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.

We are proposing to make several amendments to the regulations. Our proposed amendments are discussed below by topic.

The definition of from in § 319.37-1 provides that an article is considered to be “from” any country or locality in which it was grown. (If an article has been grown in two or more countries or localities, APHIS inspectors consider that article to be “from” the country or locality from which the importation of that article poses the greatest pest risk when determining what, if any, restrictions apply to the importation of that article.) 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 have previously limited this exception to Canada because we believed that the pest risks associated with the importation of plants from Canada were better known to us than those associated with plants imported from other areas. However, articles from any area may be considered to be “from” that area if they were previously imported into the exporting area under conditions that are equivalent to those that we would require if the articles had been imported into the United States. From a phytosanitary perspective, if the articles met the conditions for importation into the United States when they were imported into the country from which they are subsequently exported, there is no reason to impose any conditions on their importation other than any that may apply to those articles exported from the exporting country. For the same reasons, the current definition of from may place an unnecessary burden on Canadian importers who wish to export imported plants to the United States; under the current definition, plants may only be considered to be “from” Canada if they have been grown there for a year, regardless of the duration for which regulations in § 319.37-7 require the plants to be grown in postentry quarantine.

Additionally, under Article 2 of the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement), the Animal and Plant Health Inspection Service (APHIS) must not discriminate between countries where identical or similar conditions prevail when regulating the importation of plants and plant products. The definition of from provides an exception for restricted articles that originated in another country or locality but have been grown in accordance with postentry growing conditions equivalent to those specified for the articles in Canada, but it does not offer that exception for regulated articles exported from any other country.

Therefore, we are proposing to amend the definition of from by providing that a plant would be considered 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. This change would provide exporters and importers with greater flexibility while continuing to prevent the introduction of plant pests into the United States.

The current definition of inspector in § 319.37-1 reads: “Any employee of the Plant Protection and Quarantine Programs, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator in accordance with law to enforce the provisions of the regulations in this subpart.” This definition does not reflect the reassignment of certain responsibilities from APHIS to the Department of Homeland Security's Bureau of Customs and Border Protection by the Homeland Security Act of 2002. Therefore, we are proposing to replace the current definition of inspector with a new definition that would read as follows: “Any individual authorized by the Administrator of APHIS or the Commissioner of Customs and Border Protection, Department of Homeland Security, to enforce the regulations in this part.”

Under the current 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. However, the current regulations in § 319.37-1 do not include a definition of preclearance, which makes the conditions under which sampling and inspection can take place in the country of origin somewhat ambiguous.

Therefore, we are proposing to add a definition of preclearance to § 319.37-1. The definition we are proposing 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). 1 It would read: “Phytosanitary certification and/or clearance in the country in which the articles were grown, performed by or under the regular supervision of APHIS.” This change would clarify the existing regulations.

In a final rule published in the Federal Register on August 14, 2000 (65 FR 49471-49472, Docket No. 00-063-1), the Secretary of Agriculture delegated to the Animal and Plant Health Inspection Service (APHIS) the authority to carry out title IV of the Agricultural Risk Protection Act of 2000, known as the Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7701 et seq. ). In that final rule, we also stated our intent to make any other changes deemed necessary as a result of the enactment of that law. We are proposing here to amend several definitions and add several other definitions in § 319.37-1 to make the definitions in the regulations consistent with those in the Plant Protection Act.

The proposed changes to the definitions are described below:

• The current definition of person, which reads “An individual, corporation, company, society, or association,” would be revised to read: “Any individual, partnership, corporation, association, joint venture, or other legal entity.”

• A new definition of plant would be added to read: “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.”

• The current definition of plant pest, which reads “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,” would be revised 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.”

• A new definition of the term State would be added to read: “Any of the several States of the United States, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the United States, or any other territory or possession of the United States.”

• Accordingly, the current definition of the term United States, which contains language similar to that in the proposed definition of State, would be revised to read, simply, “All of the States.”

In § 319.37-7, paragraph (g) contains a definition of State that applies to that section. This definition is substantively identical to the definition proposed above, which would apply to §§ 319.37-1 through 319.37-14. Accordingly, we are also proposing to remove § 319.37-7(g).

The Plant Protection Act definition of plant that we are proposing to add to the nursery stock regulations would include plants that are not regulated by the nursery stock regulations, such as nonvascular plants and noxious weeds. Accordingly, we would also add a new definition of regulated plant to list the plants regulated in the nursery stock regulations. We are also proposing to amend the definition of restricted article to refer to the proposed definition of regulated plant and to correct editorial errors in the definition.

The proposed definition of regulated plant would 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.” This definition encompasses all the plants regulated by the nursery stock regulations.

The definition of restricted article currently reads “Any class of nursery stock or other class of plant, root, bulb, seed, or other plant product, for or capable of propagation, excluding any prohibited articles listed in § 319.37-2 (a) or (b) of this subpart, excluding any articles subject to any restricted entry orders in 7 CFR part 321 ( i.e. , potatoes), and excluding any articles regulated in 7 CFR 319.8 through 319.24 or 319.41 through 319.74-7.” We are proposing to amend this definition so that it specifically includes only regulated plants, as defined above. In addition, the reference to § 319.74-7 in the current definition would be changed to § 319.74-4, because the sections that had followed § 319.74-4 were removed in a final rule effective and published in the Federal Register on September 25, 1997 (62 FR 50229-50231, Docket No. 95-082-2). We would also delete the reference to 7 CFR part 321, as the restrictions on the importation of potatoes that had been located in 7 CFR part 321 were moved into the nursery stock regulations in a final rule published in the Federal Register on September 25, 1997 (62 FR 50237-50239, Docket No. 97-010-2) and effective on October 27, 1997. We would change the citation “319.24” to read “319.24-5,” to indicate that all the sections in the corn diseases subpart are included in that range. Finally, we would indicate that articles regulated by the noxious weeds regulations in 7 CFR part 360 are excluded from the definition, since they are regulated separately from nursery stock.

Thus, the proposed definition of restricted article would read: “Any class of nursery stock or other regulated plant, root, bulb, seed, or other plant product, for or capable of propagation, excluding any prohibited articles listed in § 319.37-2(a) or (b) of this subpart, and excluding any articles regulated in §§ 319.8 through 319.24-5 or 319.41 through 319.74-4 and any articles regulated under part 360 of this chapter.” These changes would update the regulations and make them more consistent.

We are proposing to add articles of Rubus spp. from Europe not meeting the conditions for importation in § 319.37-5(f) to the list of prohibited articles found in the table in § 319.37-2(a). In § 319.37-5, paragraph (f) requires that Rubus spp. from Europe must be accompanied at the port of first arrival in the United States by a phytosanitary certificate containing an additional declaration that the articles have been found by the plant protection service of the country of origin to be free of Rubus stunt agent, based on visual examination and indexing of the parent stock. Rubus stunt agent affects the yield, vitality, and quality of plants of the genus Rubus, which include raspberry and blackberry. Although it is primarily transmitted along insect vectors, the disease can be transmitted through propagative material.

If articles of Rubus spp. from Europe are not accompanied by a phytosanitary certificate with the above additional declaration at the port of first arrival in the United States, they should be denied entry to prevent the possible introduction of this disease. However, nothing in the regulations as they now stand specifically prohibits the importation of Rubus spp. from Europe that are not accompanied by the phytosanitary certificate required in § 319.37-5(f). To correct this oversight, we are proposing to add articles of Rubus spp. from Europe that do not meet the conditions for importation in § 319.37-5(f) of the regulations to the list of prohibited articles. Prohibiting imports of Rubus spp. from Europe that are not accompanied by a phytosanitary certificate with the proper additional declaration would help to ensure that Rubus stunt agent is not introduced into the United States.

We are proposing 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.” Such plants are minimally exposed to plant diseases and pests that may exist in the area surrounding its nursery of origin. Plants in vitro have been found to pose an extremely low risk of introducing plant pests into the United States. We believe, therefore, that several restrictions currently in place on the importation of plants in vitro are now unnecessary. Thus:

• We are proposing 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.

• Because we are proposing to exempt shipments of plants in vitro from the permit requirement, the changes we are proposing to make to the current list of ports of entry in § 319.37-14, discussed below under the heading “Federal Plant Inspection Stations and Other Ports of Entry,” would 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 are also proposing 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 would add a definition of plants in vitro to the regulations in § 319.37-1. The definition would be identical to the IPPC definition quoted above. We would also remove the reference in paragraph (a)(5) of § 319.37-3 to “sterile cultures of orchid plants,” as these qualify as plants in vitro , and we would correct the paragraph to indicate that seeds and bulbs whose importation is otherwise prohibited or restricted by the regulations are not exempt from the permit requirement.

