet done so. We are considering whether to develop procedures for identifying such pests and whether to establish regulations to control their importation. We cannot take any action against regulated nonquarantine pests in this final rule.

We proposed to add a new paragraph (d) to § 319.37-4 of the regulations to allow seed exported from Canada that meets certain conditions to be imported into the United States without a phytosanitary certificate. To be eligible for this exemption, Canadian exporters of seed would have to register with and participate in a seed export program that would be established by the Canadian Food Inspection Agency (CFIA).

One commenter asked whether Canada would establish a similar program to allow U.S. seed to be exported to Canada without a phytosanitary certificate.

We evaluated the Canadian request for a seed export program on the basis of whether such importation would increase the risk of introducing a seed-borne plant pest into the United States. Our evaluation concluded that, under the conditions specified in the proposal, the absence of a phytosanitary certificate would not increase that risk. Whether Canada would reciprocate was not a subject of our evaluation.

One commenter asked whether imposing these requirements on the importation of Canadian seed was unlawful discrimination against Canadian seed exports.

This change liberalizes trade by removing the requirement for a phytosanitary certificate while providing other conditions that maintain phytosanitary security. We proposed this change at the request of the Canadian NPPO, so we are assuming that they do not believe that this change discriminates against seed exports from their country. Canadian seed exporters still have the option of obtaining a phytosanitary certificate for each shipment they export to the United States.

One commenter, the Canadian NPPO, requested that the United States exempt small shipments of commercially packaged seed from all phytosanitary requirements to facilitate their export to the United States. The commenter stated that the risk presented by such packages should be minimal due to the small quantity of seeds being shipped under such an exemption.

We have not previously received a proposal for such an exemption, and we cannot make such a change without giving the public an opportunity to comment on it. We are making no changes in response to this comment. We will note that such a change would be inconsistent with the regulations that set out conditions for importing small lots of seed without a phytosanitary certificate, which we established in a final rule published in the Federal Register on April 13, 2006 (71 FR 19097-19102, Docket No. 02-119-2).

Related to the rule establishing conditions for the importation of small lots of seed without a phytosanitary certificate, we are making one change to the proposed rule text in this final rule. We had proposed to add the Canadian seed program in a new paragraph (d) in § 319.37-4. Since the publication of the proposed rule, the final rule establishing conditions under which small lots of seed may be imported without a phytosanitary certificate added a new paragraph (d) to § 319.37-4 that sets out those conditions. Accordingly, this final rule adds the Canadian seed program in a new paragraph (e). We have also made minor adjustments to the language in proposed paragraph (a) to reflect this change.

We proposed to add a new paragraph § 319.37-5(t) to the regulations to require that phytosanitary certificates that accompany Vaccinium corymbosum (blueberry) plants that are imported from Canada must contain an additional declaration stating that the plants are free of blueberry scorch carlavirus.

Blueberry scorch carlavirus causes blueberry scorch disease, the primary symptom of which is blighting of both flowers and new vegetative growth at peak bloom. Blighted blossoms fail to produce fruit, and infected plants in general are less vigorous than healthy plants. Bushes, once infected, may show symptoms each year. Initially, only one or few branches may have blighted flowers and leaves, but after a few years the entire bush may show symptoms.

We proposed to require this additional declaration on the phytosanitary certificate accompanying V. corymbosum plants because virulent strains of blueberry scorch carlavirus have been found that exist only in Canada.

One commenter stated that other plants can serve as hosts of blueberry scorch carlavirus, including huckleberry and cranberry plants.

We agree with this commenter. In this final rule, we are expanding the scope of the additional declaration requirement to include all Vaccinium spp., not just V. corymbosum.

One commenter asked us to change the proposed regulations so that they stated that the declaration of freedom has to be based on annual testing of the “mother” plants used for propagation rather than just visual inspection. Another commenter addressed the same issue in noting that the virus has a 2-year latent period.

We agree with these commenters. In this final rule, we are requiring that Vaccinium spp. from Canada be grown in an approved certification program for blueberry scorch carlavirus. APHIS would evaluate certification programs for blueberry scorch carlavirus upon request.

One commenter pointed out an inconsistency in our proposal: The proposed declaration applied broadly to all strains of blueberry scorch carlavirus, but the preamble to the proposed rule expressed concern about specific virulent strains of blueberry scorch carlavirus that have been found only in Canada. The commenter asserted that restricting importation for all strains of the virus is not justified, as some strains of the virus are also found in the United States and are not under official control.

We agree with this comment. In this final rule, we are requiring that Vaccinium spp. imported into the United States be grown in an approved certification program and tested free of only the BC-1 and BC-2 strains of blueberry scorch carlavirus. Canadian government information indicates that these strains are distinct from the Northwest strain (present in the States of Oregon and Washington) and the East Coast strain (first identified in New Jersey and present in that and some surrounding States). 4 To our knowledge, the BC-1 and BC-2 strains are not present in the United States. These strains are more aggressive than the strains that are present in the United States, having infected approximately 30 percent of blueberry production fields in British Columbia since 2000.

With these changes, paragraph (t) of § 319.37-5 reads as follows in this final rule: “For any Vaccinium spp. plants from Canada, the phytosanitary certificate of inspection required by § 319.37-4 must contain an additional declaration that the articles were produced in an approved certification program and found by the national plant protection organization of Canada to be free of the BC-1 and BC-2 strains of blueberry scorch carlavirus.”

In practice, these requirements will likely mean that Vaccinium spp. imported from Canada will be free of all strains of blueberry scorch carlavirus, not just the BC-1 and BC-2 strains, as testing for specific strains of blueberry scorch carlavirus is time- and resource-intensive. However, if Vaccinium spp. from Canada were tested for specific strains and found to be infected with strains of blueberry scorch carlavirus other than BC-1 and BC-2, we would allow their importation.

Two commenters stated that the movement of blueberry plants between Canada and the United States, in both directions, is common and has occurred for many years. The commenters stated that the fields of blueberry in the Canadian province of British Columbia that are known to be infected are just one-quarter mile north of the Canada-United States border. Because the virus is spread through the movement of virus-carrying aphids as well as through the movement of propagative materials, these commenters asserted that any regulations to restrict movement are unwarranted.

One of these commenters stated that the CFIA has conducted extensive surveying in the province of British Columbia; additional surveying would be required in suspect U.S. States to determine the true range of these new strains of the virus. The other stated that the commenter's organization was unaware of a risk assessment or national survey having been conducted by the United States to determine whether the strains of blueberry scorch carlavirus that are of concern are present in the United States.

While blueberry plants have moved between Canada and the United States, their importation into the United States has also been subject in many cases to State regulations that require them to be free of blueberry scorch carlavirus. (As one of these commenters noted, the British Columbia Ministry of Agriculture and Lands has worked with the State departments of agriculture in Oregon and Washington to develop a certification program for the propagation of blueberry plants based on testing and isolation.) Surveys that have been conducted at the State level in the United States have not detected the BC-1 or BC-2 strains of blueberry scorch carlavirus. We will continue to survey for these strains of blueberry scorch carlavirus, and we will revisit our regulations if either of the BC-1 or BC-2 strains is detected in the United States. We recognize that aphids can transport the virus across the U.S.-Canada border, but this transport is only in the immediate area of the border. Infected Vaccinium spp. plants are the principal means of long-distance spread to the major U.S. blueberry-producing areas. We believe restrictions on the importation of Vaccinium spp. from Canada are justified to prevent the introduction of the BC-1 and BC-2 strains of blueberry scorch carlavirus into the United States. We are making no changes in response to these comments.

One commenter noted that Vaccinium spp. can serve as hosts for Phytophthora ramorum (sudden oak death) and asked that we not overlook P. ramorum in promulgating restrictions on the importation of Vaccinium spp.

We are developing a separate interim rule that will place restrictions on the importation of Vaccinium spp. due to the presence of P. ramorum in certain countries. Temporary, emergency restrictions are already in place to prevent the introduction of P. ramorum in imported host plants.

One commenter asked that APHIS expand the regulations to include restrictions to prevent the introduction of other blueberry diseases, such as blueberry shock virus.

Blueberry shock virus is present in the United States, and we do not have an official program to control its spread; therefore, we would not be justified in placing restrictions on the importation of blueberries to prevent its introduction. We are not currently aware of any blueberry diseases that are not present in the United States and that are present in other countries from which the United States imports blueberries that are not already addressed in the regulations. We welcome suggestions regarding other blueberry diseases that may be appropriate for us to address in the regulations. [P]One of these commenters stated that the CFIA has conducted extensive surveying in the province of British Columbia; additional surveying would be required in suspect U.S. States to determine the true range of these new strains of the virus. The other stated that the commenter's organization was unaware of a risk assessment or national survey having been conducted by the United States to determine whether the strains of blueberry scorch carlavirus that are of concern are present in the United States. [P]While blueberry plants have moved between Canada and the United States, their importation into the United States has also been subject in many cases to State regulations that require them to be free of blueberry scorch carlavirus. (As one of these commenters noted, the British Columbia Ministry of Agriculture and Lands has worked with the State departments of agriculture in Oregon and Washington to develop a certification program for the propagation of blueberry plants based on testing and isolation.) Surveys that have been conducted at the State level in the United States have not detected the BC-1 or BC-2 strains of blueberry scorch carlavirus. We will continue to survey for these strains of blueberry scorch carlavirus, and we will revisit our regulations if either of the BC-1 or BC-2 strains is detected in the United States. We recognize that aphids can transport the virus across the U.S.-Canada border, but this transport is only in the immediate area of the border. Infected [E T='03']Vaccinium[/E] spp. plants are the principal means of long-distance spread to the major U.S. blueberry-producing areas. We believe restrictions on the importation of [E T='03']Vaccinium[/E] spp. from Canada are justified to prevent the introduction of the BC-1 and BC-2 strains of blueberry scorch carlavirus into the United States. We are making no changes in response to these comments. [P]One commenter noted that [E T='03']Vaccinium[/E] spp. can serve as hosts for [E T='03']Phytophthora ramorum[/E] (sudden oak death) and asked that we not overlook [E T='03']P. ramorum[/E] in promulgating restrictions on the importation of [E T='03']Vaccinium[/E] spp.[P]We are developing a separate interim rule that will place restrictions on the importation of [E T='03']Vaccinium[/E] spp. due to the presence of [E T='03']P. ramorum[/E] in certain countries. Temporary, emergency restrictions are already in place to prevent the introduction of [E T='03']P. ramorum[/E] in imported host plants. [P]One commenter asked that APHIS expand the regulations to include restrictions to prevent the introduction of other blueberry diseases, such as blueberry shock virus. [P]Blueberry shock virus is present in the United States, and we do not have an official program to control its spread; therefore, we would not be justified in placing restrictions on the importation of blueberries to prevent its introduction. We are not currently aware of any blueberry diseases that are not present in the United States and that are present in other countries from which the United States imports blueberries that are not already addressed in the regulations. We welcome suggestions regarding other blueberry diseases that may be appropriate for us to address in the regulations.

We proposed to add new paragraphs (u) and (v) to § 319.37-5 to establish programs to govern the importation of approved plants from the Canary Islands of Spain and from Israel, respectively. Under this proposal, the NPPO of the country of origin, the growers in the country of origin, and APHIS would jointly implement safeguards to ensure that the relevant quarantine pests are not present in shipments of approved plants. In the case of the Canary Islands, the approved plants would be Pelargonium (geranium) spp., and the pests of concern are Helicoverpa armigera, the cotton bollworm; Chrysodeixis chalcites, the tomato looper; and Syngrapha circumflexa (syn. Cornutiplusia circumflexa ). 5 In the case of Israel, all plants except bulbs, dormant perennials, and seeds that are imported into the United States would be required to be imported under this program. The main pest of concern in Israel is Spodoptera littoralis, the Egyptian cotton leafworm, although other quarantine pests are found in Israel and must be excluded from shipments of plants imported under this program.

Four commenters were concerned that the pests listed in these proposed programs did not include Ralstonia solanacearum race 3 biovar 2 (potato brown rot), a bacterial disease for which APHIS has established regulations in § 319.37-5(r). One of these commenters asked APHIS to amend the proposed regulations to indicate that the R. solanacearum race 3 biovar 2 regulations in § 319.37-5(r) superseded the proposed regulations. Two of these commenters also stated that quarantine-significant potato cyst nematodes and other exotic cyst-forming nematodes occur in the Canary Islands and Israel. These commenters expressed hope that the phytosanitary requirements for export of Pelargonium spp. and other plants to the United States also include rigorous exclusionary measures to prevent the contamination of plants and packing material with cysts of these nematode pests. Another commenter asked if there were any other pests of concern associated with the importation of these plants from the Canary Islands and Israel.

The importation of Pelargonium spp. from the Canary Islands and from Israel is subject to all requirements in the nursery stock regulations; none of the regulations in the nursery stock subpart supersede each other, and all must be complied with in order to import nursery stock into the United States. The proposed regulatory text stated that the importation of plants from the Canary Islands and from Israel would be subject to the requirements of “this section,” i.e., § 319.37-5, which includes the requirements in paragraph (r) of § 319.37-5 as well as the proposed requirements.

Both Spain and Israel are countries where R. solanacearum race 3 biovar 2 is not known to occur. If R. solanacearum race 3 biovar 2 was detected in these countries, we would enforce the regulations in § 319.37-5(r)(3) as well as the relevant regulations elsewhere in § 319.37-5. Similarly, plants imported from the Canary Islands and Israel would have to meet all other applicable requirements in the regulations, including any restrictions based on the presence of potato cyst nematodes in those countries. We would ensure that all relevant requirements would be met in the workplan that APHIS develops with the NPPO of the country of origin and, if necessary, the grower. All nursery stock imported under these programs will be inspected at a USDA plant inspection station, and appropriate action will be taken if a quarantine pest is found.

One commenter was concerned about the level of APHIS involvement in the proposed programs. The commenter cited proposed provisions in which APHIS would inspect and approve production sites and packing materials and proposed provisions in which APHIS, along with the NPPO of the country of origin, would monitor compliance with the program requirements and decide whether to reinstate growers who had violated those requirements. The commenter referred to the text of the IPPC  6 and stated that Articles IV and V.2 of that document grant responsibility for performing such tasks solely to the NPPO of the country in which production of the exported articles takes place. The commenter stated that, apart from very specific risk situations, the monitoring of programs in the exporting country should solely be the responsibility of the exporting country's NPPO. The commenter considered the proposed involvement of APHIS to present an unnecessary and unjustified interference with the exporting countries' responsibilities.

Both the Canary Islands program and the Israel program have been proposed because the high-risk plant pests addressed by these programs were frequently intercepted at U.S. ports of entry in shipments of plants from the Canary Islands and Israel. Because these programs have been agreed to by the relevant parties, and specifically because the foreign NPPOs involved have agreed that APHIS labor is necessary to help administer the programs, we do not believe that it would be appropriate to change the programs at this point. If, in the future, the foreign NPPOs wish to assume a more active role, we will entertain discussions with them regarding roles and responsibilities.