In a related matter, we are also proposing to amend § 319.37-8(c) of the regulations, which states: “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 are proposing 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 would revise this paragraph to simply read: “Plants in vitro may be imported in their growing media.”

Removing these restrictions would make plants in vitro generally admissible without restrictions, providing U.S. importers of plants in vitro with greater flexibility without increasing the risk of plant pest introduction into the United States.

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 are proposing to additionally require that the phytosanitary certificate include the genus and species name of the restricted article that it accompanies.

The IPPC's Guidelines for Phytosanitary Certificates (ISPM publication number 12) state that phytosanitary certificates “should identify plants and plant products using accepted scientific names, at least to genus level but preferably to species level.” 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. It could also result in savings for importers, as eliminating the need for inspectors to make a species identification of restricted articles offered for importation could allow their shipments to be processed more quickly and rejected less frequently.

For example, the regulations in § 319.37-5(b) allow the importation of Prunus spp. that are immune to plum pox virus under different conditions than the importation of species that are not immune to the virus. When an article of Prunus spp. is inspected at the port of entry, it can be difficult to determine whether the article is from a species that is resistant to plum pox. As a result, inspectors often must spend significant amounts of time making that determination, which can cause a delay in releasing the article. If the inspector cannot make such a determination, the shipment of Prunus spp. must be rejected. Requiring that both the genus and species name be listed on the phytosanitary certificate offered for importation would eliminate both the burden that making a species determination imposes on inspectors and the costs that delayed or rejected shipments impose on importers.

In addition, requiring that phytosanitary certificates include the genus and species names of the restricted articles that they are accompanying would allow APHIS to collect data from phytosanitary certificates about the number, size, and volume of imports of nursery stock into the United States. Currently, we lack such data, which can make it difficult to accurately assess the potential impact of any changes we may consider making to the nursery stock regulations. Collecting genus and species data from phytosanitary certificates could enable us to promulgate regulations that take into account the current importation of nursery stock more completely.

We are also proposing to amend paragraph § 319.37-4(a) of the regulations 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 national plant protection organization 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. The expiration date would be 4 weeks after the issuance of the phytosanitary certificate held by the national plant protection organization 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. Typically, these shipments are brought to the United States from the Netherlands by individuals carrying the bulbs in their luggage. These shipments are not precleared by APHIS, but must be cleared at the port of entry; the preclearance process and the clearance process at the port of entry involve the same steps and provide equivalent phytosanitary security. Currently, bulbs that come to the United States in that manner must be accompanied by a phytosanitary certificate with the additional declaration described above; if they do not have the phytosanitary certificate, they are confiscated upon arrival in the United States.

The special certificate we are proposing would be easier for individuals to obtain than a full phytosanitary certificate while providing the same assurance that the bulbs are free of golden nematode and potato cyst nematode. 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. Using this certificate, individuals would be able to import small shipments of bulbs from the Netherlands into the United States more easily without compromising phytosanitary safeguards.

We are proposing 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). CFIA would assign each exporter that registers with the program an establishment identification number. CFIA would provide a list of establishment identification numbers, along with the names, locations, and telephone numbers of the establishments to which the identification numbers correspond, to APHIS before the start of the seed shipping season and regularly throughout the shipping season.

Participants in the seed export program would be required by CFIA to demonstrate that shipments of seed can be traced back to their original seed lots and seed testing records; demonstrate that seed that does not meet U.S. standards is consistently separated from seed that does; implement quality assurance systems at the production facility, with a descriptive manual available for review by CFIA; submit to annual audits of the quality assurance system; and implement any other necessary safeguards.

Certain documents would be required in lieu of a phytosanitary certificate for Canadian exporters participating in CFIA's seed export program.

• Each shipment of seed exported under this program would be accompanied by an export certification document. The information in this document would be provided by the seed exporter. This document would show, among other information, the scientific name of the seed, the common name of the seed, the country of origin, and the establishment identification number. The document would also contain all information required by 7 CFR part 361, “Importation of Seed and Screenings Under the Federal Seed Act,” including the lot number of the seed.

• Shipments of agricultural or vegetable seeds, as listed in the Federal Seed Act regulations in 7 CFR part 361, would be accompanied by a document agreed upon by CFIA and APHIS and provided by CFIA that would certify that the relevant requirements of the Federal Seed Act regulations had been met.

• Shipments of other seeds (i.e., seeds that are not agricultural or vegetable seeds) that are exported from Canada to the United States would be accompanied by a document agreed upon by CFIA and APHIS and provided by CFIA that would certify that the seed had been inspected for plant pests.

Currently, exporters of Canadian seed must provide a phytosanitary certificate as required under the regulations in § 319.37-4 and a different set of documents as required in 7 CFR part 361. The information requirements of the two parts overlap to some extent, which results in duplicative paperwork for exporters of Canadian seed. Because of this, Canada requested that we establish this seed importation program to streamline our requirements; we reviewed the risks associated with establishing such a program and found that they were similar to the risks associated with current importations if the program operated under the controls described above. Establishing this program would eliminate duplicative paperwork requirements while continuing to ensure that seeds imported from Canada do not introduce plant pests or noxious weeds into the United States.

We are also proposing to remove all references to the “Plant Protection Division of Agriculture Canada” in § 319.37-4 and replace them with references to the Canadian Food Inspection Agency to update the regulations.

At this time, we are not proposing to establish similar seed importation programs for seeds from countries other than Canada. If another country were to request that APHIS establish an importation program for seed from that country and provided data indicating that importing seed from that country under such a program would pose a risk equivalent to that associated with current importations of seed from that country, we would consider establishing such a program.

We are proposing 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 are proposing to require this additional declaration on the phytosanitary certificate accompanying V. corymbosum plants because virulent strains of blueberry scorch carlavirus have been found that only exist in Canada. This requirement would ensure that V. corymbosum plants imported from Canada are free of this dangerous virus while continuing to allow importation of plants that have been determined to be free of this virus.

For the reasons described above in the discussion of prohibiting the entry of articles of Rubus spp. from Europe that lack the appropriate phytosanitary certificate, we are also proposing to add V. corymbosum plants from Canada that do not meet the requirements of proposed § 319.37-5(t) to the list of prohibited articles in § 319.37-2(a).

We are proposing 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. These programs would require that growers employ several safeguards to ensure that pests present in the exporting countries are excluded from 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 Cornutiplusia circumflexa . In the case of Israel, all plants except bulbs, dormant perennials, plants in vitro , 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. We anticipate that most U.S. imports under these programs would be plant cuttings, which are included in the proposed definition of plant in this document.

Under this proposal, the national plant protection organization of the country of origin, the growers in the country of origin, and APHIS would jointly implement the following safeguards to ensure that quarantine pests are not present in shipments of approved plants.

The national plant protection organization of the plants' country of origin would have to issue a phytosanitary certificate of inspection that would accompany any approved plants from the country of origin. This certificate would have to contain additional declarations that the plants were produced in an approved production site, that the production site is operated by a grower participating in the export program for approved plants established by the relevant national plant protection organization, and that the plants were grown under conditions specified by APHIS to prevent infestation with the relevant quarantine pests.

Growers in the programs would register with, and be approved by, the national plant protection organization of their country. Growers would be required to enter into a formal agreement wherein they agree to participate in and follow the export program for approved plants established by the national plant protection organization.

Growers would be required to meet the following requirements with respect to their facilities and growing practices:

• Plants destined for export to the United States would have to be produced in a production site devoted solely to production of such plants.

• The production sites in which such plants are produced would have to be registered with the national plant protection organization. Such production sites would employ safeguards agreed on by APHIS and the national plant protection organization to ensure the exclusion of the relevant quarantine pest or pests. For Canary Islands production sites, these safeguards would include, but would not be limited to, prescribed mesh screen size (if the production site is a screenhouse) and automatically closing doors. For Israeli production sites, these safeguards would include, but not be limited to, insect-proof screening over openings and double or airlock-type doors. Any rips or tears in any insect-proof screening would have to be repaired immediately.

• Each production site in which plants destined for export to the United States are grown would have to have at least 1 blacklight trap for one year following any of the following events: The construction of a production site; the entry of a production site into the approved plants export program; the replacement of the covering of the production site; or the detection and repair of a break or tear in the plastic or screening in the production site.

APHIS inspectors and national plant protection organization inspectors would perform the inspections described below, along with any others they may deem necessary. The inspections that would be required for plants and production sites in the Canary Islands are somewhat different from those that would be required for plants and production sites in Israel.

In the Canary Islands:

• The national plant protection organization of Spain would inspect the plants and the production site for pests during the growing season and during packing.

• Packing materials and shipping containers would be inspected and approved by APHIS to ensure that they do not introduce pests of concern to the plants.

• Either APHIS or the national plant protection organization of Spain would inspect the production site of approved plants destined for export to the United States to ensure that they meet standards of sanitation agreed upon by APHIS and the national plant protection organization of Spain.

• Inspectors from both APHIS and the national plant protection organization of Spain would have access to the production site as necessary to ensure that growers are employing the proper safeguards against infestation of H. armigera, C. chalcites , and C. circumflexa , and that those safeguards are correctly implemented.

• The national plant protection organization of Spain would provide APHIS with access to the list of registered and approved growers at least annually.

In Israel:

• The national plant protection organization of Israel would inspect the plants and the production site weekly to ensure that no quarantine pests are present.

• Plants would be inspected to ensure that they are free of quarantine pests before being allowed into the production site.

• The national plant protection organization of Israel would inspect the plants to ensure that no quarantine pests are present prior to export.

• Packing materials and shipping containers would be inspected and approved by APHIS to ensure that they do not introduce pests of concern to the plants.

• Either APHIS or the national plant protection organization of Israel would inspect the production site of the approved plants destined for export to the United States to ensure that they meet standards of sanitation approved by APHIS.

• Inspectors from both APHIS and the national plant protection organization of Israel would have access to the production site as necessary to ensure that growers are employing the safeguards and procedures prescribed by the program and that those safeguards and procedures are correctly implemented.

• The national plant protection organization of Israel would provide APHIS with access to the list of registered and approved growers at least annually.

Growers would become ineligible for participation in the export programs and their production sites would lose approved status upon slightly different occurrences for each country:

• Growers in the Canary Islands would lose eligibility if live C . circumflexa (or any other moth of the family Noctuidae) are found in a production site. Israeli growers would lose eligibility if live S . littoralis are found in a production site.

• Growers in the Canary Islands would lose eligibility if live C . circumflexa (or any other moth of the family Noctuidae) are found in a shipment of plants. An Israeli grower would lose eligibility if live S . littoralis are found at port inspection two times during the same shipping season in shipments from that grower.

• Growers in both the Canary Islands and Israel could lose eligibility if they violate the requirements of the export program established by their national plant protection organizations.

• A grower in either country could be reinstated, and the grower's production sites may regain approved status, by requesting reapproval and submitting a detailed report describing the corrective actions taken by the grower. The national plant protection organization and APHIS would have to concur in approving the report and the corrective actions.

APHIS would have the option to terminate either program if there are repeated violations of procedural or phytosanitary requirements.

The government of the country in which the approved plants are produced would also have to enter into a trust fund agreement with APHIS before each growing season. The government of the country in which the approved plants are produced or its designated representative would be required to pay in advance all estimated costs that APHIS would expect to incur through its involvement in overseeing the execution of the requirements of the certification programs described below. These costs would include administrative expenses incurred in conducting the services enumerated below and all salaries (including overtime and the Federal share of employee benefits), travel expenses (including per diem expenses), and other incidental expenses incurred by the inspectors in performing these services. (Specific provisions for making payments to these proposed trust funds may be found in the rule portion of this document.)

For the reasons described above in the discussion of prohibiting the entry of articles of Rubus spp. from Europe that lack the appropriate phytosanitary certificate, we are also proposing to add approved plants from the Canary Islands and Israel that do not meet the requirements of proposed § 319.37-5(u) and proposed § 319.37-5(v), respectively, to the list of prohibited items in § 319.37-2(a).

The safeguards employed in these programs, combined with the mandatory inspections of the plants at the port of first arrival in the United States, would ensure that approved plants could be safely imported into the United States from production sites in these locations.

We are proposing to reorganize the regulations in § 319.37-6 so that the information in this section is presented in a table. Section 319.37-6 now contains six paragraphs that are largely composed of the same text; the variations between paragraphs are found in the seeds and bulbs being treated, the countries or localities from which seeds and bulbs that must be treated originate, the pests for which the commodity must be treated, and the time at which the treatment must be performed. We believe that presenting this information in tabular form will improve the clarity and usability of the regulations.

In addition, the regulations in § 319.37-6 provide that certain seeds and bulbs from specific foreign regions must be treated for possible infestation with various plant pests in accordance with the applicable provisions of 7 CFR part 305 at the time of importation into the United States or at the time of arrival at the port of first arrival in the United States. However, the regulations in § 319.37-13(c) specify conditions under which treatments required under the regulations may be performed outside the United States. The current regulations in § 319.37-6 do not reflect the fact that treatments of regulated articles may be administered outside the United States. Therefore, we are proposing to amend § 319.37-6 to indicate that treatment of regulated articles may be administered outside the United States. APHIS will retain the option to require treatment within the United States of regulated articles that were treated prior to importation.

Finally, all the commodities listed in § 319.37-6 are required to be treated either at “the time of arrival at the port of first arrival in the United States” or “at the time of importation into the United States.” These phrases are substantively equivalent. Rather than set this information out in the table and preserving the present wording of this requirement from each paragraph in this section, we are proposing to add a paragraph after the table that would indicate that any articles not treated outside the United States would have to be treated at the time of importation into the United States.

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 § 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 State except under the conditions described in § 301.52-3.

Therefore, we are proposing to allow kenaf seed from Mexico to be imported into pink bollworm generally infested areas in the United States without treatment. Kenaf seed from Mexico that would be 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. This change would harmonize the requirements of our regulations on foreign material that could spread pink bollworm with those of our domestic regulations, as required under the SPS Agreement, without increasing the likelihood that pink bollworm could spread to noninfested areas of the United States.

Although kenaf seed may be imported into the United States from countries other than Mexico with the treatment currently referred to in § 319.37-6(a), we are not proposing to allow importation of untreated kenaf seed into generally infested areas from countries other than Mexico. The available evidence indicates that pink bollworm is the only pest of concern for shipments of kenaf seed from Mexico; we do not have evidence that pink bollworm is the only pest of concern for shipments of kenaf seed from any other place. We would consider requests to allow shipments of untreated kenaf seed into generally infested areas from other countries if the available evidence indicated that pink bollworm was the only pest of concern for shipments of kenaf seed from those countries.

Under the current regulations in § 319.37-7(a), Hydrangea spp. from Canada imported into the United States are not required to be grown under postentry quarantine conditions. However, under the current definition of from in § 319.37-1, an article imported into Canada from another country or locality that is subject to postentry quarantine requirements is considered to be solely from Canada if it was grown in Canada under postentry growing conditions equivalent to those specified in § 319.37-7 and meets certain other conditions. The term “equivalent,” as it is used here, refers not to the specific postentry quarantine conditions imposed but their effectiveness at reducing the risk of pest introduction.

CFIA requires that Hydrangea spp. imported into Canada from another country or locality be grown in Canada under postentry growing conditions for 9 months. We do not currently recognize Canada's 9-month postentry growing period for Hydrangea spp. to be as effective at reducing pest risk as the postentry quarantine conditions specified in § 319.37-7 that apply to the importation of Hydrangea spp. from all countries except Canada and Japan, because the regulations in that section specify that all plants required to be grown in postentry quarantine, including Hydrangea spp. from all countries except Canada and Japan, must be grown in postentry quarantine conditions for 2 years after the time of importation into the United States. Therefore, Hydrangea spp. from another country or locality that are grown in Canada are not considered to be from Canada and are subject to the postentry quarantine requirements in § 319.37-7. (The proposed revision of the definition of from described above would not change this, as that definition would require that Hydrangea spp. be grown in conditions we recognize as equivalent to those conditions under which they would be grown if imported directly into the United States.)

CFIA has recently requested that we add specific provisions for postentry quarantine growing agreements for plants of Hydrangea spp. to § 319.37-7(d) that would effectively reduce the postentry quarantine period for Hydrangea spp. from 2 years to 9 months. This request was reviewed by U.S. Department of Agriculture plant pathologists, with particular attention to the biology of the pest of concern, Aecidium hydrangeae-paniculatea . Their review of the available scientific evidence found that 9 months is an adequate amount of time to allow detectable symptoms of the disease to express themselves if the disease is present, which is the purpose of postentry quarantine.

Therefore, we are proposing to add a new provision in § 319.37-7(d)(7)(ii) that would require 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. ( Hydrangea spp. from Japan would continue to be prohibited from being imported or offered for entry into the United States under § 319.37-2(a).) With this proposed change, Canada's 9-month postentry growing period for Hydrangea spp. would be equivalent to the postentry growing conditions that would be specified in § 319.37-7; therefore, Hydrangea spp. from another country or locality that are grown in postentry quarantine in Canada would be considered to be from Canada and would not be required to be grown under postentry quarantine conditions after they are imported into the United States. (While the current definition of from indicates that a restricted article can be considered to be from Canada only after it is grown in Canada for 1 year, the proposed amendments of the definition of from , discussed earlier in this proposed rule, would eliminate that restriction, leaving the 9-month postentry quarantine period as the only restriction on the importation of Hydrangea spp. from Canada.)