We received three comments specifically addressing the trust funds that we proposed to require as a means of funding APHIS involvement in these programs. One commenter supported our proposed use of the trust funds. Another commenter was concerned that other countries have begun requiring similar trust funds for commodities exported from the United States to those countries, and suggested that we think about other cost recovery mechanisms. A third commenter stated that the proposed rule may lead to substantial increase in the costs for the export of plant material to the United States, as there would be additional expenses for bilateral cooperation and the involvement of APHIS experts. As a consequence, this commenter stated, only large companies that can afford the additional financial and administrative burden for such a program may be able to export plant material to the United States in the future. This development would be in contrast to the IPPC requirement that importing countries take the least restrictive measures possible in order to reach a minimum impediment to the international movement of commodities. In addition, the commenter questioned why the costs would have to be paid in advance.

The trust fund requirement is common practice under many other APHIS import regulations that require APHIS to assist in certification ( e.g. , importing Pelargonium spp. and Solanum spp. from areas where R. solanacearum race 3 biovar 2 is known to exist under § 319.37-5(r), or importing Hass avocados from Mexico for consumption under § 319.56-2ff). The trust fund is intended to ensure that the government of the country in which the articles are produced or its designated representative bears the costs of monitoring and inspection, rather than U.S. taxpayers. (The government of the country in which the articles are produced is, of course, free to pass this cost on to production sites producing plants for export to the United States.)

Given that the NPPOs for the Canary Islands and Israel have agreed that APHIS involvement is necessary to ensure that plants exported from those countries are free of quarantine pests, we believe that we are in fact requiring the least restrictive measures possible. Requiring that APHIS subsidize the production of plants grown in foreign countries for export to the United States by providing its labor free of charge would, we believe, be a misallocation of APHIS' limited resources.

The commenter asking us to consider other cost recovery mechanisms did not suggest any alternatives. Of the options for cost recovery we have considered, we have determined that the trust fund is the simplest and most direct means of cost recovery. We are making no changes to the proposed rule in response to these comments.

We proposed to allow kenaf seed from Mexico to be imported into pink bollworm generally infested areas in the United States without treatment. Under the current regulations in § 319.37-6(a), seeds of Hibiscus spp. (hibiscus, rose mallow) from any foreign country or locality, at the time of importation into the United States, must be treated for possible infestation with Pectinophora gossypiella (Saunders) (pink bollworm) in accordance with the applicable provisions of 7 CFR part 305.

However, the movement of untreated kenaf ( Hibiscus cannabinus ) seed from Mexico into pink bollworm generally infested areas of the United States (listed under our domestic pink bollworm quarantine and regulations in 7 CFR 301.52-2a, and currently the States of Arizona, New Mexico, and Texas, and several counties in California) would pose little or no risk of increasing the area of pink bollworm infestation. Under our domestic pink bollworm quarantine regulations in § 301.52, these generally infested areas are quarantined to prevent the spread of pink bollworm, and kenaf seed is a regulated article under § 301.52(b) that may not be moved interstate from any quarantined area except under the conditions described in § 301.52-3.

We proposed that kenaf seed from Mexico imported into pink bollworm generally infested areas would be subject to inspection, and, immediately upon release, would be subject to the domestic pink bollworm quarantine regulations in §§ 301.52 through 301.52-10, Subpart—Pink Bollworm.

Two commenters asked whether APHIS could allow Mexican kenaf seed to be imported into pink bollworm generally infested areas without allowing other kenaf seed from other countries to be imported into those areas as well.

As we stated in the proposal, we have reviewed the pests associated with kenaf seed in Mexico and found that the pink bollworm is the only pest of concern. We would provide similar treatment for kenaf seed imports from other countries only if it could be determined that the pink bollworm is the only pest of concern associated with kenaf seed in those countries as well and that the seed could be imported directly into the generally infested areas.

Two commenters stated that the proposal appeared to indicate that APHIS has domestic regulations that could allow the distribution of pink bollworm on kenaf seed. These commenters suggest that we first correct what appeared to them to be permissive domestic regulations prior to allowing the importation of kenaf seed into the United States from Mexico. The commenters asserted that there is no guarantee that potentially infested kenaf seed would not be moved to areas free of the pink bollworm.

We would only allow the importation of untreated kenaf seed from Mexico into generally infested areas for pink bollworm. In the generally infested areas, we are not pursuing eradication of pink bollworm. Instead, we have placed restrictions on the interstate movement of commodities whose movement could spread pink bollworm from generally infested areas to areas where we are pursuing eradication of pink bollworm or areas where pink bollworm is not known to occur. Once Mexican kenaf seed enters the United States, it would be subject to the domestic pink bollworm regulations. These regulations are designed to prevent the movement of potentially infested kenaf seed, whether it has originated in a foreign country or domestically, from generally infested areas unless it is moved under conditions that would prevent the spread of pink bollworm, as listed in § 301.52-4(a). Any violations would be investigated by APHIS' Investigation and Enforcement Services. We are making no changes to the proposed regulations in response to these comments.

We also proposed to reorganize the regulations in § 319.37-6 into a table. The proposed table had one row for each of the six paragraphs in § 319.37-6. However, some of the paragraphs addressed multiple genera, and it could be confusing to list multiple genera in one row in a table. In this final rule, we have listed each genus in § 319.37-6 in a separate row in the table. In an effort to provide further clarity, we have also revised the proposed table entry for “Rutaceae seeds” to read “Rutaceae, seeds of all species in the family.” Finally, the proposed listing for the pests addressed by treating Guizotia abyssinica (niger) seeds, which stated that the treatment was intended to address Cuscuta spp., was incomplete; we have expanded the listing to include the other noxious weeds listed in 7 CFR 360.200.

We proposed to add a new provision in § 319.37-7(d)(7)(ii) allowing importers of Hydrangea spp. from all countries and localities except Canada and Japan who are operating under a postentry quarantine agreement to grow any article of Hydrangea spp. or increase therefrom for a period of 9 months after the importation of the plants, rather than 2 years as had been previously required.

Two commenters asked questions about the evidence leading us to the proposed reduction in the quarantine period, requesting that a risk assessment be made available. One of these commenters stated that the postentry quarantine period should be established on the basis of a risk assessment for importing Hydrangea spp. from each country of origin.

We determined that the 9-month postentry quarantine period was adequate based on a review of the available literature. We appreciate the opportunity to expand on our reasons for determining that a 9-month postentry quarantine period is adequate for Hydrangea spp.

The pest of concern for imported Hydrangea spp. is Pucinnia glyceriae ( Aecidium hydrangeae-paniculatae ). This pest is a rust fungus known as a heteroecious macrocyclic rust. This means that this rust has four different life stages in its life cycle, with two of those stages occurring on Hydrangea spp. and the other two stages on Glyceria spp., a genus within Poaceae, the grass family. Both hosts are necessary in order for the pathogen to complete its life cycle. The spores produced by this pathogen on Hydrangea can not reinfect Hydrangea but have to land and germinate on Glyceria spp.; infections on Hydrangea are caused only by spores produced on the Glyceria spp. host.

The regulations only allow the importation of Hydrangea spp. from countries where A. hydrangeae-paniculatea is not known to occur, which means that the Hydrangea spp. plants imported into postentry quarantine would not be expected to be infected with the pest. In the event that an article of Hydrangea spp. was imported with an infection, however, the pathogen would only survive if the article of Hydrangea spp. were grown in postentry quarantine with Glyceria spp., which are not known to be grown in cultivation. If such conditions nevertheless prevailed, the pathogen would reveal itself in large lesions on the leaves of the Hydrangea plant early within a growing season, which is typically 9 months.

In general, the country of origin of a plant is irrelevant to the question of how long a period is required for a pest to express itself in a plant.

Three commenters recommended that the 9-month postentry quarantine period include the three most rust-conducive months of the year, to facilitate expression of the pest.

We agree with these commenters that Hydrangea spp. should be grown in conditions that will facilitate expression of the pest. Plants in postentry quarantine are usually grown outside during the quarantine period. The 9-month postentry quarantine period would thus contain periods conducive to developing symptoms of A. hydrangeae-paniculatea. In most regions of the United States, the outdoor growing season is less than 9 months. Given these facts, we believe it is not necessary to explicitly require in the regulations that the Hydrangea spp. be grown in rust-conducive conditions.

Two commenters expressed concern that R. solanacearum may be a pest of Hydrangea spp. that we have not addressed. They cited recent problems with latent bacterial wilt in the “Lady in Red” cultivar of Hydrangea macrophylla as raising concerns about whether a 9-month postentry quarantine period would be adequate to manifest this pathogen under normal production practices. Although no R. solanacearum race 3 biovar 2 has been detected in any Hydrangea spp., these commenters suggested that APHIS require that the mother plants of imported Hydrangea spp. be regularly indexed for R. solanacearum.

We appreciate the commenters' concerns. Because no R. solanacearum race 3 biovar 2 has been found in Hydrangea spp., we have no basis for establishing regulations to prevent the introduction of that pest via the importation of Hydrangea spp. If R. solanacearum race 3 biovar 2 were found in Hydrangea spp., we would likely address it through a systems approach (as we do for Pelargonium spp. and Solanum spp. in § 319.37-5(r)) rather than through postentry quarantine.

The regulations in § 319.37-7(a) designate as restricted articles any articles of Chrysanthemum spp., Dendranthema spp, Leucanthemella serotina, and Nipponanthemum nipponicum that meet the conditions for importation in § 319.37-5(c) and that are imported from any foreign locality except Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Bulgaria, Canary Islands, Chile, China, Colombia, Croatia, Ecuador, Iceland, Japan, Korea, Liechtenstein, Macedonia, Malaysia, Mexico, Moldova, Monaco, New Zealand, Norway, Peru, Republic of South Africa, Romania, Russia, San Marino, Switzerland, Taiwan, Thailand, Tunisia, Ukraine, Uruguay, Venezuela, Yugoslavia; the European Union (Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and United Kingdom); and all countries, territories, and possessions of countries located in part or entirely between 90° and 180° East longitude. Articles designated as restricted articles in § 319.37-7(a) must be grown in postentry quarantine under the conditions described in paragraphs (c) and (d) of § 319.37-7. Paragraph (d)(7)(ii) currently requires that any restricted articles of Chrysanthemum spp., Dendranthema spp, Leucanthemella serotina, and Nipponanthemum nipponicum be grown in postentry quarantine for a period of 6 months. We proposed to reduce this postentry quarantine growing period to 2 months if the restricted articles are grown in accordance with the requirements of an APHIS-approved best management practices program.

We proposed this change because we had reviewed evidence indicating that the pest of concern with regard to imported articles of Chrysanthemum spp., Dendranthema spp, Leucanthemella serotina, and Nipponanthemum nipponicum, chrysanthemum white rust (CWR), will express symptoms within 2 months, meaning that 2 months would be an adequate postentry quarantine period for these articles. We proposed to reduce the postentry quarantine period for restricted articles of Chrysanthemum spp., Dendranthema spp., Leucanthemella serotina, and Nipponanthemum nipponicum to 2 months only if the articles are grown in accordance with the requirements of an APHIS-approved best management practices program as an additional safeguard.

Sixteen commenters addressed the proposed change to the postentry quarantine requirements for articles of Chrysanthemum spp., Dendranthema spp., Leucanthemella serotina, and Nipponanthemum nipponicum. While many commenters supported the change, many commenters were confused regarding whether the best management practices program was intended to apply to production in the country of origin or postentry quarantine in the United States. In addition, some commenters disputed our conclusion that 2 months was an adequate amount of time for CWR to express itself in postentry quarantine.

Based on these comments, we are withdrawing the proposed change. We will revisit the issue in a separate proposed rule, providing information on the issues commenters raised and revising the proposed regulatory text to clarify our intentions.

We proposed to amend § 319.37-8(b) of the regulations to allow the importation of restricted articles in growing media from two areas in Canada from which such importation is currently prohibited if those articles are grown under certain conditions. Paragraph (b) of § 319.37-8 allows the importation of restricted articles from Canada in any growing medium, except restricted articles from Newfoundland or from that portion of the Municipality of Central Saanich in the Province of British Columbia east of the West Saanich Road. Restricted articles from these areas may not enter in growing media because of the presence of potato cyst nematodes ( G. rostochiensis and G. pallida ) in those parts of Canada.

We determined that restricted articles that are grown in approved growing media and are isolated in such a manner as to prevent the restricted articles from being infested with potato cyst nematodes may be imported safely into the United States from these areas. Therefore, we are proposing to allow the importation of restricted articles in approved growing media from these areas in Canada if the phytosanitary certificate accompanying the articles contains an additional declaration stating that the restricted articles were produced in a production site approved by the NPPO of Canada as capable of isolating the plants from potato cyst nematode infestation and that the restricted articles were isolated from potato cyst nematode infestation throughout their production.

Two commenters were concerned that the sanitary conditions required for the production of the restricted articles to be shipped in growing media may not always provide complete protection to the United States from the introduction of cysts of potato cyst nematodes, which can easily contaminate plant shipments.

Because we are requiring specifically that the plants be grown in a manner to prevent infestation by potato cyst nematodes, we believe the proposed regulations addressed this concern. We are confident that we can work with the Canadian NPPO to develop measures that will be sufficient to protect restricted articles imported under these regulations from potato cyst nematode infestation.

Two commenters stated that other countries where potato cyst nematodes are present may feel discriminated against and ask to be allowed to export restricted articles under the same conditions.

Such countries are free to request that they be allowed to export restricted articles under the same conditions. If we can determine that the only quarantine pests associated with restricted articles to be exported from such a country are potato cyst nematodes, we will work with the NPPO of that country to develop conditions under which those restricted articles can be isolated from potato cyst nematodes during production and thus be authorized for importation into the United States. For many countries infested with potato cyst nematodes, our regulations in § 319.37-5(a) provide a means for exporting nematode host material to the United States under adequate safeguards.

One commenter asked whether Canada would enact similar regulations to allow the export to Canada of restricted articles from the nematode-infested areas of the State of New York.

Since outbreaks of potato cyst nematodes occurred recently in Quebec and Idaho, Canada and the United States have harmonized our regulations with regard to the importation of potential hosts of potato cyst nematodes. Currently, restricted articles from the nematode-infested areas of the States of New York and Idaho may be exported to Canada under certain conditions.

We are making one change to the proposed regulatory text. The proposed rule referred to an additional declaration stating that the restricted article was produced in a production site approved by the NPPO of Canada as capable of isolating the plants from infestation by potato cyst nematodes ( G. rostochiensis and G. pallida ) and that the restricted article was isolated from potato cyst nematode infestation throughout its production. During the deliberations on how to harmonize our potato cyst nematode-related regulations, the NPPO of Canada and APHIS agreed to similar, but simpler, text for the additional declaration. This final rule requires the additional declaration agreed to in the bilateral negotiations, which states simply that the plants were grown in a manner to prevent infestation by potato cyst nematodes ( G. rostochiensis and G. pallida ).

We proposed to add unused clay pots and new wooden baskets to the list of growing media approved for epiphytic plants found in § 319.37-8(d). Such media are used by many nurseries, and we proposed these additions at the request of importers. We believe that unused clay pots and new wooden baskets would be as safe as the current approved growing media.

One commenter suggested that “new” would be a better word than “unused” to describe the clay pots. We agree and have incorporated that change into this final rule.

Several commenters expressed concern that the wooden baskets we proposed to allow might be affected by wood-boring pests, and that importing epiphytic plants established in new wooden baskets might thus introduce such pests into the United States.

We did not make it clear in the proposal that new wooden baskets imported into the United States as growing media for epiphytic plants would have to comply with the existing regulations governing the importation of logs, lumber, and other unmanufactured wood articles in §§ 319.40-1 through 319.40-11. This final rule explicitly indicates that new wooden baskets must meet the requirements found in those regulations. Therefore, new wooden baskets will have to be imported under conditions designed to prevent the introduction of wood-boring pests into the United States.

We proposed to update the list of Federal plant inspection stations in § 319.37-14 to correct addresses, remove plant inspection stations no longer in use, and add new plant inspection stations. In addition, we proposed to remove the ports of entry that do not have plant inspection stations from the list in § 319.37-14 and instead indicate that restricted articles not required to be imported at a plant inspection station may enter the United States through any Customs designated port of entry. We also proposed to make several other updates to the regulations. We did not receive any comments on our reorganization of § 319.37-14 itself.

One commenter asked APHIS to confirm that the requirement that plants which are required to be imported under a written permit must be offered for import at a plant inspection station, if not precleared, does not apply to articles from Canada as described in § 319.37-3(a)(7).

Articles from Canada described in § 319.37-3(a)(7) are not required to be imported with a permit, and thus do not need to be imported into the United States through a plant inspection station.

One commenter suggested that, given the recent reassignment of some inspection responsibilities from APHIS to the Bureau of Customs and Border Protection, Department of Homeland Security, it would be advisable to change “Federal plant inspection stations” to “APHIS/PPQ plant inspection stations” in the regulations, to make it clear what organization operates the plant inspection stations.

We agree with this commenter that using the term “Federal” could create confusion. However, rather than the term suggested by the commenter, we would prefer to use the term “USDA plant inspection stations,” as this term is used internally in APHIS. We have made this change in the final rule.

In addition, the addresses for the USDA plant inspection stations in Miami, Agana, and Seattle have changed. We are updating them in this final rule. We are also amending the entry for San Diego to indicate that plants imported into San Ysidro may also be sent to this plant inspection station for inspection. Finally, we are amending the entry for Baltimore to clarify that only niger seed may be imported into this port for treatment.

One commenter asked us to correct an error in the regulations: Fragaria spp. is listed in the postentry quarantine regulations in § 319.37-7 as eligible for postentry quarantine from several countries, but importation of Fragaria spp. is prohibited from all countries other than Canada and Israel under § 319.37-2. The commenter recommended that we remove the entry for Fragaria spp. from § 319.37-7. We are doing so in this final rule.

In addition, we are correcting one other error in the regulations. The regulations in § 319.37-12 state that a restricted article for importation into the United States shall not be packed in the same container as an article prohibited importation into the United States by 7 CFR part 319 or part 321. Part 321 no longer exists; therefore, we are removing the reference to it in this final rule.

In a final rule published in the Federal Register on April 3, 2007 (72 FR 15805-15812, Docket No. 03-016-3) and effective on May 3, 2007, in the table in § 319.37-7(a)(3), we inadvertently removed Canada from the lists of countries in the entries for Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum, thus erroneously indicating that postentry quarantine is required for these articles when they are imported from Canada. This final rule corrects that error.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set out below, regarding the effects of this final rule on small entities.

Under the Plant Protection Act (7 U.S.C. 7701 et seq. ), the Secretary of Agriculture is authorized to regulate the importation of plants, plant products, and other articles to prevent the introduction of plant pests and noxious weeds.

We are amending the regulations on importing nursery stock to eliminate various restrictions on the importation of kenaf seed; to establish programs for the importation of approved plants from the Canary Islands and from Israel; to require an additional declaration on the phytosanitary certificate accompanying blueberry plants imported from Canada; to require that phytosanitary certificates include the genus and species names of the restricted articles they accompany when possible; to change the phytosanitary certificate requirements for several restricted articles; to reduce the postentry quarantine growing period for Hydrangea spp.; and to update the list of ports of entry and Federal plant inspection stations. The potential economic effects of the changes in this document are discussed below, by topic.

In our proposed rule, we stated that we did not have all the data necessary for a comprehensive analysis of the effects of this rule on small entities. Specifically, we lacked data regarding the number and kind of small entities that may incur benefits or costs from implementation of certain changes in this rule. In our proposed rule, we invited comments on these issues. However, none of the comments we received addressed these economic issues.

Several changes we are making, such as adding and changing definitions and reorganizing § 319.37-14, are administrative in nature and are not expected to have any impact on any U.S. entities, whether small or large. This analysis examines the economic effects of changes that could potentially have economic effects.

There are more than 400 species of Rubus in the temperate areas of the world. These are divided into subcategories that include dewberries, blackberries, and raspberries. Most species of Rubus grow as shrubs or trailing vines with thorny points. We are adding Rubus spp. from Europe not meeting the conditions for importation in § 319.37-5(f) to the list of prohibited articles in § 319.37-2(a). Rubus stunt agent ( Phytoplasma ) is a leafhopper-borne agent that causes damage to foliage and flowers. Rubus stunt agent has caused direct damage to European fruits through yield loss. 7 This amendment to § 319.37-2 will have no effect on domestic producers and consumers, while safeguarding the multi-million dollar U.S. berry production industry (2002). 8

We are requiring that the phytosanitary certificate that must accompany any restricted article presented for importation into the United States under § 319.37-4(a) include the genus name of the restricted article that it accompanies. The regulations will indicate that including the species name is strongly preferred, and required if the regulations include restrictions based on species within a genus, as in § 319.37-5(b). Although this information is not currently required to be given to APHIS, this information is already available for the vast majority of importers and exporters on the invoices that typically also accompany restricted articles presented for importation into the United States. For this reason, we believe that this change will not have a significant impact on any entities, whether large or small.

We are amending the regulations to allow bulbs from the Netherlands to enter the United States with a special certificate in lieu of a phytosanitary certificate. The special certificate will list special identification information for the shipment, including a serial number referring to the phytosanitary certificate on file in the Netherlands. The United States imported $185 million worth of bulbs and tubers from the Netherlands in 2005. This change will expedite entry of bulbs and tubers from the Netherlands when they are carried in small amounts by individuals. We have no reason to expect that this change will have a significant effect on domestic producers and consumers of bulbs and tubers.

We are amending § 319.37-4 to exempt certain Canadian seeds from the requirement for a phytosanitary certificate. Certain seeds from specific establishments in Canada will be able to enter the United States with proper identification and an alternative document in lieu of the required phytosanitary certificate. The alternative document will be an export certification label and a document agreed upon by APHIS and CFIA. This change will eliminate redundant paperwork requirements in the nursery stock regulations and the Federal Seed Act regulations in 7 CFR part 361.

The United States imported $128.5 million worth of planting seeds from Canada in 2004 while exporting $20.6 million planting seeds to Canada. The United States exported $263.3 million worth of planting seeds to the world in 2004 and imported $423 million worth of planting seeds from the world in 2004. 9 This amendment will allow the United States and Canada to trade seed more freely, benefiting both countries, with negligible impacts to domestic producers and consumers of seeds.

We are amending § 319.37-5 to require that Vaccinium spp. plants from Canada be accompanied by a phytosanitary certificate with an additional declaration stating that the articles were produced in an approved certification program and found by the national plant protection organization of Canada to be free of the BC-1 and BC-2 strains of blueberry scorch carlavirus. Blueberry production in the United States was worth $324 million in 2005. 10 This additional declaration will help to safeguard U.S. producers from virulent strains of the virus that only exist in Canada while continuing to allow imports of blueberry plants from Canada. This amendment will have a negligible impact on domestic producers and consumers of blueberry plants.

We are amending the regulations to require that Pelargonium spp. plants from the Canary Islands be grown under certain conditions and accompanied by a phytosanitary certificate. A phytosanitary certificate with an additional declaration confirming that those growing conditions have been met for Pelargonium spp. plants will minimize risk that organisms such as Helicoverpa armigera, Chrysodeixis chalcites and Syngrapha circumflexa (syn. Cornutiplusia circumflexa ) might enter the United States via the importation of these plants.

In 2005, the total number of U.S. growers of floriculture crops (including geraniums) was 10,563, according to USDA/NASS; 4,412 of these growers received $100,000 or more in annual sales. The rest (6,151 growers) received less than $100,000 in annual sales that year. The Small Business Administration considers a grower of floriculture crops to be small if it has less than $750,000 in annual sales, so at least 6,151 small entities, and probably more, could be affected by this change.

The United States is a net importer of floriculture crops (including geraniums). Specifically, in 2005 the United States imported $578 million worth of floriculture crops and exported $304 million of floriculture crops. In 2006, the United States imported a $695 value of floriculture crops and imported $331 million value.

No export data are currently available for the Canary Islands regarding plant cuttings. Given that, we expect the potential amount of U.S. imports of geraniums from the Canary Islands to be very small. We do not expect this change to have a significant impact on any U.S. entities, including growers of geraniums, regardless of their size.

We are amending the regulations to require that plants from Israel be grown under certain conditions and accompanied by a phytosanitary certificate along with an additional declaration confirming that those growing conditions have been met. Plants from Israel run the risk of harboring plant pests such as Spodoptera littoralis and other pests that could be introduced to the United States. S. littoralis is associated with cotton production losses around the world. Without control measures, S. littoralis could inflict heavy damage to both the yield and quality of U.S. cotton production.

Israel exported $10.2 million worth of plant cuttings to the United States in 2004, while the United States exported $9.5 million worth of cuttings to the world. 11 This change will help to safeguard the $5.57 billion worth of U.S. cotton production (2005). 12 We have no reason to expect that this change will have a significant effect on importers of plants from Israel or on domestic cotton producers and consumers.

Under the regulations in § 319.37-4(b), any restricted article may be sampled and inspected by an inspector under preclearance inspection arrangements in the country in which the article was grown, and must undergo any treatment contained in 7 CFR part 305 that is ordered by the inspector. We are adding a paragraph to § 319.37-6 to explicitly indicate that treatment of regulated articles of nursery stock may be administered outside the United States. We believe that this change will not have any significant impact on any U.S. entities, whether small or large.

The regulations in § 319.37-6(a) have required seeds of Hibiscus spp. (hibiscus, rose mallow) from any foreign country or locality, at the time of importation into the United States, to be treated for possible infestation with pink bollworm in accordance with the applicable provisions of 7 CFR part 305. We are providing an exception to the restriction for seeds of kenaf from Mexico that are imported into pink bollworm generally infested areas in the United States. The States of Arizona, New Mexico, and Texas, and specific counties in California are pink bollworm generally infested areas. With this change, shipments of untreated kenaf seed from Mexico will be authorized entry into those pink bollworm generally infested areas subject to inspection. Immediately upon release, those shipments will be subject to the domestic pink bollworm quarantine regulations in §§ 301.52 through 301.52-10, Subpart—Pink Bollworm.

Allowing the importation of untreated kenaf seed from Mexico into pink bollworm generally infested areas may have economic effects on some U.S. entities; however, if effects occur, they will be small, given that the United States imports mainly processed kenaf and very little seed and raw fiber. 13 For example, on average between 1999 and 2001, the United States imported 0.3 percent of world imports of raw (seeds are included) kenaf (table 1). U.S. demand for imported kenaf seed from Mexico is not expected to increase significantly as a result of the change.

Kenaf is an annual herbaceous plant of the Malvaceae family, and its flowers are closely related to those of cotton, okra, and hollyhock. Latin America, including Mexico, produces about 5 percent of the world's kenaf seed and fiber (table 2). Kenaf seed can grow in many parts of the United States, but it generally needs a long, warm growing season to produce the necessary yield to make it a profitable crop. Such a climate can only be found in the southern United States. Primary production areas in the United States are Texas (Lower Rio Grande Valley), Louisiana, Mississippi, Georgia, and Florida. An estimated 8,000 acres of kenaf was grown in the United States in 1997. 14

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rule makes the following corrections to the Export Administration Regulations.

This rule makes corrections to citations to three different subject matters in the EAR. First, throughout the EAR, many sections refer readers to the General Prohibitions, which affirmatively state licensing requirements for transactions and activities subject to the EAR. The General Prohibitions can be found in part 736 of the EAR, but several locations in the EAR cite part 734 instead. This rule corrects inaccurate citations to the General Prohibitions in the note to § 740.12(a), in paragraphs (f) and (i) in Supplement No. 2 to part 748, and in § 752.6(c).

Next, § 762.7 discusses the required period of retention for recordkeeping under the EAR, and paragraph (b) refers to “§ 765.5(c)(4)(ii)” for recordkeeping related to voluntary disclosures. However, part 765 does not exist in the EAR. Thus, this rule replaces that reference with the correct citation, which is § 764.5(c)(4)(ii).

Lastly, the definition for “Hold Without Action (HWA)” in § 772.1 refers to “§ 750.4(c)” for circumstances in which license applications may be held without action. However, § 750.4(c) refers to initial processing of applications, so this rule replaces “§ 750.4(c)” with the correct citation, which is § 750.4(b).

In accordance with the Next Steps in Strategic Partnership between the United States and India, the Bureau of Industry and Security (BIS) published a final rule on August 30, 2005 (70 FR 51251) removing certain Indian entities from the Entity List. One of the changes made concerned the removal of the second entry for the Department of Atomic Energy. The second entry for that entity contained the phrase “balance of plant”, which was found in the column for License review policy. Prior to the August 30, 2005 final rule, a superscript “1” was located next to “balance of plant” to reference an endnote found at the end of Supplement No. 4 to Part 744, which further elaborated on the phrase. When the prior rule removed the second entry containing the superscript “1”, it did not remove the endnote as well; thus, endnote 1 has remained with no corresponding text. As a result, this rule removes endnote 1 for “balance of plant” from the end of Supplement No. 4 to Part 744.

On June 19, 2007, BIS published a final rule (72 FR 33646) that inadvertently removed and reserved paragraph (a) in § 748.12 (special provisions for support documents), which should have remained in the EAR. Therefore, this rule corrects that removal by adding paragraph (a) back into § 748.12.

Section 758.1 introduces the Shipper's Export Declaration (SED) and Automated Export System (AES), which are used by the Bureau of Census to compile data on trade statistics and used by BIS to collect data on export controls. Paragraph (b) of § 758.1 details when an SED or AES record is required when exporting an item subject to the EAR. Prior to this rule, paragraph (b)(2) stated that an exporter must file an SED or AES “[f]or all exports subject to the EAR that require a license, regardless of value, or destination;”. This wording could cause ambiguity as to whether this paragraph requires an SED or AES record to be filed for the export of items having a license requirement that can be overcome by a license exception. The wording in paragraph (b)(2) is meant to apply only to those items having a license requirement that cannot be overcome by a license exception. Consequently, this rule changes the wording to read: “[f]or all exports subject to the EAR that require submission of a license application, regardless of value or destination;”.