The proposed change would relieve a restriction on the importation of Hydrangea spp. into the United States that does not appear to be necessary.

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 Argentina, Brazil, Canada, Canary Islands, Chile, Columbia, Europe, Republic of South Africa, Uruguay, Venezuela, and all countries, territories and possession 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 are proposing 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.

The pest of concern with regard to imported articles of Chrysanthemum spp., Dendranthema spp., Leucanthemella serotina , and Nipponanthemum nipponicum is chrysanthemum white rust (CWR). CWR is caused by Puccinia horiana Henn., a filamentous fungus and obligate parasite. CWR is not established in the United States and is a disease of quarantine significance. This disease has the potential to be extremely damaging to the commercial horticulture and florist industries if it becomes established in greenhouses within the United States. The postentry quarantine for articles of Chrysanthemum spp., Dendranthema spp., Leucanthemella serotina , and Nipponanthemum nipponicum is intended to allow symptoms of the disease, if it is present, to express themselves, so that any restricted articles that might be affected with CWR can be prevented from entering U.S. commerce.

PPQ's Center for Plant Health Science and Technology has reviewed the available evidence regarding the time within which CWR will express symptoms. Although substantial evidence indicates that articles affected with CWR will express symptoms within 2 months, meaning that 2 months would be an adequate postentry quarantine period for these articles, not all the available evidence confirms that. We are proposing 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.

Best management practices programs for these articles would be designed to ensure that CWR, if it is present on these articles when they are imported into the United States, is not introduced to the wider environment. A best management program would include several basic elements, including:

• A code of conduct or documented standard operating procedures that include pest control practices, inspection and testing, and recordkeeping;

• Oversight and audits by a professional organization or a State agricultural organization to ensure compliance with the agreed-upon code of conduct or standard operating procedures;

• Some form of Federal oversight; and

• Penalties and remedial action for noncompliance.

We would evaluate best management programs for their effectiveness at ensuring that any CWR that might be present on these articles would not be introduced into the wider environment.

This change would reduce the cost of postentry quarantine for importers of those restricted articles while continuing to protect against the introduction of CWR into the United States.

We are proposing 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 have 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. (Production sites in the area of Canada where potato cyst nematodes are present are not eligible to participate in the Canadian greenhouse-grown plants program in § 319.37-4(c) due to the presence of the potato cyst nematodes, so all articles imported into the United States from these production sites are required to be accompanied by a phytosanitary certificate under § 319.37-4(a).) The additional declaration would have to state that the restricted articles were produced in a production site approved by the national plant protection organization 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. Allowing the importation of restricted articles from these areas under the conditions described above would give importers flexibility while continuing to protect against the introduction of potato cyst nematodes into the United States.

We are proposing 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. We are proposing 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.

Under the current regulations in § 319.37-14(a), restricted articles of nursery stock, plants, roots, bulbs, seeds, and other plant products that are not required to be imported under a written permit pursuant to § 319.37-3(a)(1) through (a)(6) may be imported or offered for importation at any of the ports of entry listed in § 319.37-14(b) or at any Customs designated port of entry on the United States-Canada border. A complete list of Customs designated ports of entry can be found in 19 CFR part 101.

Restricted articles of nursery stock, plants, roots, bulbs, seeds, and other plant products required to be imported under a written permit pursuant to § 319.37-3(a)(1) through (a)(6) must be imported or offered for importation only at plant inspection stations, which are ports with special inspection and treatment facilities. Plant inspection stations are listed and designated by an asterisk in § 319.37-14(b). We are proposing to revise § 319.37-14 and related regulations in 7 CFR part 330 to relieve unnecessary restrictions on the entry of regulated articles and to make the regulations easier to use.

First, the list of ports of entry in § 319.37-14(b) does not include all current plant inspection stations. We are therefore proposing to make the necessary updates to this list. This includes removing the entry for the plant inspection stations that were in Brownsville, TX, and Hoboken, NJ, and updating the addresses for some plant inspection stations.

We are also proposing to add a new entry for a plant inspection station in New Jersey. In order to be designated as a plant inspection station, a building must have adequate space for inspection areas to be set up, laboratory facilities for pest and disease identification, provide easy access by shipments for inspection, and, in most cases, contain various treatment facilities. We have determined that the facility in Linden, NJ, satisfies the criteria for designation as a plant inspection station.

Furthermore, it is not necessary to list ports of entry other than plant inspection stations in § 319.37-14(b). APHIS can handle, either through direct staffing or through cooperation with the Department of Homeland Security's Bureau of Customs and Border Protection, imports of restricted articles that are not required to be imported with a permit at any Customs designated port of entry, though there may be exceptions in the future. Therefore, we are proposing to amend the regulations to indicate that restricted articles not required to be imported under a written permit pursuant to § 319.37-3(a)(1) through (a)(6) may be imported or offered for importation at any Customs designated port of entry indicated in our regulations in 7 CFR 330.104.

Section 330.104 contains the general provisions for ports of entry that apply to 7 CFR chapter III. We are proposing to amend these provisions as well. Under § 330.104, ports of entry for articles regulated under 7 CFR chapter III shall be selected by the Deputy Administrator from ports named in 19 CFR part 1.2 as “ports of entry” or 19 CFR part 6.13 as “international airports.” However, 19 CFR parts 1.2 and 6.13 have been removed and, as previously noted, the complete list of Customs designated ports of entry is now contained in 19 CFR part 101.3(b)(1). Therefore, to update the regulations in § 330.104, we are proposing to remove all references to 19 CFR parts 1.2 and 6.13 in 7 CFR chapter III and to add references to 19 CFR part 101.3(b)(1) in their place.

As mentioned above, though APHIS can currently handle imports of restricted articles that are not required to be imported with a permit at any Customs designated port of entry, there may be exceptions in the future. Therefore, we are also proposing to add to § 330.104 a list of exceptions to the ports of entry in 19 CFR part 101.3(b)(1) that will indicate those ports of entry through which articles regulated under 7 CFR chapter III may not be imported. This list would be blank as of the publication of this proposed rule, but we would update the list as necessary.

These changes would eliminate the need to list the ports of entry that are not plant inspection stations in § 319.37-14. Therefore, we are proposing to remove those ports of entry that are not plant inspection stations from the list in that section. We would further amend § 319.37-14 to list the remaining Federal plant inspection stations in the form of a table, for easier reference.

Under the current regulations in § 319.37-14, any restricted article from Canada that is not required to be imported under a written permit pursuant to § 319.37-3(a)(1) through (a)(6) may be imported at any port of entry listed in § 319.37-14(b), or at any Customs designated port of entry on the United States-Canada border. However, for the reasons discussed above, we are proposing to allow restricted articles that are not required to be imported with a permit to be imported at any Customs designated port of entry with limited exceptions that would be listed in § 330.104. Therefore, we are also proposing to remove the provisions in § 319.37-14(b) regarding restricted articles from Canada, because they would no longer be necessary.

The current regulations in § 319.37-14 provide that any restricted article of nursery stock that is required to be imported under a written permit must be imported or offered for importation only at a plant inspection station. However, articles that are required to be imported under a written permit and that have been precleared or treated in the country of export have already fulfilled the necessary conditions for importation into the United States; because they have fulfilled these conditions, they do not need to pass through special inspection and treatment facilities at plant inspection stations, but rather can enter U.S. commerce freely after being released from the port of entry by an inspector. Therefore, we are proposing to add a provision in § 319.37-14 stating that restricted articles that are required to be imported under a written permit and that have been precleared or treated in the country of export may enter through any Customs designated port of entry, including any ports that might in the future be excepted in § 330.104, since it will be unnecessary to ensure that APHIS has a staffing presence in place at ports that receive these articles.

To reflect the proposed changes to § 319.37-14, we are also proposing to update references to the section that appear in 7 CFR parts 319, 322, and 340.

We are proposing to replace certain country names in the regulations to reflect geopolitical changes. Specifically, we would replace references to Czechoslovakia with references to the Czech Republic and Slovakia; replace references to the Federal Republic of Germany and the German Democratic Republic with references to Germany; replace references to the Union of Soviet Socialist Republics with references to Armenia, Azerbaijan, Belarus, Estonia, Georgia, Latvia, Lithuania, Kazakhstan, Kyrgyzstan, Republic of Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan; and replace references to Yugoslavia with references to Croatia, Serbia and Montenegro, and Slovenia. These changes would update the regulations.

The definition of bulbs in § 319.37-1 refers to a single article. We are proposing to change the defined term to bulb so that the definition refers consistently to a single article.

Paragraph (c)(2) of § 319.37-2 contains a reference to the Plant Germplasm Quarantine Center, Building 320, Beltsville Agricultural Research Center East, Beltsville, MD 20705. This center has been renamed the National Plant Germplasm Inspection Station and is located in Building 580 of the Beltsville Agricultural Research Center. We are proposing to correct this address to update the regulations. To make the regulations in 7 CFR part 319 consistent, we would make the same update in paragraphs (b)(1) and (b)(2) of § 319.59-2 and paragraph (c)(2) of § 319.75.