On April 13, 1999, BIS (then the Bureau of Export Administration, or BXA) published a final rule (64 FR 17968) that added Export Control Classification Number (ECCN) 0A987 to the Commerce Control List for optical sighting devices for firearms. Prior to that rule, optical sighting devices for firearms were controlled under ECCN 0A985 (then partially titled “Optical sighting devices for firearms (including shotguns controlled by ECCN 0A984); discharge type arms * * *; and parts, n.e.s.”). In order to further clarity and consistency, BIS transferred optical sighting devices for firearms to a new ECCN. However, when ECCN 0A987 was added to the Commerce Control List, no License Exceptions section and no List of Items Controlled section were included. Since ECCN 0A985 previously controlled optical sighting devices for firearms, this rule adds a License Exceptions section and List of Items Controlled section to ECCN 0A987 that are identical to those respective sections in ECCN 0A985.

In addition, ECCNs 1C239 (certain high explosives) and 1C240 (certain nickel powder or porous nickel metal) currently list the applicable controls and country chart columns, but they do not list each reason for control at the beginning of the License Requirements section of each entry. Therefore, this rule adds the applicable reasons for control by adding nuclear nonproliferation (“NP”) and anti-terrorism (“AT”) to both ECCNs 1C239 and 1C240.

Lastly, this rule provides additional guidance by alerting readers of ECCN 1C239 to similar export controls found in related ECCNs. Specifically, this rule adds language to the “Related Controls” paragraph of ECCN 1C239 to refer readers to ECCNs 1C018 (commercial charges and devices containing energetic materials on the Wassenaar Arrangement Munitions List and certain chemicals) and 1C992 (certain commercial charges and devices containing energetic materials and nitrogen trifluoride in a gaseous state).

This rule removes references to the International Munitions List found in various parts of the EAR and in three separate ECCNs. The International Munitions List was a term used by the Coordinating Committee on Multilateral Export Controls (CoCom). CoCom was a multilateral organization that restricted strategic exports to controlled countries. On March 31, 1994, CoCom disbanded and was later replaced by the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. Due to the United States's membership in the Wassenaar Arrangement, this rule removes “International Munitions List” and replaces it with “Wassenaar Arrangement Munitions List” in §§ 738.2(d)(1), 744.17(d), 744.21(f), and 750.4(b)(6)(ii)(E), as well as in the headings of ECCNs 1B018, 2B018, and 8A018 on the Commerce Control List.

Section 740.2 details restrictions which prevent the use of any License Exceptions. One such restriction on the use of License Exceptions involves “space qualified” items, found in paragraph (a)(7) of § 740.2. That paragraph lists ECCN 6D104 and ECCN 6E102 as two ECCN entries for the “software” and “technology”, respectively, for certain “space qualified” commodities. However, ECCNs 6D104 and 6E102 do not currently exist on the Commerce Control List; thus, this rule removes those references to ECCNs 6D104 and 6E102 from § 740.2(a)(7).

Similarly, ECCN 6D001 also contains a reference to ECCN 6E102. In ECCN 6D001, the Related Controls paragraph instructs readers to “[s]ee also 6D991, and ECCNs 6E001 (‘development’) and 6E102 (‘use’) for ‘technology’ for items controlled under this entry.” This rule revises that sentence to read “See also 6D991, and ECCN 6E001 (‘development’) for ‘technology’ for items controlled under this entry.”

On July 23, 1999, BIS (then BXA) published a final rule (64 FR 40106) that moved mobile communication devices from ECCN 5A991.f to ECCN 5A991.g. This renumbering of paragraphs in ECCN 5A991 was done pursuant to Wassenaar Arrangement review. Later, on May 26, 2000, BIS published another final rule (65 FR 34073) that reflected the classification change for mobile devices in § 742.10(a)(2), which lists the ECCNs that are allowed for reexport to Sudan, under anti-terrorism controls. However, that May 26, 2000, final rule did not update the classification change for mobile devices for § 740.16(i), which lists the ECCNs that are permitted for reexport to Sudan without a license under License Exception APR (additional permissive reexports). Prior to the May 26, 2000, final rule, the ECCNs listed in § 742.10(a)(2) matched the ECCNs listed in § 740.16(i). To ensure conformity, this final rule updates § 740.16(i) to replace “5A991.f” with “5A991.g”, which will make the requirements concerning reexports to Sudan under License Exception APR consistent with the list of items allowed for reexport to Sudan under § 742.10.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 3, 2006, 71 FR 44551 (August 7, 2006), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

1. This final rule has been determined to be not significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves a collection of information subject to the requirements of the PRA. This collection has previously been approved by OMB under control number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. BIS expects that this rule will not change that burden hour estimate.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Steven Emme, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

The U.S. 70 Bridge, at mile 0.1, across Beaufort (Gallants) Channel, has a vertical clearance in the closed-to-navigation position of approximately 13 feet above mean high water.

On behalf of the Duke University chapter of the Coastal Society, the North Carolina Department of Transportation (the bridge owner) requested a temporary deviation from the current operating regulation set out in 33 CFR 117.822 to close the drawbridge to navigation to accommodate the annual triathlon fundraiser for the Neuse River Foundation scheduled for Saturday, September 8, 2007. The triathlon is an annual event, attracting participants from the surrounding cities and states.

To facilitate the triathlon run, the U.S. 70 Bridge will be maintained in the closed-to-navigation position from 11:30 a.m. to 2 p.m. on September 8, 2007.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The NJTRO Lower Hack Bridge, across the Hackensack River, mile 3.4, at Jersey City, New Jersey, has a vertical clearance in the closed position of 40 feet at mean high water and 45 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.723(b).

The owner of the bridge, New Jersey Transit Rail Operation (NJTRO), requested a temporary deviation to facilitate aerial cable installation at the bridge.

Under this temporary deviation the NJTRO Lower Hack Bridge need not open for the passage of vessel traffic for four weekends, July 28 and 29, August 4 and 5, August 11 and 12, and August 18 and 19, 2007, from 7 a.m. each Saturday morning through 7 p.m. each Sunday evening. Vessels that can pass under the bridge without a bridge opening may do so at all times.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The S99 Alford Street Bridge across the Mystic River, mile 1.4, between Charlestown and Boston, Massachusetts, has a vertical clearance in the closed position of 7 feet at mean high water and 16 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.609(a).

The owner of the bridge, the City of Boston, requested a temporary deviation to facilitate emergency mechanical repairs at the bridge that must be performed with all due speed to assure safe continued operation of the bridge.

Under this temporary deviation the S99 Alford Street Bridge need not open for the passage of vessel traffic from 7 a.m. on July 27, 2007 through 7 p.m. on July 27, 2007 and from 7 a.m. on August 28, 2007 through 11:59 p.m. on August 30, 2007. Vessels that can pass under the bridge without a bridge opening may do so at all times.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.36.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP San Juan 05-007), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this interim rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Lieutenant A.M. Schmidt of Sector San Juan, Prevention Operations Department at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

On February 10, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone: HOVENSA Refinery, St. Croix, United States Virgin Islands” in the Federal Register (70 FR 7065). We received no letters commenting on the proposed rule. No public meeting was requested and none was held. We decided to publish this interim rule instead of a final rule because we have determined it was necessary make a slight revision from the rule proposed in the above-mentioned notice of proposed rulemaking. Since the public did not have an opportunity to comment on the revision, we are issuing this interim rule with a request for comments before we create a final permanent rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Given, the prior notice of proposed rulemaking, the current request for comments in this interim rule and the highly volatile nature of the substances at the HOVENSA refinery, to which it has the potential of being a terrorist target, it would be contrary to the public interest to delay the effective date of this regulation.

The Coast Guard has published similar temporary security zones in the Federal Register at 67 FR 2332, January 17, 2002; 67 FR 57952, September 13, 2002; 68 FR 22296, April 28, 2003; 68 FR 41081, July 10, 2003; 69 FR 6150, February 10, 2004; 69 FR 29232, May 21, 2004; and 70 FR 2950, January 19, 2005. Given the highly volatile nature of the substances stored at the HOVENSA facility, the Coast Guard recognizes that it could be a potential terrorist target and there is continuing risk that subversive activity could be launched by vessels or persons in close proximity to the facility. This activity could be directed against tank vessels and the waterfront facility. This security zone is necessary to decrease the risk that subversive activity could be launched against the HOVENSA facility. The Captain of the Port San Juan is reducing this risk by prohibiting all vessels from entering within approximately 2 miles of the HOVENSA facility unless they have been specifically authorized by the Captain of the Port San Juan or have submitted a notice of arrival in accordance with the notice of arrival requirements of 33 CFR part 160, subpart C.

Although no comments were received on the NPRM, the COTP would like to receive comments on a proposed change to the regulatory text before issuing a final rule. The purpose of this change would be to clarify the boundaries of the security zone and reduce potential for misinterpretation. The change would affect the listed coordinates in paragraph (a) of § 165.766, and not the regulatory restrictions of the security zone in paragraph (b) of that section presented in the NPRM.

The pertinent sentence from the regulatory text in both the NPRM and this interim rule reads as follows:

The replacement language proposed for the final rule would read as follows:

The only difference between the two versions is that in the final rule, instead of returning from the last coordinate listed to the point of origin, the line would follow “the shoreline along the water's edge” in returning to the point of origin.

The security zone around the HOVENSA facility is encompassed by a line connecting the following coordinates: 17°41′31″ North, 64°45′09″ West; 17°39′36″ North, 64°44′12″ West; 17°40′00″ North, 64°43′36″ West; and 17°41′48″ North, 64°44′25″ West, and back to the point of origin. The security zone includes the waters extending approximately 2 miles seaward from the HOVENSA facility, Limetree Bay Channel and Limetree Bay. All coordinates are based upon North American Datum 1983 (NAD 1983). All vessels without a scheduled arrival in accordance with the Notice of Arrival requirements of 33 CFR part 160, subpart C are excluded from the zone unless specifically authorized by the Captain of the Port San Juan.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The burden imposed on the public by this rule is minimal and mariners may seek permission to enter the zone from the Coast Guard Captain of the Port San Juan or they may enter the zone if they have a scheduled arrival in accordance with the Notice of Arrival requirements of 33 CFR, part 160, subpart C.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

The factual basis for this certification is as follows:

• Owners of small charter fishing or diving operations that operate near the HOVENSA facility may be affected by the existence of this security zone.

• This rule will not have a significant economic impact on the above-mentioned entities or a substantial number of small entities because this zone covers an area that is not typically used by commercial fisherman or divers.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

EPA is taking final action to approve a revision to Iowa's SIP submitted on August 15, 2006. In its SIP revision, Iowa has met the CAIR requirements by requiring certain electric generating units (EGUs) to participate in the EPA-administered State CAIR cap-and-trade programs addressing SO 2 , NO X annual, and NO X ozone season emissions, as finalized in the Iowa Administrative Bulletin on June 7, 2006 (567-20.1(455B,17A), 21.1(4), and Chapter 34). Iowa's regulations adopt by reference most of the provisions of EPA's SO 2 , NO X annual, and NO X ozone season model trading rules, with certain changes discussed below. EPA has determined that the SIP as revised will meet the applicable requirements of CAIR. As a result of this action, the Administrator of EPA will also issue a final rule to withdraw the FIPs concerning SO 2 , NO X annual, and NO X ozone season emissions for Iowa. The Administrator's action will delete and reserve 40 CFR 52.840 and 40 CFR 52.841, relating to the CAIR FIP obligations for Iowa. The withdrawal of the CAIR FIPs for Iowa is a conforming amendment that must be made once the SIP is approved because EPA's authority to issue the FIPs was premised on a deficiency in the SIP for Iowa. Once a SIP is fully approved, EPA no longer has authority for the FIPs. Thus, EPA does not have the option of maintaining the FIPs following full SIP approval. Accordingly, EPA does not intend to offer an opportunity for a public hearing or an additional opportunity for written public comment on the withdrawal of the FIPs.

EPA proposed to approve Iowa's request to amend the SIP on May 8, 2007 (72 FR 26040). In that proposal, EPA also stated its intent to withdraw the FIP, as described above. The comment period closed on June 7, 2007. No comments were received. EPA is finalizing the approval as proposed based on the rationale stated in the proposal and in this final action.

The CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particles (PM 2.5 ) and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of SO 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual State-wide emission reduction requirements ( i.e. , budgets) for SO 2 and annual State-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO X for the ozone season (May 1 to September 30). Under CAIR, States may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures.

CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act (CAA) with regard to interstate transport with respect to the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings, effective on May 25, 2005, that the States had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3 years after the promulgation of the 8-hour ozone and PM 2.5 NAAQS.

Iowa submitted its SIP in response to EPA's section 110(a)(2)(D) finding, which EPA approved in a rule published March 8, 2007 (72 FR 10380). In that rule, EPA stated that Iowa had met its obligation with regard to interstate transport by adoption of the CAIR model rule. EPA also stated that it would review and act on Iowa's CAIR rule in a separate rulemaking. This document takes final action on Iowa's CAIR rule as explained below.

CAIR establishes State-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 starts in 2015 and continues thereafter. CAIR requires States to implement the budgets by either: (1) Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or (2) adopting other control measures of the State's choosing and demonstrating that such control measures will result in compliance with the applicable State SO 2 and NO X budgets.

The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs.

With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO X SIP Call trading programs in their CAIR NO X ozone season trading programs.

In this action, EPA is taking final action to approve Iowa's SIP revision that adopts the budgets established for the State in CAIR, i.e., 32,692 (2009-2014) and 27,243 (2015-thereafter) tons for NO X annual emissions, 14,263 (2009-2014) and 11,886 (2015-thereafter) tons for NO X ozone season emissions, and 64,095 (2010-2014) and 44,866 (2015-thereafter) tons for SO 2 emissions. Iowa's SIP revision sets these budgets as the total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs.

Iowa has committed to revising a definition in all three CAIR rules in order to fully ensure allowances can be traded among all sources participating in the EPA-administered cap-and-trade programs as intended. EPA discovered after review of other States' rules, but after Iowa had adopted its CAIR rules, that there was an issue related to the definition of “permitting authority” when it is revised to refer to a specific State's permitting authority.

In each of Iowa's rules for CAIR, the EPA model trading rules were revised to limit all references to “permitting authority” to refer to the Iowa Department of Natural Resources. This change is acceptable in most, but not all, instances under the current model rules. In certain definitions in the model rules incorporated by Iowa (i.e., “allocate” or “allocation,” “CAIR NO X allowance,” “CAIR SO 2 allowance,” and “CAIR NO X Ozone Season allowance”), it is important that the term “permitting authority” cover permitting authorities in all States that choose to participate in the respective EPA-administered trading programs. This is necessary to ensure that all allowances issued in each EPA-administered trading program are fungible and can be traded and used for compliance with the allowance-holding requirement in any State in the program.

On February 17, 2007, EPA provided a letter to Iowa that requested and outlined necessary definition revisions. EPA received a letter from Iowa on February 28, 2007, that provided a commitment to make the EPA suggested rule revisions as soon as is practicable upon publication of the final rule concerning the proposed Clean Air Mercury Rule (CAMR) Federal plan. On April 11, 2007, EPA received an electronic correspondence from Iowa stating that Iowa will, in any event, complete these rule revisions before January 1, 2008. The State will be able to simultaneously revise the “permitting authority” definition in all cap-and-trade rules for both CAIR and CAMR, and properly update the State's rule as necessary to meet the requirements of the EPA-administered cap-and-trade-program for mercury.

The final rule concerning the CAMR Federal plan is expected to be published before the earliest, major deadline for compliance with requirements for source owners and operators under the CAIR trading programs, i.e., the January 1, 2008, deadline for emissions monitoring requirements under the CAIR Annual Trading Program. EPA expects that, by timing adoption of the EPA requested rule revisions to be soon after the publication of the final rule concerning the CAMR Federal plan, the State will ensure the revisions to the definition of “permitting authority” will be completed prior to any of the major compliance deadlines for source owners and operators under the CAIR trading programs. In the event the final rule concerning the CAMR Federal plan is not published in the expected timeframe, the State will need to ensure the necessary State rule revisions are completed and submitted to EPA in advance of the January 1, 2008, monitoring deadline for the CAIR NO X Annual Trading Program.

To be clear, EPA notes that it is not proposing to approve the State's rule to comply with CAMR as part of this rulemaking. EPA will propose a separate rulemaking for the Iowa rule relating to CAMR.

The CAIR NO X annual and ozone season model trading rules both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and ozone season model rules are similar, there are some differences. For example, the NO X annual model rule (but not the NO X ozone season model rule) provides for a compliance supplement pool (CSP), which is discussed below and under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season model rule reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season model rule provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone season trading program. In addition, States have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program.

The provisions of the CAIR SO 2 model rule are also similar to the provisions of the NO X annual and ozone season model rules. However, the SO 2 model rule is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under CAA title IV. The SO 2 model rule uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO 2 cap-and-trade program, with each such allowance authorizing one ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO 2 cap-and-trade program.

EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for Federal rather than State implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs.

In the SIP revision, Iowa has chosen to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. Iowa has adopted a full SIP revision (with the revisions discussed above) that adopts, with certain allowed changes discussed below, the CAIR model cap-and-trade rules for SO 2 , NO X annual, and NO X ozone season emissions.

Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO X annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIP also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions.

States may establish in their SIP submissions a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X allowance allocation methodologies, States have flexibility with regard to: (1) The cost to recipients of the allowances, which may be distributed for free or auctioned; (2) the frequency of allocations; (3) the basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and (4) the use of allowance set-asides and, if used, their size.

Iowa has chosen to adopt generally the provisions of the CAIR NO X annual and CAIR NO X ozone season model trading rules concerning the allocation of allowances with two notable exceptions. Language is provided in Iowa's rules that states that allowances will be allocated in future years only “to meet the minimum timing requirements” specified in the Federal regulations. As explained in the proposed approval, EPA understands that the language is intended to mean that allocations will be determined by the dates and only for the years identified or described in 40 CFR 96.141 and 40 CFR 96.341. EPA did not receive any comments on this issue, and concludes that this understanding is a correct interpretation of Iowa's rules. Additionally, Iowa's CAIR NO X Annual and CAIR NO X ozone season rules establish permanent allocations for specified units designated as “existing units” or “new units” and do not include provisions of the EPA's model rules that call for adjusting the allocations for existing units to provide allocations for future, new units. EPA is taking final action to approve these variations from the model rule provisions because the changes are consistent with the flexibility that CAIR provides States with regard to allocation methodologies.

The CAIR establishes a compliance supplement pool to provide an incentive for early reductions in NO X annual emissions. The CSP consists of 200,000 CAIR NO X annual allowances of vintage 2009 for the entire CAIR region, and a State's share of the CSP is based upon the projected magnitude of the emission reductions required by CAIR in that State. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO X reductions during 2007 or 2008 beyond what is required by any applicable State or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls.

The CAIR annual NO X model trading rule establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in the States.

Iowa has not chosen to modify the provisions from the CAIR NO X annual model trading rule concerning the allocation of allowances from the CSP. Iowa has chosen to distribute CSP allowances using the allocation methodology provided in 40 CFR 96.143 and has adopted this section by reference.

The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015.

States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all.

Iowa has chosen to allow non-EGUs meeting certain requirements to opt into the CAIR trading programs by adopting by reference the entirety of EPA's model rule provisions for opt-in units in the CAIR SO 2 , CAIR NO X annual, and CAIR NO X ozone season trading programs.

EPA is taking final action to approve Iowa's full CAIR SIP revision submitted on August 15, 2006. Under this SIP revision, Iowa is choosing to participate in the EPA-administered cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. EPA has determined that the SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO X annual and NO X ozone season emissions, and 40 CFR 51.124(o), with regard to SO 2 emissions. EPA has determined that the SIP as revised will meet the requirements of CAIR. The Administrator of EPA will also issue, without providing an opportunity for a public hearing or an additional opportunity for written public comment, a final rule to withdraw the CAIR FIPs concerning SO 2 , NO X annual, and NO X ozone season emissions for Iowa. The Administrator's action will delete and reserve 40 CFR 52.840 and 40 CFR 52.841. EPA will take final action to withdraw the CAIR FIPs for Iowa in a separate rulemaking.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 action merely approves State law as meeting Federal requirements and would impose no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this 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 action approves 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 (Pub. L. 104-4).

This 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 approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This 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 submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. 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 CAA. 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 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. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 5, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Regulatory Information

FEMA did not publish a notice of proposed rulemaking for this regulation. Under both 5 U.S.C. 553(b)(A) and (b)(B), FEMA finds that this rule is exempt from notice and comment rulemaking requirements because this is a procedural rule involving agency organization and practice, and has no substantive effect on the public. This rule consists only of a technical clarifying amendment. Because this is a procedural rule, rather than substantive, this rule will become effective immediately upon publication as authorized under 5 U.S.C. 553(d).

The Federal Emergency Management Agency (FEMA), a component of the Department of Homeland Security (DHS), issues this rule to eliminate public confusion with respect to how FEMA applies its Touhy regulations. Touhy regulations, named after United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951), establish restrictions and procedures for demands on Federal agency employees for information or testimony in response to a subpoena or other demand in private litigation as to any information relating to material contained in the files of the Agency, or any information acquired as a part of the performance of that person's official duties or because of that person's official status.

Currently, FEMA has Touhy regulations at 44 CFR part 5 subpart F, Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information; and DHS has Touhy regulations at 6 CFR part 5 subpart C, Disclosure of Information in Litigation. DHS' regulation, at 6 CFR 5.41(b), provides that “[t]he provisions established by this subpart shall apply to all Department components that are transferred to the Department. Except to the extent a Department component has adopted separate guidance governing the subject matter of a provision of this subpart, the provisions of this subpart shall apply to each component of the Department.” There are some circumstances in which the DHS regulations address subject matter that is not addressed in FEMA's regulations. Therefore, as a matter of agency practice, FEMA applies DHS regulations when FEMA's regulations are silent, pursuant to the language of 6 CFR 5.41(b).

In an effort toward providing public notice of this agency practice, FEMA is amending its scope and applicability regulation at 44 CFR 5.80 to clarify for the public that DHS' Touhy regulations apply to any subject matter not already covered by FEMA's regulations, including but not limited to demands or requests directed to current or former FEMA contractors. FEMA specifically addressed the issue of demands or requests directed to current or former FEMA contractors because the agency is aware of particular confusion with respect to Title 44's silence on this subject matter. This regulatory change clarifies agency organization and practice and will have no substantive effect on the regulated public.

FEMA has prepared and reviewed this rule under the provisions of Executive Order 12866 (58 FR 51735, Oct. 4, 1993). Under Executive Order 12866, a “significant regulatory action” is subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. Section 3(f) of the Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more, or may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

As a DHS component, FEMA is subject to the Touhy provisions established by DHS at 6 CFR part 5 subpart C, except to the extent that FEMA has adopted separate guidance governing the subject matter of a provision of that subpart. As a result, DHS' regulations apply to any subject matter not already covered by FEMA's regulations, including but not limited to demands or requests directed to current or former FEMA contractors. In an effort at removing public confusion, FEMA is amending 44 CFR 5.80 to include language notifying the public of this existing agency practice and procedure. This regulatory change provides clarification with respect to agency organization and practice and has no substantive effect on the regulated public. Therefore, this rulemaking is not considered to be a significant regulatory action under section 3(f) of Executive Order 12866. This rule adheres to the principles of regulation as set forth in the Executive Order.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FEMA is not required to prepare a final regulatory flexibility analysis for this final rule because the agency has not issued a notice of proposed rulemaking prior to this action.

The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) implementing regulations governing FEMA activities at 44 CFR 10.8(d)(2)(ii) categorically exclude the preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions. This amendment provides clarifying information regarding administrative actions of the agency regarding the handling of demands on Federal agency employees for information or testimony in response to a subpoena or other demand in private litigation and is therefore categorically exempt under § 10.8(d)(2)(i). Because no other extraordinary circumstances have been identified, this rule will not require the preparation of either an environmental assessment or an environmental impact statement as defined by the National Environmental Policy Act.

Executive Order 13132, entitled “Federalism,” (64 FR 43255, published August 10, 1999), sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications; that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action. This rule provides clarification with respect to agency organization and practice and will have no substantive effect on the regulated public, therefore 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. It will not preempt any State laws. In accordance with section 6 of Executive Order 13132, FEMA determines that this rule will not have federalism implications sufficient to warrant the preparation of a federalism impact statement.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. This rule does not impose any new reporting or recordkeeping requirements, nor does it revise information collection requirements currently approved under the Paperwork Reduction Act of 1995.

FEMA has reviewed this rule under Executive Order 12988, “Civil Justice Reform” (61 FR 4729, published February 7, 1996). This rule meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Though this rule will not result in such an expenditure, FEMA does discuss the effects of this rule elsewhere in this preamble.

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, published February 16, 1994), FEMA incorporates environmental justice into its policies and programs. The Executive Order requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in programs, denying persons the benefits of programs, or subjecting persons to discrimination because of race, color, or national origin.

FEMA believes that no action under this rule will have a disproportionately high or adverse effect on human health or the environment as it contains only a clarifying amendment regarding agency organization and practice and has no substantive effect on the regulated public. Accordingly, the requirements of Executive order 12898 do not apply to this rule.

FEMA has sent this final rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, (“Congressional Review Act”) Public Law 104-121. This rule is not a “major rule” within the meaning of the Congressional Review Act. This rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of the United States-based enterprises to compete with foreign-based enterprises.

FEMA has analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or safety that might disproportionately affect children.

FEMA has reviewed this rule under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, published November 9, 2000). As this rule provides clarification with respect to agency organization and practice and has no substantive effect on the regulated public, 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.

FEMA has reviewed this rule under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” (53 FR 8859, published March 18, 1988) as supplemented by Executive Order 13406, “Protecting the Property Rights of the American People” (71 FR 36973, published June 28, 2006). This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630.

This document contains new or modified information collection requirements subject to the PRA. These will be submitted to OMB for review under § 3507 of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collections contained in this proceeding.

On September 29, 1999, the Commission issued an order ( Section 255 Order ) implementing the disability access provisions in sections 255 and 251(a)(2) of the Act (FCC 99-181), published at 64 FR 63235, November 19, 1999. The Section 255 Order included a Further Notice of Inquiry (NOI) , published at 64 FR 63277, November 19, 1999, which sought comment on applying accessibility requirements to Internet Protocol telephony and computer-based equipment that replicates telecommunications functionality. The NOI sought comment on the extent to which Internet telephony was impairing access to communications services among people with disabilities, the efforts manufacturers were taking to render new technologies accessible, and the degree to which these technologies should be subjected to the same disability access requirements as traditional telephony facilities.

On March 10, 2004, the Commission released a Notice of Proposed Rulemaking (FCC 04-28) , published at 69 FR 16193, March 29, 2004, seeking comment on issues relating to services and applications utilizing Internet Protocol. On June 15, 2007, the Commission released this Order (FCC 07-110) extending the disability access requirements that currently apply to telecommunications service providers and equipment manufacturers under section 255 of the Act to providers of “interconnected voice over Internet Protocol (VoIP) services,” as defined by the Commission, and to manufacturers of specially designed equipment used to provide those services, and extending the TRS requirements contained in 47 CFR 64.601 et seq. of the Commission's rules to interconnected VoIP providers. Copies of document FCC 07-110 and any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Document FCC 07-110 and any subsequently filed documents in this matter may also be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's duplicating contractor at their Web site: http://www.bcpiweb.com or call 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). Document FCC 07-110 can also be downloaded in Word and Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.html#orders under TRS Headlines (June 15, 2007).

Document FCC 07-110 contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in document FCC 07-110, as required by the PRA. Public and agency comments are due October 5, 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 specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

The Commission assessed the effects of imposing disability access requirements on interconnected VoIP providers and manufacturers, and of imposing TRS requirements on interconnected VoIP providers, and finds that there may be an increased administrative burden on businesses with fewer than 25 employees.

The Commission has taken steps to minimize the information collection burden for small business concerns, including those with fewer than 25 employees. For example, although the Commission requires covered entities to maintain records of their accessibility efforts that can be presented to the Commission to demonstrate compliance, the Commission does not delineate specific documentation or certification requirements for “readily achievable” analyses. In addition, by adopting general performance criteria, as opposed to accessibility standards or performance measurements specifying exactly how access must be achieved, the Commission's rules provide small entities flexibility in determining how best to manage their compliance with these rules. Moreover, by adopting the “readily achievable” standard that currently applies to telecommunications service providers and manufacturers, covered interconnected VoIP providers and manufacturers are required to render their services or products accessible only if doing so is “easily accomplishable and able to be carried out without much difficulty or expense.” Finally, because the information interconnected VoIP providers currently provide on the Telecommunications Reporting Worksheet (FCC Form 499-A) for purposes of the USF reporting requirements also will be used to determine these entities' TRS contribution, there will be no increased reporting burden on small businesses. These measures should substantially alleviate any burdens on businesses with fewer than 25 employees.

Section 255 of the Act requires manufacturers of “telecommunications equipment or customer premises equipment” to ensure that such equipment is accessible to and usable by individuals with disabilities, if readily achievable, and requires providers of a “telecommunications service” to ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable. In this Order , the Commission extends those disability access requirements that currently apply to telecommunications service providers and equipment manufacturers under section 255 of the Act and 47 CFR part 6, to providers of “interconnected voice over Internet Protocol (VoIP) services,” as defined by the Commission, and to manufacturers of specially designed equipment used to provide those services. The Commission adopts this measure under its Title I ancillary jurisdiction in order to give full effect to the accessibility policies embodied in section 255 of the Act, and to further the Commission's statutory mandate to make available a nationwide communications system that promotes the safety and welfare of all Americans. In addition, the Commission extends the TRS requirements contained in the Commission's regulations, 47 CFR 64.601 et seq. (subpart F), to providers of interconnected VoIP services, pursuant to section 225(b)(1) of the Act and the Commission's Title I ancillary jurisdiction. Among the TRS requirements extended to interconnected VoIP providers, the Commission requires such providers to contribute to the Interstate TRS Fund (Fund) under the Commission's existing contribution rules, and to offer 711 abbreviated dialing for access to relay services. Together, these measures will ensure that, as more consumers migrate from traditional phone service to interconnected VoIP services, the disability access provisions mandated by Congress under sections 255 and 225 of the Act will apply to, and benefit users of, interconnected VoIP services and equipment.