Paragraph (a)(3) of § 319.37-3 refers to “ Alium sativum spp.” Alium sativum is the species name for this article; the “spp.” is incorrect, and we are proposing to remove it.

Paragraph (a)(8) of § 319.37-3 requires a permit for articles (except seeds) of Castanea spp. or Castanopsis spp. destined to California or Oregon. In a final rule published in the Federal Register on September 18, 1992 (57 FR 43134-43151) and effective October 19, 1992, we added Castanea spp. to the list of prohibited articles in § 319.37-2(a). However, we failed to update paragraph § 319.37-3(a)(8) at that time. Therefore, we are proposing to remove the reference to Castanea spp. in § 319.37-3(a)(8).

Paragraph (b) of § 319.37-3 sets out the address to which applications for a permit to import regulated articles should be sent. In this address, the staff previously known as “Port Operations” is now known as “Permits, Registrations, Imports and Manuals.” We are proposing to update that address.

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

In accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is set out below, regarding the effects of this proposed rule on small entities. We do not currently have all the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments concerning potential economic effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from implementation of this proposed rule.

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 proposing to amend the regulations on importing nursery stock to eliminate certain restrictions on the importation of plants in vitro , kenaf seed, and Hydrangea spp.; to establish programs for the importation of approved plants; to address recent changes in pest distributions; to change the phytosanitary certificate requirements for several restricted articles; and to update the list of ports of entry and Federal plant inspection stations. We are also proposing several other changes to update and clarify the regulations and improve their effectiveness. This proposal would relieve restrictions that appear unnecessary and would update the existing regulations and make them easier to understand and implement. The potential economic effects of the changes proposed in this document are discussed below, by topic.

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 potential 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 proposing to add 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. 2 This proposed amendment to § 319.37-2 would have no effect on domestic producers and consumers, while safeguarding the multi-million dollar U.S. berry production industry (2002). 3

We are proposing to remove the requirement that lots of 13 or more items of plants in vitro may only be imported after issuance of a written permit by PPQ, unless their importation is prohibited or restricted elsewhere in the nursery stock regulations. This change would allow plants in vitro to enter at a greater number of ports. We are also proposing to remove the requirement for a phytosanitary certificate for imported plants in vitro , unless their importation is prohibited or restricted elsewhere in the nursery stock regulations. We are proposing these changes because the risk of plant pest introduction via plants in vitro is extremely low and these requirements are unnecessary. We have no reason to expect that making plants in vitro generally admissible through the proposed changes would have a significant effect on domestic producers and consumers. However, we invite the public to submit data on the possible effects of these proposed changes.

We are also proposing to remove the requirement in § 319.37-8(c) that growing media imported along with a restricted article be transparent or translucent, thus allowing charcoal to be used in growing media for plants in vitro . Allowing the use of charcoal as an additive to growing media makes APHIS requirements up-to-date with the current industry standards. We have no reason to expect that allowing the use of charcoal in growing media for plants would have a significant effect on domestic producers and consumers. However, we invite the public to submit data on the possible effects of this proposed change.

We are proposing to require 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 and species name of the restricted article that it accompanies. 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 proposed change would not have a significant impact on any entities, whether large or small.

We are proposing to allow bulbs from the Netherlands to enter the United States with a special certificate in lieu of a phytosanitary certificate. The special certificate would 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 $145 million worth of bulbs and tubers from the Netherlands in 2001. This proposed change would 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 would have a significant effect on domestic producers and consumers of bulbs and tubers. However, we invite the public to submit data on the possible effects of this proposed change.

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

The United States imported $108 million worth of planting seeds from Canada in 2001 while exporting $134 million planting seeds to Canada. The United States exported $754 million worth of planting seeds worldwide in 2001. 4 This amendment would allow the United States and Canada to trade seed more freely, benefitting both countries with negligible impacts to domestic producers and consumers of seeds.

We are proposing to amend § 319.37-5 to require that Vaccinium corymbosum plants from Canada be accompanied by a phytosanitary certificate with an additional declaration stating they are free of blueberry scorch carlavirus. Blueberry production in the United States was worth $208 million in 2002. 5 This additional declaration would 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 proposed amendment would have a negligible impact on domestic producers and consumers of blueberry plants.

We are proposing 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 would minimize risk that such organisms such as Helicoverpa armigera, Chrysodexixis chalcites and Cornutiplusia circumflexa might enter the United States. No export data are currently available for the Canary Islands regarding plant cuttings. We invite the public to submit data on the possible effects of this proposed change.

We are proposing 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 which could be introduced to the United States. S. littoralis is associated with cotton production losses around the world. Without control measures, S. littorali s could inflict heavy damage to both the yield and quality of U.S. cotton production.

Israel exported $1.9 million worth of plant cuttings to the United States in 2001, while the United States exported $11.7 million worth of cuttings to the world. 6 This change would help to safeguard the $3.6 billion worth of U.S. cotton production (2002). 7 We have no reason to expect that this change would have a significant effect on importers of plants from Israel or on domestic cotton producers and consumers. However, we invite the public to submit data on the possible effects of this proposed change.

Under the current 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 proposing to add a paragraph to § 319.37-6 that would explicitly indicate that treatment of regulated articles of nursery stock may be administered outside the United States. We believe that this changes would not have any significant impact on any U.S. entities, whether small or large.

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 pink bollworm in accordance with the applicable provisions of 7 CFR part 305. We are proposing to provide 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. Under our proposed rule, shipments of untreated kenaf seed from Mexico would be authorized entry into those pink bollworm generally infested areas subject to inspection. Immediately upon release, those shipments would 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 occurred, they would be small, given that the United States imports mainly processed kenaf and very little seed and raw fiber. 8 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 proposed 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. 9

The number and size of the entities that might be affected by this proposed change is unknown. APHIS requests that the public provide information regarding the kind and the number of entities that might be affected.

We are proposing to decrease the amount of time imported Hydrangea spp. must be grown in postentry quarantine conditions from 2 years to 9 months. This proposed change could affect the volume of Hydrangea spp. imported into the United States because it would decrease the cost associated with growing Hydrangea spp. in postentry quarantine conditions after importation into the United States. With this change, Canada's 9-month postentry growing period for Hydrangea spp. would be equivalent to the postentry quarantine conditions specified in § 319.37-7. Hydrangea spp. from another country or locality that are imported into Canada and grown in accordance with Canadian postentry growing requirements would be considered to be from Canada and would no longer be required to be grown under postentry quarantine conditions for 2 years after the time of importation into the United States. Therefore, this change would relieve restrictions on the importation of Hydrangea spp. from Canada.

Hydrangeas are summer-flowering shrubs which are usually shipped in the late fall through early winter, after they have received a cold storage treatment. There are nine main Hydrangea varieties in the world. Only two, Hydrangea arborescens and Hydrangea quercifolia , are native to the United States; the other seven are native to Asia. 10 The popularity and production of hydrangeas have both been increasing in the past few years in the United States and so has demand for them. Thus, the shorter quarantine period for imported Hydrangea spp. would benefit the U.S. public. However, it is difficult to measure the size of any possible economic impact of this proposed change in postentry quarantine duration for imported hydrangeas.

The number and size of the entities that might be affected by this proposed change is unknown. APHIS requests that the public provide information regarding the kind and the number of entities that might be affected.

We are proposing to decrease the amount of the time that certain imported chrysanthemums (i.e., Chrysanthemum spp., Dendranthema spp, Leucanthemella serotina , and Nipponanthemum nipponicum ) must be grown in postentry quarantine conditions from 6 months to 2 months if the articles are grown in accordance with the requirements of an APHIS-approved best management practices program. The proposed change would affect the volume of chrysanthemums imported into the United States because it would likely decrease the cost associated with growing them in postentry quarantine conditions after their importation. PPQ has determined that imported chrysanthemums that might be affected with chrysanthemum white rust (CWR) are likely to express symptoms of this disease if it is present within a 2-month postentry quarantine period; the extra safeguards required by a best management practices program act as an additional mitigation against the risk of articles with CWR introducing the disease into the wider environment. Articles identified as being affected with CWR can then be prevented from entering U.S. commerce.

The economic effects of the proposed change are expected to be positive, if small, for U.S. importers of chrysanthemums and the U.S. public. The popularity of chrysanthemums in the United States has been increasing and so has demand for them. In 2003, the value of imported chrysanthemums was around $83.4 million, or 7 percent of the value of all imported flowers (i.e., fresh cut flowers and florist plants). 11 In the same year, the wholesale value of the domestic sales of chrysanthemums reached $95 million. 12 APHIS's efforts to prevent the introduction of CWR safeguard the $14 billion U.S. floriculture and nursery crop industries.