Pursuant to the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq. (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The Commission sought written public comment on the proposals in the notice, including comment on the Initial Regulatory Flexibility Analysis (IRFA). See IP-Enabled Services NPRM , 19 FCC Rcd at 4917, paragraph 91 and Appendix A. The Commission received three comments on the IRFA, which are discussed below. This FRFA conforms to the RFA. See 5 U.S.C. 604.

FCC 07-110 strengthens the Commission's disability access rules. Section 255 of the Act requires telecommunications service providers and equipment manufacturers to render their services or equipment accessible to persons with disabilities, if readily achievable. The Order extends the disability access requirements, that currently apply to telecommunications service providers and equipment manufacturers under section 255 of the Act, to providers of interconnected VoIP services and to manufacturers of specially designed equipment used to provide those services. In addition, the Order extends the TRS requirements contained in the Commission's regulations, 47 CFR 64.601 et seq. (subpart F), to providers of interconnected VoIP services. Among the TRS requirements extended to interconnected VoIP providers, the Commission requires such providers to contribute to the Interstate TRS Fund under the Commission's existing contribution rules, see 47 CFR 64.604(c)(5)(iii)(A), (B), and to offer 711 abbreviated dialing for access to relay services, see 47 CFR 64.603. Together, these measures will ensure that, as more consumers migrate from traditional phone service to interconnected VoIP services, the disability access provisions mandated by Congress under sections 255 and 225 of the Act will apply to, and benefit users of, interconnected VoIP services and equipment.

Comments Received in Response to the IP-Enabled Services NPRM. In this section, we respond to comments filed in response to the IRFA. To the extent comments raised general small business concerns during this proceeding, those comments have been addressed in the Order. The Commission disagrees with SBA and Menard that the Commission should postpone acting in this proceeding—thereby postponing extension of the application of the disability access and TRS contribution rules to interconnected VoIP providers—and instead should reevaluate the economic impact and the compliance burdens on small entities and issue a further notice of proposed rulemaking in conjunction with a supplemental IRFA identifying and analyzing the economic impacts on small entities, and less burdensome alternatives. See Comments of SBA at 2, 4, 6 (May 28, 2004); Comments of Menard at 2-5 (May 28, 2004); Reply of Menard at 4 (July 15, 2004).

The additional steps suggested by SBA and Menard are unnecessary, because small entities already had sufficient notice of the issues addressed in the Order , through comment sought by the IP-Enabled Services NPRM and the Section 255 NOI. Indeed, the Commission notes that a number of small entities submitted comments in this proceeding. The Commission has considered the economic impact on small entities as well as ways to minimize the burdens imposed on those entities, and, to the extent feasible, has implemented those less burdensome alternatives. See Order , FCC 07-110, section E of Appendix A.

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such terms which are appropriate to the activities of the agency and publishes such definitions(s) in the Federal Register .” 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).

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

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

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.

Wireless Carriers and Service Providers. 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 Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into its own definition of “small business.” SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. The Commission therefore has 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.

Wired Telecommunications Carriers. The SBA has developed a small business size standard for wireline firms within the broad economic census category, “Wired Telecommunications Carriers.” Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 2,432 firms in this category that operated for the entire year. Of this total, 2,395 firms had employment of 999 or fewer employees, and 37 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.

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 which a business is small if it has 1,500 or fewer employees. According to Commission data, 1,307 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,307 carriers, an estimated 1,019 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 the Commission's action.

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 which a business is small if it has 1,500 or fewer employees. According to Commission data, 859 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 859 carriers, an estimated 741 have 1,500 or fewer employees and 118 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 44 carriers have reported that they are “Other Local Service Providers.” Of the 44, an estimated 43 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 the Commission's action.

Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers, under which a business is small if it has 1,500 or fewer employees. According to Commission data, 184 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 181 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by the Commission's action.

Toll Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers, under which a business is small if it has 1,500 or fewer employees. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 853 have 1,500 or fewer employees and 28 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by the Commission's action.

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 which a business is small if it has 1,500 or fewer employees. According to Commission data, 657 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 653 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 the Commission's action.

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 which a business is small if it has 1,500 or fewer employees. According to Commission data, 330 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 309 have 1,500 or fewer employees and 21 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by the Commission's action.

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 which 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 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by the Commission's action.

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 which a business is small if it has 1,500 or fewer employees. According to Commission data, 104 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, 102 are estimated to have 1,500 or fewer employees and two have 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 the Commission's action.

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 which 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 this source, as of the end of June 2006, the number of 800 numbers assigned was 7,647,941, the number of 888 numbers assigned was 5,318,667, the number of 877 numbers assigned was 4,431,162, and the number of 866 numbers assigned was 6,008,976. We do 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, we estimate that there are approximately 7,647,941 small entity 800 subscribers, approximately 5,318,667 small entity 888 subscribers, approximately 4,431,162 small entity 877 subscribers, and approximately 6,008,976 small entity 866 subscribers.

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. 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, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by the Commission's action.

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, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by the Commission's action.

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. The Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

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.

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 which 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, 432 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 221 of these are small, under the SBA small business size standard.

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 which 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.” See Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Service, PR Docket No. 89-552, Third Report and Order and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 10943, 11068-70, paragraphs 291-295, 62 FR 16004 (April 3, 1997) ( 220 MHz Third Report and Order ).

A “small business” and a “very small business” are entities that, together with their affiliates and controlling principals, have average gross revenues not exceeding $15 million for $3 million, respectively, 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.

Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” and a “very small business” are entities with average gross revenues of $40 million or $15 million, respectively, for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity.

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 which a business is small if it has 1,500 or fewer employees. According to Commission data, 432 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 221 of these are small, under the SBA small business size standard.

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. See Amendment of Parts 20 and 24 of the Commission's Rules—Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap, WT Docket No. 96-59, Report and Order , 11 FCC Rcd 7824, 61 FR 33859 (July 1, 1996) ( PCS Order ). 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.” See PCS Order. These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. See, e.g. , Implementation of Section 309(j) of the Communications Act—Competitive Bidding, PP Docket No. 93-253, Fifth Report and Order, 9 FCC Rcd 5332, 59 FR 37566 (July 22, 1994). 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.

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. A “small business” and a “very small business” are entities that, together with affiliates and controlling interests, have average gross revenues of not more than $40 million or $15 million, respectively, for the three preceding years. 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.

220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a small business size standard for small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies, under which a small business is a wireless company employing no more than 1,500 persons. 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. Assuming this general ratio continues in the context of Phase I 220 MHz licensees, the Commission estimates that nearly all such licensees are small businesses under the SBA's small business size standard.

220 MHz Radio Service—Phase II Licensees. The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order, the Commission adopted a small business size standard for “small” and “very small” businesses for entities that, together with affiliates and controlling interests, have average gross revenues not exceeding $15 million or $3 million, respectively, for the three preceding years. See 220 MHz Third Report and Order, 12 FCC Rcd at 11068-70, paragraphs 291-295. The SBA has approved these small business size standards. Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. In the first auction, 908 licenses were auctioned in three different-sized geographic areas: Three nationwide licenses, 30 Regional Economic Area Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. Thirty-nine small businesses won licenses in the first 220 MHz auction. The second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses.

800 MHz and 900 MHz Specialized Mobile Radio Licenses. The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years, or that had revenues of no more than $3 million in each of the previous calendar years, respectively. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. The Commission assumes that the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz SMR bands. There were 60 winning bidders that qualified as small or very small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won in the 900 MHz auction, bidders qualifying as small or very small entities won 263 licenses. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities.

700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order, the Commission adopted a small business size standard for “small businesses” and “very small businesses” for entities that, together with affiliates and controlling interests, have average gross revenues not exceeding $15 million or $3 million, respectively, for the three preceding years. See Service Rules for the 746-764 MHz Bands, and Revisions to Part 27 of the Commission's Rules, WT Docket No. 99-168, Second Report and Order, 65 FR 17599 (Apr. 4, 2000). An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001 and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. The service is defined in section 22.99 of the Commission's Rules, 47 CFR 22.99. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). BETRS is defined in sections 22.757 and 22.759 of the Commission's Rules, 47 CFR 22.757 and 22.759. 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.

Air-Ground Radiotelephone Service. The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. The service is defined in section 22.99 of the Commission's Rules, 47 CFR 22.99. 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 we estimate that almost all of them qualify as small under the SBA small business size standard.

Aviation and Marine Radio Services. Small businesses in the aviation and marine radio services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of the Commission's evaluations in this analysis, we estimate that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined “small” businesses and “very small” businesses as entities that, together with affiliates and controlling interests, have average gross revenues not exceeding $15 million or $3 million, respectively, for the three preceding years. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards.

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.

39 GHz Service. The Commission created special “small business” and “very small business” size standards for 39 GHz licenses—entities that have average gross revenues of up to $40 million or $15 million, respectively, in the three previous calendar years. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses.

Wireless Cable Systems. Wireless cable systems use 2 GHz band frequencies of the Broadband Radio Service (“BRS”) (formerly Multipoint Distribution Service (“MDS”)) and the Educational Broadband Service (“EBS”) (formerly Instructional Television Fixed Service (“ITFS”)), to transmit video programming and provide broadband services to residential subscribers. These services were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. As described below, the SBA small business size standard for the broad census category of Cable and Other Program Distribution, which consists of such entities generating $13.5 million or less in annual receipts, appears applicable to BRS, EBS and LMDS. Other standards also apply, as described.

The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a “small business” as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition has been approved by the SBA in the context of MDS auctions. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Act, 47 U.S.C. 309(j). For these pre-auction licenses, the applicable standard is SBA's small business size standards for “other telecommunications” (annual receipts of $13.5 million or less). MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auction fall under the SBA small business size standard for Cable and Other Program Distribution. Information available to the Commission indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, the Commission estimates that there are approximately 850 small entity BRS providers, as defined by the SBA and the Commission's auction rules. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS). The Commission estimates that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of the licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small entities.

Local Multipoint Distribution Service. LMDS is a fixed broadband, point-to-multipoint, microwave service that provides for two-way video telecommunications. The Commission established “small business” and “very small business” size standards for LMDS licenses as entities that have average gross revenues not exceeding $40 million or $15 million, respectively, for the three preceeding years. The SBA has approved these small business size standards in the context of LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses in LMDS auctions. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, the Commission concludes that the maximum number of small LMDS licensees consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers.

218-219 MHz Service. The first auction of 218-219 MHz spectrum resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. In the 218-219 MHz Report and Order and Memorandum Opinion and Order, 64 FR 59656, the Commission established standards for a “small business” and a “very small business” as entities that, together with affiliates and controlling interests, have average annual gross revenues not exceeding $15 million or $3 million, respectively, for the three preceding years. These special small business size standards will be used, as appropriate, in future auctions of 218-219 MHz spectrum.

24 GHz—Incumbent Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. 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. These broader census data notwithstanding, the Commission believes that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is the Commission's understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity.

24 GHz—Future Licensees. With respect to new applicants in the 24 GHz band, the SBA approved small business size standards for a “small business” and “very small business,” which are entities that, together with affiliates and controlling interests, have average annual gross revenues not exceeding $15 million or $3 million, respectively, for the three preceding years. These size standards will apply to the future auction, if held.

Cable and Other Program Distribution. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. 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. Thus, under this size standard, the majority of firms can be considered small.

Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small.

Cable System Operators . The Act 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 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. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. The Commission notes that it neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore it cannot provide a more accurate estimate of the number of cable system operators that would qualify as small under this size standard.

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 $13.5 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, some of which 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. Since some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to all 24 of the OVS operators other than RCN might qualify as small businesses that may be affected by the rules and policies adopted herein.

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 $23 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 an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action.

Web Search Portals . The Commission's action pertains to VoIP services, which could be provided by entities that provide other services such as e-mail, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The Commission has not adopted a size standard for entities that create or provide these types of services or applications. However, the Census Bureau identified firms that “operate web sites that use a search engine to generate and maintain extensive databases of Internet addresses and content in an easily searchable format. Web search portals often provide additional Internet services, such as e-mail, connections to other web sites, auctions, news, and other limited content, and serve as a home base for Internet users.” The SBA developed a small business size standard for this category of $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, 342 firms in this category operated for the entire year. Of these, 303 had annual receipts of under $5 million, and 15 firms had receipts of between $5 million and $9,999,999. The Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action.

Data Processing, Hosting, and Related Services . Entities in this category “primarily * * * provid[e] infrastructure for hosting or data processing services.” The SBA developed a small business size standard for this category of $23 million or less in average annual receipts. According to Census Bureau data for 2002, 6,877 firms in this category operated for the entire year, 6,418 of which had annual receipts of under $10 million, and an additional 251 of which had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action.

All Other Information Services . “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” The Commission's action pertains to VoIP services, which could be provided by entities that provide other services such as e-mail, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA developed a small business size standard for this category of $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 155 firms in this category that operated for the entire year. Of these, 138 had annual receipts of under $5 million, and an additional four firms had receipts of between $5 million and $9,999,999. The Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action.

Internet Publishing and Broadcasting . “This industry comprises establishments engaged in publishing and/or broadcasting content on the Internet exclusively. These establishments do not provide traditional (non-Internet) versions of the content that they publish or broadcast.” The SBA developed a small business size standard for this census category of 500 or fewer employees. According to Census Bureau data for 2002, 1,362 firms in this category operated for the entire year. Of these, 1,351 employed 499 or fewer employees, and six firms employed between 500 and 999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action.

Software Publishers . These companies may design, develop or publish software and may provide other support services to software purchasers, such as providing documentation or assisting in installation. The companies may also design software to meet the needs of specific users. The SBA developed a small business size standard of $23 million or less in average annual receipts for all of the following pertinent categories: Software Publishers, Custom Computer Programming Services, and Other Computer Related Services. For Software Publishers, Census Bureau data for 2002 indicate that there were 6,155 firms in the category that operated for the entire year. Of these, 7,633 had annual receipts of under $10 million, and an additional 403 firms had receipts of between $10 million and $24,999,999. For providers of Custom Computer Programming Services, the Census Bureau data indicate that there were 32,269 firms that operated for the entire year. Of these, 31,416 had annual receipts of under $10 million, and an additional 565 firms had receipts of between $10 million and $24,999,999. For providers of Other Computer Related Services, the Census Bureau data indicate that there were 6,357 firms that operated for the entire year. Of these, 6,187 had annual receipts of under $10 million, and an additional 101 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of the firms in each of these three categories are small entities that may be affected by the Commission's action.

The disability access requirements we adopt today apply to manufacturers of specialized VoIP equipment and CPE. The following entities include those that may be affected by the actions taken in this Order .

Telephone Apparatus Manufacturing . The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing wire telephone and data communications equipment. These products may be standalone or board-level components of a larger system. Examples of products made by these establishments are central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, LAN modems, multi-user modems, and other data communications equipment, such as bridges, routers, and gateways.” The SBA has developed a small business size standard for Telephone Apparatus Manufacturing, which is: All such firms having 1,000 or fewer employees. According to Census Bureau data for 2002, 518 establishments in this category operated for the entire year. Of this total, 511 employed under 1,000, and an additional 7 employed 1,000 to 2,499. Thus, under this size standard, the majority of firms can be considered small.

Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing . The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA established firms having 750 or fewer employees as the small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. According to Census Bureau data for 2002, 1,041 establishments in this category operated for the entire year. Of this total, 1,010 employed under 500, and an additional 13 employed 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

Other Communications Equipment Manufacturing . The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing communications equipment (except telephone apparatus, and radio and television broadcast, and wireless communications equipment).” The SBA established firms having 750 or fewer employees as the small business size standard for Other Communications Equipment Manufacturing. According to Census Bureau data for 2002, there were a total of 503 establishments in this category that operated for the entire year. Of this total, 493 employed under 500, and 7 employed 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

SBA small business size standards are given in terms of “firms.” Census Bureau data concerning computer manufacturers, on the other hand, are given in terms of “establishments.” The Commission notes that the number of “establishments” is a less helpful indicator of small business prevalence in this context than would be the number of “firms” or “companies,” because the latter take into account the concept of common ownership or control. Any single physical location for an entity is an establishment, although that location may be owned by a different establishment. Thus, the census numbers provided below may reflect inflated numbers of businesses in the given category, including the numbers of small businesses.

Electronic Computer Manufacturing . This category “comprises establishments primarily engaged in manufacturing and/or assembling electronic computers, such as mainframes, personal computers, workstations, laptops, and computer servers.” The SBA has established firms having 1000 or fewer employees as the small business size standard for this category of manufacturing. According to Census Bureau data, 485 establishments in this category operated with payroll during 2002. Of these, 476 employed under 1,000, and an additional four employed 1,000 to 2,499. Consequently, the Commision estimates that the majority of these establishments are small entities.

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 established firms having 1000 or fewer employees as the small business size standard for this category of manufacturing. According to Census Bureau data, 170 establishments in this category operated with payroll during 2002. Of these, 164 employed under 500, and five employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Computer Terminal Manufacturing . “Computer terminals are input/output devices that connect with a central computer for processing.” The SBA established firms having 1000 or fewer employees as the small business size standard for this category of manufacturing. According to Census Bureau data, 71 establishments in this category operated with payroll during 2002, and all employed fewer than 1,000. The Commission estimates that all of these establishments are small entities.

Other Computer Peripheral Equipment Manufacturing . Examples of peripheral equipment in this category include keyboards, mouse devices, monitors, and scanners. The SBA established firms having 1000 or fewer employees as the small business size standard for this category of manufacturing. According to Census Bureau data, 860 establishments in this category operated with payroll during 2002. Of these, 851 employed under 1,000, and five employed 1,000 to 2,499. The Commission estimates that the majority of these establishments are small entities.

Audio and Video Equipment Manufacturing . These establishments manufacture “electronic audio and video equipment for home entertainment, motor vehicle, public address and musical instrument amplifications.” The SBA established firms having 750 or fewer employees as the small business size standard for this category of manufacturing. According to Census Bureau data, 571 operated with payroll during 2002. Of these, 560 employed under 500, and ten employed of 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Electron Tube Manufacturing . These establishments are “primarily engaged in manufacturing electron tubes and parts (except glass blanks).” The SBA developed a small business size standard of 750 or fewer employees for this category of manufacturing. According to Census Bureau data, 102 establishments in this category operated with payroll during 2002. Of these, 97 employed under 500, and one employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Bare Printed Circuit Board Manufacturing . These establishments are “primarily engaged in manufacturing bare ( i.e. , rigid or flexible) printed circuit boards without mounted electronic components.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 936 establishments in this category operated with payroll during 2002. Of these, 922 employed under 500, and 12 employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Semiconductor and Related Device Manufacturing . Examples of manufactured devices in this category include “integrated circuits, memory chips, microprocessors, diodes, transistors, solar cells and other optoelectronic devices.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 1,032 establishments in this category operated with payroll during 2002. Of these, 950 employed under 500, and 42 employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Electronic Capacitor Manufacturing . These establishments manufacture “electronic fixed and variable capacitors and condensers.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 104 establishments in this category operated with payroll during 2002. Of these, 101 employed under 500, and two employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Electronic Resistor Manufacturing . These establishments manufacture “electronic resistors, such as fixed and variable resistors, resistor networks, thermistors, and varistors.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 79 establishments in this category operated with payroll during 2002. All of these establishments employed under 500. The Commission estimates that all of these establishments are small entities.

Electronic Coil, Transformer, and Other Inductor Manufacturing . These establishments manufacture “electronic inductors, such as coils and transformers.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 365 establishments in this category operated with payroll during 2002, and all employed under 500. The Commission estimates that all of these establishments are small entities.

Electronic Connector Manufacturing . These establishments manufacture “electronic connectors, such as coaxial, cylindrical, rack and panel, pin and sleeve, printed circuit and fiber optic.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 321 establishments in this category operated with payroll during 2002. Of these, 315 employed under 500, and three employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Printed Circuit Assembly (Electronic Assembly) Manufacturing . These are establishments “primarily engaged in loading components onto printed circuit boards or who manufacture and ship loaded printed circuit boards.” The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 868 establishments in this category operated with payroll during 2002. Of these, 839 employed under 500, and 18 employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Other Electronic Component Manufacturing . The SBA developed a small business size standard of 500 or fewer employees for this category of manufacturing. According to Census Bureau data, 1,627 establishments in this category operated with payroll during 2002. Of these, 1,616 employed under 500, and eight employed 500 to 999. The Commission estimates that the majority of these establishments are small entities.

Fiber Optic Cable Manufacturing . These establishments manufacture “insulated fiber-optic cable from purchased fiber-optic strand.” The SBA developed a small business size standard of 1,000 or fewer employees for this category of manufacturing. According to Census Bureau data, 96 establishments in this category operated with payroll during 2002. Of these, 95 employed under 1,000, and one employed 1,000 to 2,499. The Commission estimates that the majority or all of these establishments are small entities.

Other Communication and Energy Wire Manufacturing . These establishments manufacture “insulated wire and cable of nonferrous metals from purchased wire.” The SBA developed a small business size standard of 1,000 or fewer employees for this category of manufacturing. According to Census Bureau data, 356 establishments in this category operated with payroll during 2002. Of these, 353 employed under 1,000, and three employed 1,000 to 2,499. The Commission estimates that the majority or all of these establishments are small entities.

Disability Access Requirements . ( See FCC 07-110 at paragraphs 16-20, 25-31). The Commission requires providers of interconnected VoIP services and specialized equipment, and CPE manufacturers, to comply with the disability access requirements contained in 47 CFR Part 6. Covered entities must maintain records pertaining to their disability access compliance efforts and designate, and submit contact information for, an agent for service of disability access-related inquiries or complaints. In addition, the rules we adopt today: (1) Require manufacturers of specialized interconnected VoIP equipment or CPE to ensure that their equipment is designed, developed and fabricated to be accessible to individuals with disabilities, if readily achievable, and, where such accessibility is not readily achievable, to ensure that the equipment is compatible with existing peripheral devices or specialized CPE, if readily achievable; (2) require interconnected VoIP providers to ensure that their service is accessible to individuals with disabilities, if readily achievable, and, where such accessibility is not readily achievable, to ensure that the service is compatible with existing peripheral devices or specialized CPE, if readily achievable; (3) require covered manufacturers and service providers to evaluate the accessibility, usability, and compatibility of covered services and equipment throughout the design and development process; and (4) require covered manufacturers and service providers to ensure that information and documentation provided in connection with equipment or services be accessible to people with disabilities, where readily achievable, and that employee training, where provided at all, account for accessibility requirements.

TRS Requirements . ( See FCC 07-110 at paragraphs 16, 32-33, 36-40). The Commission requires providers of interconnected VoIP service to comply with the TRS requirements contained in our regulations, 47 CFR 64.601 et seq. (subpart F). Among the TRS requirements that the Commission extends to interconnected VoIP providers, the Commission requires such providers to contribute to the Interstate TRS Fund under the Commission's existing contribution rules, and to offer 711 abbreviated dialing for access to relay services. These providers will contribute to the Interstate TRS Fund through monthly or annual payments into the Fund as specified in the Commission's TRS rules. Interconnected VoIP provider payments into the Fund will be assessed on the basis of revenue information these providers currently submit to the Universal Service Administrative Company (USAC) on the FCC Form 499-A.

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.

The Commission has considered how best to minimize any significant economic impact on small entities and, in FCC 07-110, has attempted to impose minimal regulation on small entities to the extent consistent with its goal of ensuring that individuals with disabilities have access to critical “POTS-like” communications services and equipment. The Commission has taken several steps to minimize the economic impact on small entities. For example, although the Commission requires covered entities to maintain records of their accessibility efforts that can be presented to the Commission to demonstrate compliance, the Commission does not delineate specific documentation or certification requirements for “readily achievable” analyses. In addition, by adopting general performance criteria, as opposed to accessibility standards or performance measurements specifying exactly how access must be achieved, the Commission's rules provide small entities flexibility in determining how best to manage their compliance with these rules. Moreover, by adopting the “readily achievable” standard that currently applies to telecommunications service providers and manufacturers, covered interconnected VoIP providers and manufacturers are required to render their services or products accessible only if doing so is “easily accomplishable and able to be carried out without much difficulty or expense.” Inasmuch as interconnected VoIP providers will be permitted to file the identical Telecommunications Reporting Worksheet (FCC Form 499-A) for the TRS reporting requirements that these providers currently file in connection with the USF reporting requirements, there will be no increased reporting burden on small businesses. Finally, interconnected VoIP providers whose interstate end-user revenues are deemed de minimis under the Commission's TRS rules and procedures in a given Fund year, will be required to contribute only $25 for that year. These measures should substantially alleviate any economic burdens on small entities.

In taking the actions described above, the Commission undertook to assess the interests of small businesses in light of the overriding public interest in, and statutory goal of, making critical communications services accessible by and to all Americans. Therefore, the Commission concluded that it was important for all providers of interconnected VoIP service and covered manufacturers, including small businesses, to comply with the rules adopted in FCC 07-110, and the Commission rejected alternative solutions that would have exempted small businesses from these requirements. The record indicated that exempting small carriers from these requirements would compromise the Commission's goal of ensuring access to critical communications services for all Americans.

The Commission will send a copy of FCC 07-110, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of FCC 07-110, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of FCC 07-110 and FRFA (or summaries thereof) will also be published in the Federal Register.

Pursuant to the authority contained in sections 1-4, 225, 251, 255, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 225, 251, 255, and 303(r), the report and order is adopted.

Pursuant to the authority contained in sections 1-4, 225, 251, 255, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 225, 251, 255, and 303(r), part 6 of the Commission's rules, 47 CFR part 6, is amended.

Pursuant to the authority contained in sections 1-4, 225, 251, 255, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 225, 251, 255, and 303(r), part 64 of the Commission's rules, 47 CFR part 64, is amended.

The rules and requirements contained herein shall become effective October 5, 2007, except for the amendments to 47 CFR 6.11(a) and (b), 6.18(b), 6.19, 64.604(a)(5), 64.604(c)(1) through (c)(3), 64.604(c)(5)(iii)(C), 64.604(c)(5)(iii)(E), 64.604(c)(5)(iii)(G), 64.604(c)(6)(v)(A)( 3 ), 64.604(c)(6)(v)(G), 64.604(c)(7), and 64.606(b), which contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). These rules and requirements shall become effective upon OMB approval. The Commission will publish a document in the Federal Register announcing the effective date of these rules and requirements.

The Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

In a Report and Order released on March 5, 2007, FCC 06-180, and published in the Federal Register on March 21, 2007, 72 FR 13189, the Federal Communications Commission adopted a new rule which contained information collection requirements subject to the Paperwork Reduction Act. The Report and Order stated that the rule changes requiring OMB approval would become effective immediately upon announcement in the Federal Register of OMB approval. On July 25, 2007, the Office of Management and Budget (OMB) approved the information collection requirements contained in 47 CFR 76.41. This information collection is assigned OMB Control No. 3060-1103. This publication satisfies the statement that the Commission would publish a document announcing the effective date of the rule changes requiring OMB approval.

The Idaho springsnail ( Pyrgulopsis (= Fontelicella ) idahoensis; Hydrobiidae) was first described by Pilsbry (1933, pp. 11-12) and placed in the genus Amnicola. Subsequently, Greg and Taylor (1965, pp. 103-110) placed the Idaho springsnail—along with the Harney Lake springsnail ( P. hendersoni ), and Jackson Lake springsnail ( P. robusta )—in the newly created Fontelicella genus and Natricola subgenus. After several taxonomic revisions, the subgenus Natricola was subsumed under the genus Pyrgulopsis (Hershler and Thompson 1987, pp. 28-31), the largest genus of freshwater mollusks in North America, comprised of over 120 described species (Liu and Hershler 2005, p. 284). The genus occurs in much of eastern North America, throughout western North America, and in parts of northern Mexico (Hershler and Thompson 1987, p. 30). The genus expresses its greatest diversity in the Great Basin of the western United States, where most species are endemic to springs, spring systems, and drainage basins (Hershler and Sada 2000, p. 367; Hershler and Sada 2002, p. 255).

In 2004, Hershler and Liu (2004, pp. 78-79) revised the taxonomic status of four Pyrgulopsis springsnail species—the Idaho springsnail, Harney Lake springsnail, Jackson Lake springsnail, and Columbia springsnail ( P. species A (unnamed))—by combining them into a single species and, following standard naming conventions, naming this combined taxon for the first taxon to be described among the four previously recognized species, the Jackson Lake springsnail (Walker 1908, p. 97). The authors reviewed morphological characters, mitochondrial DNA sequences, and nuclear DNA sequences to establish the revised taxonomic classification.

The methods employed by Hershler and Liu (2004, pp. 67-70) are considered contemporary in the field of genetics and are consistent with those used by numerous authors reconstructing phylogenies based on molecular evidence in general (Raahauge and Kristensen 2000, pp. 87-89; Jones et al. 2001, pp. 281; Attwood et al. 2003, pp. 265-266), and with western hydrobiid snails in particular (Hershler et al. 2003, pp. 358-359; Liu et al. 2003, pp. 2772-2775; Hurt 2004, pp. 1174-1177; Liu and Hershler 2005, p. 285). Further, it is the position of the American Malacological Society that the Hershler and Liu (2004) revised taxonomy sets the standard for understanding this group of springsnails until evidence is presented to refute this classification (Leal in litt. 2004). Therefore, Hershler and Liu (2004, pp. 66-81) represents the best available scientific and commercial data on the taxonomic status of the four previously recognized Pyrgulopsis springsnails. These springsnails are now considered to be a single species, the Jackson Lake springsnail—a species we recently determined, in a 12-month finding (71 FR 56938), does not warrant listing under the Act.

We published the final rule listing the Idaho springsnail as endangered on December 14, 1992 (57 FR 59244). At the time of listing we believed that the species was restricted to small populations in permanent, flowing waters of the mainstem Snake River from rm 518 (rkm 834) to rm 553 (rkm 890). In that rule, we described range reduction, the threat of dam construction, operation of existing hydroelectric dams, deteriorating water quality from multiple sources, and potential competition with the invasive New Zealand mudsnail ( Potamopyrgus antipodarum ) as the major threats to the species. We have not designated critical habitat for the Idaho springsnail.