The shorter postentry quarantine period for imported chrysanthemums would benefit both U.S. importers and U.S. consumers. This proposed change would reduce the cost to the chrysanthemum importers, and those savings may be passed along to U.S. buyers of these flowers in the form of lower retail prices. However, the costs of implementing and maintaining an APHIS-approved best management practices program, as well as the benefits from the shorter quarantine period, are unknown. Therefore, it is difficult to measure the size of the economic impact of this proposed change in postentry quarantine duration for the chrysanthemums.

The number and size of entities that might be affected by this proposed change is unknown. APHIS requests the public provide information regarding the kind and the number that might be affected.

We are proposing to amend § 319.37-8(b) allow importation of restricted plant articles from areas of Canada that are infested with potato cyst nematodes as long as they are grown in approved media and isolated from potato cyst nematodes. APHIS has determined that restricted articles from these areas that are grown in approved media can be isolated in such a manner as to prevent the introduction of potato cyst nematodes. These articles would be allowed to be imported if they are grown in approved media and are accompanied by a phytosanitary certificate with an additional declaration stating that the facility in which they were produced is capable of isolating the plants from nematodes and that the plants were isolated from nematodes throughout their production. Allowing these restricted articles to enter under these conditions would increase the flexibility of imports while protecting the United States against potato cyst nematode infestation. We have no reason to expect that this change would have a significant effect on domestic producers and consumers of nursery stock. However, we invite the public to submit data on the possible effects of this proposed change.

We are proposing to amend § 319.37-8(d) to allow unused clay pots and new wooden baskets to be used as a growing media for epiphytic plants. No trade information is currently available for clay pots and wooden baskets. Planting epiphytic plants into new wooden baskets and unused clay pots is a standard nursery practice. Importers have requested that APHIS amend the regulations to allow them to import plants in wooden baskets and clay pots. Neither medium is believed to pose a pest risk. We have no reason to expect that this change would have a significant effect on domestic producers and consumers of nursery stock. However, we invite the public to submit data on the possible effects of this proposed change.

We are proposing to add a plant inspection station in Linden, NJ, to the list of Federal plant inspection stations in § 319.37-14. Adding this facility to the list of Federal plant inspection stations would make importation of nursery stock more convenient and possibly less costly for domestic sellers and consumers without reducing the effectiveness of the regulations.

This proposed rule contains new information collection or recordkeeping requirements (see “Paperwork Reduction Act” below).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 03-002-1. Please send a copy of your comments to: (1) Docket No. 03-002-1, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

In this document, we are proposing to amend the regulations on importing nursery stock to eliminate various restrictions on the importation of plants in vitro and 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; to change the phytosanitary certificate requirements for several restricted articles; to reduce the postentry quarantine growing period for Hydrangea spp. and for certain chrysanthemums; and to update the list of ports of entry and Federal plant inspection stations. We are also proposing several other changes to update and clarify the regulations and improve their effectiveness. This proposal would relieve restrictions that appear unnecessary and would update the existing regulations and make them easier to understand and implement.

These changes will necessitate the use of certain information collection activities, including the completion of phytosanitary certificates.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

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

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

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

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.2774 hours per response.

Respondents: Importers of nursery stock and foreign officials.

Estimated annual number of respondents: 804.

Estimated annual number of responses per respondent: 1.

Estimated annual number of responses: 804.

Estimated total annual burden on respondents: 223 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

Accordingly, we propose to amend 7 CFR parts 319, 330, and 340 as follows:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2005-23314; Directorate Identifier 2005-NM-189-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

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

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

The Direction Ge nrale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A318-100 and A319-100 series airplanes, A320-111 airplanes, A320-200 series airplanes, and A321-100 and A321-200 series airplanes. The DGAC advises that several in-service incidents of wear and detachment of the top-stops from the magnetic fuel level indicators (MFLI) have occurred. Analysis revealed that the affected top-stop is made of aluminum and retained with an S-shaped lock-wire that degrades over time. Detachment of the top-stop allows it to move around the fuel tank, and the top-stop could come into contact, or in close proximity, with a gauging probe, resulting in compromise of the air gap between the probe and the structure, and creating a potential ignition source. These conditions, if not corrected, could result in an ignition source in the fuel tank in the event of a lightning strike, which could result in a fire or explosion.

Airbus has issued Service Bulletin A320-28-1138, dated March 18, 2005. The service bulletin describes procedures for reviewing the airplane's documentation to determine the part number (P/N) of the MFLI of the fuel tank, and related investigative and corrective actions if necessary. If the P/N for each MFLI cannot be determined from a records review, the related investigative actions include accomplishing a visual inspection of the internal bore of each MFLI using an endoscope to determine the type of MFLI that is installed. If any aluminum MFLI with an S-shaped lock-wire standard is installed, or if a MFLI with an old P/N is installed, the corrective action includes replacing the MFLI with a new, improved MFLI. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directive F-2005-108, dated July 6, 2005, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

The applicability of the French airworthiness directive includes airplanes that are equipped with certain MFLI part numbers. However, we have not included those airplanes in the applicability of this proposed AD; rather, this proposed AD includes a requirement to review the airplane's maintenance records to determine if any MFLI of the fuel tank with a P/N identified in the old P/N column of the table in paragraph 1.L, “Interchangeability/Mixability,” of the referenced service bulletin is installed. Those P/Ns are the same as the P/Ns identified in the applicability of the French airworthiness directive. This requirement would ensure that the actions specified in the service bulletin and required by this proposed AD are accomplished on all affected airplanes. Operators must continue to operate the airplane in the configuration required by this proposed AD unless an alternative method of compliance is approved. This difference has been coordinated with the DGAC.

This proposed AD would affect about 621 airplanes of U.S. registry. The proposed records review would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $40,365, or $65 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

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

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

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

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Include the docket number “FAA-2005-23313; Directorate Identifier 2005-NM-111-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

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

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

We have received a report indicating that a 0.73 inch long skin crack was found at the upper corner of the upper hinge cutout of the mid-cabin galley doorway on a Model 727 series airplane. The crack was similar to cracking found and fixed previously on other Model 727 series airplanes. Further inspections revealed a 1 inch crack in the bear strap, and cracks in the doorstop fitting adjacent to the upper hinge cutout. Investigation of the Model 727 airplane history revealed reports of 15 skin cracks having lengths up to 2 inches on 12 airplanes with between 23,400 and 54,600 flight cycles. Of the reported skin cracks, there were three reports of associated bear strap crack indications on three airplanes. One of the airplanes also had a cracked door stop fitting adjacent to the upper hinge cutout. Five cracks on five of the airplanes were located near the lower hinge cutout in the upper row of fasteners of the skin lap joint at stringer 14R. Some of the cracks were found on airplanes that were modified in service by increasing the radius of the corners of the body skin at the hinge cutouts, and installing doublers at the high cutouts; and airplanes on which the equivalent modification was done in production. These modifications did not prevent the cracking. This cracking, if not corrected, could result in reduced structural integrity and consequent rapid decompression of the airplane.

On January 16, 1990, the FAA issued AD 90-06-09, amendment 39-6488 (55 FR 8370, March 7, 1990), applicable to certain Boeing Model 727 series airplanes, which requires the incorporation of certain structural modifications specified by Boeing Document No. D6-54860, Revision C, dated December 11, 1989, “Aging Airplane Service Bulletin Structural Modification Program—Model 727.” That Boeing document references numerous Boeing service bulletins that specify various modification actions that are mandated by AD 90-06-09. The actions required by that AD are intended to prevent a degradation in the structural capabilities of the affected airplanes, which could result in structural failure. That action also reflects the FAA's decision that long-term continued operational safety would be ensured by actual modification of the airframe rather than repetitive inspection. One of the structural modifications in that AD is of the body skin of the mid-galley door hinge cutouts done in accordance with Boeing Service Bulletin 727-53-0054, Revision 1, dated November 16, 1989. Service Bulletin 727-53-0054 describes procedures for inspection of the forward upper and lower corners at the hinge cutouts of the mid-cabin galley doorway for cracks in the body skin, a modification to the corners of the hinge cutouts, and installation of doublers at the hinge cutouts of the mid-cabin galley doorway. (Service Bulletin 727-53-0054 is referenced in Boeing Document No. D6-54860, Revision C, as one source of service information for accomplishing the actions.)

On May 12, 1998, we issued AD 98-11-03, amendment 39-10530 (63 FR 27455, May 19, 1998), applicable to all Boeing Model 727 series airplanes. (A correction of that AD was published in the Federal Register as AD 98-11-03 R1, amendment 39-10983, on December 30, 1998 (64 FR 989, January 7, 1999).) That AD requires that the FAA-approved maintenance inspection program be revised to include inspections of Structurally Significant Items (SSI) based on damage tolerance analysis. That AD also allows operators not to change their programs if they determine that the existing inspections are effective for the new or affected SSI.

On April 19, 2000, we issued AD 2000-08-19, amendment 39-11705 (65 FR 25278, May 1, 2000), applicable to certain Boeing Model 727 and 727C series airplanes. That AD requires one-time inspections of the exterior body skin located at the forward corners of the mid-galley door hinge cutouts to detect cracking, and corrective actions if necessary. That AD also requires modification of the body skin of the mid-galley door hinge cutouts. Boeing Service Bulletin 727-53-0054, Revision 1, dated November 16, 1989, was referenced in that AD as the appropriate source of service information for accomplishing the required actions. The service bulletin describes procedures for inspection of the forward upper and lower corners at the hinge cutouts of the mid-cabin galley doorway for cracks in the body skin, a modification to the corners of the hinge cutouts, and installation of doublers at the hinge cutouts of the mid-cabin galley doorway.

Since issuance of AD 90-06-09 and AD 2000-08-19, we have determined that the actions required by those ADs pertaining to the mid-galley door hinge cutouts are not adequate to prevent cracking in this area. The subject cracking of the bear strap, door stop fitting, and skin lap joint area is bigger than the area specified in the actions required by AD 90-06-09 and AD 2000-08-19; therefore, the cracks may have been undetected at the time a modification or repair was done. We have determined that additional work is necessary for airplanes on which a modification or repair required by AD 90-06-09 or AD 2000-08-19 was done without additional inspections recommended in the service bulletin referenced in this proposed AD.

We have reviewed Boeing Alert Service Bulletin 727-53A0228, dated March 24, 2005. The service bulletin describes procedures for repetitive inspections for any cracks, including stop-drilled, trimmed-out, or repaired cracks, in the body skin and bear strap at the upper and lower hinge cutouts of the mid-cabin galley doorway; along the upper fastener row of the stringer 14R lap splice; and in the doorstop fitting adjacent to the upper hinge cutout; and corrective action if necessary. The types of inspections are detailed and special detailed inspections'which include surface high frequency eddy current (HFEC), open-hole HFEC, and fluorescent dye penetrant inspections. If a modification or repair required by AD 90-06-09 or AD 2000-08-19 was done, the service bulletin describes procedures for removing the doublers before accomplishing the inspections. Corrective action includes replacing any cracked doorstop fitting with a new fitting, and repairing cracks in the skin or bear strap per repair instructions from Boeing. The service bulletin also specifies that replacement of a door stop fitting with a new door stop fitting made of 7075 material eliminates the need to repeat the inspection of that stop fitting. Door stop fittings having part number 65-23674-7 are made of 7075 material and do not need to be inspected. The service bulletin also recommends providing the details of any crack findings to Boeing for repair instructions.

The compliance times for the inspections specified in Table 1 of paragraph 1.E. “Compliance” of the service bulletin are to be accomplished before the accumulation of 20,000 total flight cycles or within 2,000 flight cycles after the effective date of the AD, whichever is later; the repetitive interval is every 6,000 flight cycles.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.”

Paragraph 1.F. of the service bulletin specifies, “Any cracks found must be repaired, before further flight, in accordance with a method approved by the Manager, Seattle ACO, FAA, Transport Airplane Directorate; or in accordance with data meeting the type certification basis of the airplane, approved by a Boeing Company Authorized Representative who has been authorized by the Manager, Seattle ACO, to make such findings.” However, the Accomplishment Instructions of the alert service bulletin specify to contact the manufacturer for instructions on how to repair certain conditions. Therefore, we provide the following clarification: Where the Accomplishment Instructions of the alert service bulletin specify to provide the details of any crack findings to Boeing for repair instructions, this proposed AD would require repairing those conditions in one of the following ways:

• Using a method we approve; or

• Using data that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.

We consider this proposed AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.

There are about 232 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 123 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

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

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

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

Regulation 4.22(c) requires a CPO to file with NFA and to provide to each participant an annual financial report, certified by an independent public accountant, for each commodity pool that it operates within 90 days of the end of the pool's fiscal year to the permanent cessation of trading. 1 Also, Regulation 4.7(b)(3) requires a COP that has claimed an exemption from certain regulatory requirements pursuant to Rule 4.7 to file with NFA and to distribute to commodity pool participants an unaudited annual financial report in lieu of an audited annual financial report. 2 Currently a CPO files such annual reports with NFA in paper form, unless the CPO has voluntarily elected to file the annual reports electronically pursuant to NFA's pilot program for electronic filing, which is discussed herein.

Under Commission Rule 4.22(h), each annual financial report filed with NFA must contain a manually signed oath or affirmation that, to the best of the knowledge or belief of the individual making the oath or affirmation, the information contained in the annual report is accurate and compete. A facsimile of a manual signature is permitted for annual reports  3 delivered to participants, and therefore CPOs, absent the participants' objection, may deliver annual reports to pool participants by means of electronic media. 4 However, no regulatory provision currently permits the electronic filing of the annual report with NFA.

Beginning with reports filed for the year ended December 31, 2004, the NFA implemented a pilot program permitting CPOs to voluntarily elect to file commodity pool annual reports through the use of an electronic filing system, the “EasyFile” system, accessed from the NFA's Web site. 5 The NFA pilot program required that the complete annual report for commodity pools, including the public accountant's opinion contained in certified statements, be submitted to NFA in the Portable Document Format (“PDF”) file format. In addition to the electronic submission of the document in a PDF file format, participating CPOs were required to directly enter certain key financial statement balances or aggregated balances from the commodity pools' annual reports into the NFA's EasyFile system. NFA requested that the Commission provide CPOs participating in the pilot program with relief from the requirement of Regulation 4.22(h) that the annual report filed with NFA include a manually signed oath or affirmation, as NFA implemented an electronic version of the oath or affirmation applicable to both the document submitted in PDF file format and the key financial statement balances directly entered into the EasyFile system. The Commission's Division of Clearing and Intermediary Oversight issued exemptive relief in January 2005 to CPOs participating in the pilot program from the requirement that their pools' annual reports submitted to NFA be manually signed under Rule 4.22(j). 6 On August 26, 2005, the NFA petitioned the Commission to formally amend Regulations 4.22 and 4.7 to eliminate the requirement that CPOs file manually signed pool annual reports with NFA, and to further require COPs to file such annual reports with NFA electronically using the EasyFile system implemented in the pilot program.

I. The Commission's Authority To Implement the Reporting Rules

The market and large trader reporting rules (reporting rules) are contained in parts 15 through 21 of the Commission's regulations. 1 Together, the reporting rules are structured to ensure that the Commission receives adequate information to carry out its market and financial surveillance programs. 2 The reporting rules are implemented by the Commission partly pursuant to the authority of sections 4a, 4c(b), 4g, and 4i of the Commodity Exchange Act (CEA or Act). 3 Section 4a of the Act permits the Commission to set, approve exchange-set, and enforce speculative position limits. 4 Section 4c(b) of the Act gives the Commission plenary authority to regulate transactions that involve commodity options. 5 Section 4g of the Act imposes reporting and recordkeeping obligations on registered entities, and requires each registrant, whether a futures commission merchant (FCM), introducing broker, floor broker, or floor trader, to file such reports as the Commission may require on proprietary and customer positions executed on any board of trade in the United States or elsewhere. 6 Lastly, section 4i of the Act requires the filing of such reports as the Commission may require when positions made or obtained on contract markets or DTEFs equal or exceed Commission-set levels. 7

The Commission's reporting rules, among other things, require FCMs, foreign brokers, and clearing members (collectively reporting firms) to report position and identifying information of the largest futures and option traders to the Commission. 8 Upon special call, traders must separately provide position and identifying information to the Commission. 9 For both reporting firms and traders, the obligation to report under parts 17 and 18 of the Commission's regulations is triggered when traders hold or control reportable positions. 10

Commission rule 15.03(b) delineates contract reporting levels for commodity futures and option contracts. 11 Rule 15.03(b) applies a default reporting level of 25 contracts to contracts not specifically itemized by the rule. Notably, rule 15.03 does not specify a reporting level for futures or option contracts based on 3-Year U.S. Treasury Notes (3-Year T-Notes).

At the present time, 3-Year T-Notes are listed solely by the U.S. Futures Exchange, LLC (Eurex US). On January 26, 2005, the Division of Market Oversight (staff) issued no-action relief to Eurex US, FCMs, foreign brokers, clearing members, and traders that complied with all regulatory obligations arising from a contract reporting level of 750 contracts instead of the otherwise applicable default reporting level of 25 contracts. 12 The staff based its grant of relief primarily on the conclusion that historical trading in 2-Year T-Notes served as precedent for trading in 3-Year T-Notes. 13 Based upon the staff's surveillance experience with 2-Year T-Notes, the liquidity of the securities underlying treasury futures and option contracts, and the securities available for delivery against 3-Year T-Notes, 14 the Commission is herein proposing to adopt a 3-Year T-Notes reporting level of 750 contracts.