On June 28, 2004, we received a petition from the Idaho Office of Species Conservation and the Idaho Power Company (IPC) requesting that the Idaho springsnail be delisted based on a recent taxonomic revision of the species. The petitioners also provided new Idaho springsnail scientific information, and contrasted this new information with information used in the 1992 Idaho springsnail listing decision (57 FR 59244). The petitioners stated that, based on this new information, threats to the Idaho springsnail identified in the 1992 listing rule have been eliminated, are being actively addressed by State and private entities, or are no longer relevant.

On August 5, 2004, we received a petition from Dr. Peter Bowler, the Biodiversity Conservation Alliance, the Center for Biological Diversity, the Center for Native Ecosystems, the Western Watersheds Project, and the Xerces Society, requesting that the Jackson Lake springsnail, Harney Lake springsnail, and Columbia springsnail be listed as either threatened or endangered species, either as individual species or, together with the Idaho springsnail, as a single new species. The listing petition discussed the recent taxonomic revision and acknowledged that the Jackson Lake springsnail, Harney Lake springsnail, Columbia springsnail, and Idaho springsnail may be one species, but contended that, whether considered individually or as one species, all four springsnails warranted the protection of the Act. (16 U.S.C. 1531 et seq. ) The petition cited habitat loss and degradation from development of springs, domestic livestock grazing, and groundwater withdrawal, among other factors, as threats to the continued existence of these springsnails.

On April 20, 2005, we published combined 90-day petition findings (70 FR 20512), stating that both petitions provided substantial information suggesting that delisting of the Idaho springsnail, or listing of the Jackson Lake springsnail (both the new and the old taxonomic grouping), the Harney Lake springsnail, and the Columbia springsnail, may be warranted.

On September 28, 2006, we published a warranted 12-month finding on the petition to delist the endangered Idaho springsnail along with a not warranted 12-month finding on the petition to list the Jackson Lake springsnail (both the new and the old taxonomic grouping), Harney Lake springsnail, and Columbia springsnail. Concurrent with these findings we published a proposed rule to remove the Idaho springsnail from the List of Endangered and Threatened Wildlife due to the change in its taxonomic status (71 FR 56938).

In our September 28, 2006, combined 12-month finding and proposed rule (71 FR 56938), we requested that all interested parties submit comments or information concerning the proposed delisting of the Idaho springsnail. We provided notification of this document through e-mail, telephone calls, letters, and news releases faxed and/or mailed to the appropriate Federal, State, and local agencies, county governments, elected officials, media outlets, local jurisdictions, scientific organizations, interested groups, and other interested parties. We also posted the document on our regional Web site.

We accepted public comments on the proposal for 60 days, ending November 27, 2006. By that date, we received comments from three parties, specifically one law firm representing the State of Idaho's Office of Species Conservation and IPC, and two organizations.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from four knowledgeable individuals who have expertise with the genus Pyrgulopsis , who possess a current knowledge of the geographic region where the species occurs, and/or are familiar with the principles of conservation biology. We received comments from four peer reviewers, three of whom are associated with academic research institutions and one who is employed by the U.S. Geological Survey (USGS).

We reviewed all comments received from peer reviewers and the public for substantive issues and new information regarding the proposed delisting of the Idaho springsnail. Substantive comments received during the comment period are addressed below.

We also received several comments from both the public and peer reviewers concerning threats to the Jackson Lake springsnail because our proposed rule to delist the Idaho springsnail due to taxonomic revision was published jointly with our 12-month finding on a petition to list the Jackson Lake springsnail (71 FR 56938). However, we addressed the threats to the Jackson Lake springsnail in our 12-month finding and found that listing was not warranted. Therefore, comments on the threats to the Jackson Lake springsnail are outside the scope of the proposed rule to delist the Idaho springsnail and those comments are not addressed in this final rule.

(1) Comment: The Idaho springsnail is more widespread than previously known at the time of its listing and is more resilient and less vulnerable to certain habitat-altering activities than previously thought.

Response: Although the Idaho springsnail is no longer recognized as a discreet taxon, the formerly recognized species is now known from more locations than at the time of listing and appears to be more resilient and less vulnerable to certain habitat-altering activities than previously thought. We appreciate the efforts of those who collected and synthesized information to expand our understanding of Pyrgulopsis taxonomy and ecology.

(2) Comment: Despite their conclusions, the data presented by Hershler and Liu (2004) illustrate the geographic, morphological, and genetic divergence of the Idaho springsnail from other springsnails in the region, and therefore the Idaho springsnail should continue to be protected under the Act.

Response: In a recent scientific article by Hershler and Liu (2004), published in the Veliger (an international, peer-reviewed scientific quarterly published by the California Malacozoological Society), the authors revised the taxonomic status of the Idaho springsnail, combining it with three other groups of Natricola springsnails. Hershler and Liu (2004, p. 77) concluded “three independent data sets (morphology, mitochondrial, and nuclear DNA sequences) congruently suggest that these four Natricola snails do not merit recognition as distinct species according to various currently applied concepts of this taxonomic rank.” For the reasons stated in the Background section of this final rule, we believe that Hershler and Liu (2004, pp. 66-81) represents the best available scientific and commercial data on the taxonomic status of the four Natricola springsnails and that the Idaho springsnail no longer constitutes a distinct species and does not warrant protection under the Act.

(3) Comment: The ecological and evolutionary divergence of the Idaho springsnail is significant and would easily qualify it for continued protection as a distinct population segment under the Act.

Response: Section 4(a)(1) of the Act outlines the factors for which we may list an endangered or threatened species. Section 3 of the Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a threatened species as “any species which is likely to become an endangered species throughout all or a significant portion of its range.” Section 3 of the Act also defines a species to include any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. Because springsnails are invertebrates, they do not qualify for protection as a distinct population segment under the Act.

(4) Comment: The Service should specify in its final rule that delisting of the Idaho springsnail is warranted due to recovery and original data for classification in error.

Response: Section 4(a)(1) of the Act and regulations (50 CFR part 424) issued to implement the listing provisions of the Act set forth the procedures for adding species to, or removing them from, Federal lists. The regulations at 50 CFR 424.11(d) state that a species may be delisted if: (1) The species is extinct or has been extirpated from its previous range; (2) the species has recovered and is no longer endangered or threatened; or (3) investigations show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error. Since the time of the Idaho springsnail listing in 1992, genetics research and additional survey effort have revealed that it is not a distinct species, but is now part of a combined taxon that is widely distributed (occurring in Wyoming, Oregon, Idaho, and Washington) and occurs in a variety of habitat types.

We acknowledge that numerous recovery actions were implemented for the Idaho springsnail, and we commend the State of Idaho, IPC, and other conservation partners for their ongoing efforts to conserve listed species, but the primary reason we are removing the Idaho springsnail from the List is its taxonomic reclassification.

(1) Comment: Data presented in the combined 12-month finding and proposed rule support the case for combining the Idaho springsnail under the Jackson Lake springsnail as recommended by Hershler and Liu (2004), but further ecological, biological, and population genetic evidence would greatly strengthen this case.

Response: We acknowledge that more scientific inquiry and subsequent information may strengthen the case for Hershler and Liu's (2004) taxonomic revisions with the Pyrgulopsis genus; however, our charge is to use the best available commercial and scientific information in our assessments. Hershler and Liu (2004) published their taxonomic review of the Idaho springsnail, the Harney Lake springsnail, the Jackson Lake springsnail, and the Columbia springsnail in a peer-reviewed scientific journal and determined that they were all one species. No other peer-reviewed scientific studies have been published that challenge the veracity or conclusions of Hershler and Liu (2004). Furthermore, it is the position of the American Malacological Society that the Hershler and Liu (2004) revised taxonomy sets the standard for understanding this group of springsnails (Leal in litt. 2004). Therefore, we believe that Hershler and Liu (2004) currently represents the best scientific information available with respect to Idaho springsnail taxonomy.

(2) Comment: The Service appears to be delisting the Idaho springsnail solely because it is more wide-ranging than thought at the time of listing, regardless of the fact that we know relatively little about the species as a whole.

Response: Although the range of the Jackson Lake springsnail was one factor that contributed to our “not warranted” petition finding for that species (see 71 FR 56938), our decision to delist the Idaho springsnail is based on the fact that it is not currently recognized as a valid species as defined by the Act.

After a review of all information available, we are removing the Idaho springsnail from the List of Endangered and Threatened Wildlife. Section 4(a)(1) of the Act and regulations (50 CFR part 424) issued to implement the listing provisions of the Act set forth the procedures for adding species to or removing them from Federal lists. The regulations at 50 CFR 424.11(d) state that a species may be delisted if (1) it becomes extinct, (2) it recovers, or (3) the original classification data were in error.

New scientific information has become available since we listed the Idaho springsnail in 1992. Most pertinent among this new information is a taxonomic reappraisal of Natricola snails, published by Hershler and Liu (2004), in a peer-reviewed scientific journal. Their study indicated that this formerly recognized species has been subsumed by a more widely distributed taxon. Because the Idaho springsnail is no longer considered a species as defined by the Act, it does not qualify for listing under the Act. The original classification data related to Pyrgulopsis taxonomy, although considered the best available information at the time of listing, are now thought to be in error.

When a listed species is subsumed by another entity, we believe it is prudent to examine the status of the new entity before delisting the subsumed taxon. In our combined 12-month finding and proposed rule we considered whether listing the Jackson Lake springsnail was warranted, and found that it was not (71 FR 56938).

This action removes the Idaho springsnail from the List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly under sections 7 and 9, no longer apply to the Idaho springsnail. Federal agencies no longer are required to consult with the Service under section 7 of the Act on actions they fund, authorize, or carry out that may affect the Idaho springsnail. There is no designated critical habitat for the Idaho springsnail.

This rule does not contain any new collections of information that require Office of Management and Budget (OMB) approval under the Paperwork Reduction Act. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

The Service has determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), need not be prepared in connection with actions adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit ( Douglas County v. Babbitt , 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. Therefore, we have solicited information from Native American Tribes during the comment period and informational briefing to determine potential effects on them or their resources that may result from the delisting of the Idaho springsnail.

A complete list of all references cited is available on request from the Snake River Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709.

The primary authors of this document are staff of the U.S. Fish and Wildlife Service (see References Section above).

On April 7, 2004, NMFS published a final rule to implement the HMS FMP (69 FR 18444) that included regulatory text at 50 CFR 660.704 requiring display of vessel identification markings for commercial fishing vessels and recreational charter fishing vessels that fish for HMS off, or land HMS into ports of, the States of California, Oregon, and Washington. The identification markings are consistent in size, shape, and location with vessel identification markings required on commercial fishing vessels operating under the Pacific Fishery Management Council's (Council) Groundfish FMP. The marking requirements at 50 CFR 660.704(b) state that the official number must be affixed to each vessel in block Arabic numerals at least 10 inches (25.40 cm) in height for vessels more than 25 ft (7.62 m) but equal to or less than 65 ft (19.81 m) in length; and 18 inches (45.72 cm) in height for vessels longer than 65 ft (19.81 m) in length. Markings must be legible and of a color that contrasts with the background.

The inclusion of HMS recreational charter vessels as part of the vessel identification requirements in the HMS FMP is not consistent with how vessel marking requirements are applied in the Groundfish FMP. This final rule exempts HMS recreational charter vessels from the marking requirements at 50 CFR 660.704(b), similar to exemptions granted under the Groundfish FMP. Additional information on the Council's recommendation to exempt HMS recreational charter vessels is contained in the proposed rule (72 FR 19453) for this action and will not be repeated here.

During the comment period for the proposed rule, NMFS received two comments.

Comment 1: A Washington State HMS recreational charter boat owner/operator wrote in favor of the proposed rule based on his opinion that current state and federal marking requirements are more than adequate to properly identify the HMS recreational charter fleet. He recommended adoption of the proposed vessel marking exemption without modification.

Response: NMFS agrees with the premise that HMS charter recreational vessels are adequately marked under existing state and federal marking requirements. Providing this exemption to the existing marking requirements would not impede law enforcement personnel in properly identifying HMS recreational charter vessels.

Comment 2: A licensed boat captain from Alaska wrote against the proposed exemption based on his presumption that exempting vessel marking requirements would allow unmarked vessels on the ocean thereby hindering law enforcement personnel in properly identifying boats that violate existing laws and regulations.

Response: The HMS recreational charter vessel marking exemption will not repeal applicable state and Federal (e.g., US Coast Guard) marking requirements already in place. The exemption is a repeal of additional HMS FMP marking requirements that are not necessary for enforcement.

NMFS has determined that the final rule is consistent with the HMS FMP and is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

The final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification or the economic impact of the rule. As a result, a regulatory flexibility analysis was not required and none was prepared.

Fisheries, Fishing, Reporting and recordkeeping requirements.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

In accordance with § 679.83(a)(1)(i), allocations of entry level rockfish to trawl catcher vessels participating in the rockfish entry level fishery in the Central Regulatory Area are first made from the Pacific ocean perch TAC. Trawl catcher vessels participating in the rockfish entry level program are allocated northern rockfish and pelagic shelf rockfish only if the amount of Pacific ocean perch available for allocation is less than the total allocation allowable for the trawl catcher vessels. NMFS has determined that the 2007 TAC of Pacific ocean perch meets or exceeds the total allocation of rockfish allowable for the trawl catcher vessels.

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2007 TAC of Pacific ocean perch allocated to trawl catcher vessels participating in the entry level rockfish fishery in the Central Regulatory Area will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 347 mt, and is setting aside the remaining 0 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch allocated to trawl catcher vessels participating in the entry level rockfish fishery in the Central Regulatory Area.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific ocean perch for trawl catcher vessels participating in the rockfish entry level fishery in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 31, 2007.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and § 679.83 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed the Pacific ocean perch fishery in the Western Regulatory Area in the GOA under § 679.20(d)(1)(iii) on July 22, 2007 (72 FR 40772, July 25, 2007) and the pelagic shelf rockfish fishery in the Western Regulatory Area in the GOA on July 23, 2007 (72 FR 40773, July 25, 2007).

NMFS has determined that as of July 31, 2007 approximately 790 mt remain in the 2007 Pacific ocean perch directed fishing allowance and 939 mt remain in the 2007 pelagic shelf rockfish directed fishing allowance in the Western Regulatory Area in the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C) and (a)(2)(iii)(D), and to fully utilize the 2007 TAC of Pacific ocean perch and pelagic shelf rockfish in the Western Regulatory Area in the GOA, NMFS is terminating the previous closure and is reopening directed fishing for Pacific ocean perch and pelagic shelf rockfish in the Western Regulatory Area in the GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the Pacific ocean perch and pelagic shelf rockfish fisheries in the Western Regulatory Area in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 31, 2007.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow the fishery for Pacific ocean perch and pelagic shelf rockfish in the Western Regulatory Area in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until August 16, 2007.

This action is required by § 679.25 and § 679.20 and is exempt from review under Executive Order 12866.