The CEA, as amended by the Commodity Futures Modernization Act of 2000 (CFMA), 15 gives the Commission the statutory authority to subject DTEFs and transactions on DTEFs to the reporting rules. 16 First, as noted above, section 4c(b) of the Act, regardless of the venue of trading, gives the Commission plenary authority to regulate transactions that involve commodity options. Second, sections 4a and 4i of the Act explicitly reference transactions executed on or subject to the rules of DTEFs. Finally, section 4g of the Act imposes reporting and recordkeeping obligations on registered entities and certain Commission registrants trading on registered entities and boards of trade. A registered entity is defined by CEA section 1a(29) to include DTEFs. 17 A board of trade is defined by section 1a(2) of the Act to include “any organized exchange or other trading facility.”  18

The current language of Commission rule 37.2, which is designed to exempt DTEFs from the bulk of Commission regulations otherwise pertinent to trading facilities, reserves the applicability of parts 15 to 21 to DTEFs, but does so through incorporation by reference and without substantial clarity. 19 Specifically, rule 37.2 provides that DTEFs are not, as applicable to the market, exempt from parts 15 to 21, and further provides that parts 15 to 21, when applicable to DTEFs, shall be viewed as though they were set forth in rule 37.2 and included specific reference to DTEFs.

As part of the Commission's continuing effort to better implement the amendments introduced to the Act by the CFMA, the Commission is now proposing to define DTEFs directly into rules 15.00 to 15.04 and parts 16 through 21 of the Commission's regulations. The proposed amendments are not in any way designed to alter the existing reporting obligations of DTEFs or their market participants.

The current provisions of parts 15 to 21, with the exception of Commission rule 15.05, focus only on contract markets. 20 The Commission is proposing to define the new term reporting market in Commission rule 15.00(m) to include DTEFs in addition to designated contract markets. In order to directly effectuate the applicability of rules 15.00 to 15.04 and parts 16 through 21 of the Commission's regulations to DTEFs, the Commission is next proposing to replace certain references to contract markets in those rules and parts with references to reporting markets. 21

In comparison with designated contract markets, DTEFs are required to comply with a less comprehensive set of Core Principles. 22 Thus, in certain respects, DTEFs have greater operational flexibility than designated contract markets. For example, pursuant to section 5(d)(11) of the Act, transactions on designated contract markets, with the exception of security futures products, must be cleared through Commission registered derivatives clearing organizations. 23 In contrast, pursuant to section 5a(c)(4) of the Act, transactions on DTEFs may be cleared through clearing organizations other than Commission registered clearing organizations. 24

Despite this potential for greater operational flexibility, DTEFs must comply with statutory safeguards that restrict the contracts that they may list and the manner in which certain market participants may exercise trading privileges. 25 For example, a DTEF may permit trading access to all eligible contract participants, as that term is defined by section 1a(13) of the Act, 26 and all retail traders that trade through FCMs having at least $20 million in net capital, but only in futures and option contracts that are based on commodities that have no cash market, are security futures products, or are highly unlikely to be susceptible to the threat of manipulation. 27 As an additional example, a DTEF may list any futures or option contract on any underlying commodity, except one based on the agricultural commodities enumerated in section 1a(4) of the Act, 28 but only if trading access is limited to eligible commercial entities, as that term is defined by section 1a(11) of the Act. 29

As proposed, rule 15.00(m) would define a reporting market to mean a designated contract market and, unless determined otherwise by the Commission with respect to the facility or a specific contract listed by the facility, a DTEF. The determination requirement in the proposed definition of reporting market is designed to reconcile the Commission's responsibility to adequately surveil transactions on DTEFs with the Congressional directive to permit DTEFs to operate, in certain respects, more flexibly than designated contract markets. Accordingly, in determining that a DTEF is not a reporting market, and thereby rendering some or all of the provisions of the reporting rules inapplicable to the facility or a specific contract listed by the facility, the Commission would consider on a case by case basis, several non-exhaustive factors. 30 These factors include a DTEF's surveillance capabilities, the characteristics of commodities underlying specific DTEF transactions, the surveillance history of trading with precedential value, potential defects in the pricing of DTEF transactions, the value of market data to market participants, the value of market data to commercial entities, and the impact that market disruptions may have on Commission registrants and other registered entities.

Commission rule 16.01 requires that contract markets submit directly to the Commission data on trading volume, open interest, futures delivery notices, exchanges of futures, option deltas, prices, and critical dates on a daily basis. 31 As with the other provisions of the reporting rules, and with the exception of the public dissemination requirement of rule 16.01 that is discussed below, the proposed amendments to rule 16.01 would require DTEFs to submit market data to the Commission unless determined otherwise by the Commission.

As mentioned above, in addition to submitting data directly to the Commission, rule 16.01 requires contract markets to publicly disseminate data on trading volume, open interest, futures delivery notices, exchanges of futures, option deltas, and prices on a daily basis. Unlike designated contract markets, however, DTEFs are statutorily obligated to publicly disseminate information on settlement prices, volume, open interest, and opening and closing ranges on a daily basis when the Commission determines that a DTEF contract performs a significant price discovery function for transactions in the cash market for the commodity underlying the contract. 32

The language triggering the public dissemination requirement for DTEFs is similar to the language triggering the same requirement for exempt boards of trade  33 and exempt commercial markets. 34 The Commission therefore believes that DTEFs should not of necessity be subject to the same public dissemination requirement as designated contract markets. 35 The proposed amendments to rule 16.01 would require both designated contract markets and DTEFs to record and submit market data to the Commission, but would only obligate designated contract markets to comply with the rule's public dissemination requirement. As a result, the public dissemination requirement for DTEF contracts would be implemented under the rubric of DTEF Core Principle 5, including any Commission regulation adopted thereunder and subsequent Commission statements providing additional guidance and establishing acceptable practices for the manner of compliance with that core principle. 36 Proposed paragraph (e) of Commission rule 16.01 emphasizes this result.

On December 21, 2000, the President signed into law the CFMA, extensively revising the Act, and facilitating the availability of transactions, such as block trades, that are subject to the rules of an exchange, but lawfully negotiated and executed away from the centralized marketplace. 37 Block trades are typically subject to exchange rules that establish minimum size thresholds, participant eligibility requirements, pricing limits, and trade reporting parameters. 38 It is generally believed that market participants execute large orders through block trades in order to achieve greater price and execution certainty than otherwise attainable in the centralized marketplace.

In order to recognize the growing importance and use of off-centralized market transactions, the Commission adopted final rules in December of 2004 that required designated contract markets to separately identify, report, and publish the volume generated from trades involving the exchange of futures for a commodity or for a derivatives position. 39 To more comprehensively recognize the growing use and importance of off-centralized market transactions, the Commission is now similarly proposing to amend rule 16.01 to require designated contract markets to record and make readily available to the news media and the general public, as part of the total mix of market data publicly disseminated pursuant to rule 16.01, the volume generated from trades that are block trades.

Commission rule 1.38(b) currently requires designated contract markets to separately identify and mark all off-centralized market transactions, including block trades. 40 In addition, several designated contract markets disseminate public reports that separately account for the volume generated from block trades. 41 The proposed amendments to rule 16.01 seek to codify this industry practice, and require all designated contract markets to record the volume generated from block trades for each contract, and make that information readily available to the news media and the general public as a part of the total mix of market data publicly disseminated on a daily basis. 42

The notice of public hearing (REG-107722-00) that is the subject of this correction is under section 6655 of the Internal Revenue Code.

As published, REG-107722-00 contains an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the notice of public hearing (REG-107722-00) that was the subject of FR. Doc. 05-23872, is corrected as follows:

On page 73396, column 2, in the preamble, under the paragraph heading “Comments and Public Hearing”, first full paragraph of the column, lines 1 and 2, the language “A public hearing has been scheduled for February 22, 2006, beginning at 10” is corrected to read “A public hearing has been scheduled for March 15, 2006, beginning at 10”.

Need for Correction

The NPRM, as published, contained a phrase in the preamble and regulatory text that was inserted by error. This phrase could confuse the reader and needs to be deleted.

Accordingly, the publication on November 3, 2005, of the NPRM [USCG-2004-18939], FR Doc. 05-21573, is corrected as follows:

1. On page 67068, in the first column, under the heading “Proposed Action”, in the tenth line of the third bullet, following the word “drift”, remove the phrase, “must be limited”.

2. On page 67073, in the first column, in paragraph (e), following the word “drift” on the second line, remove the phrase “must be limited;” in the third line.

I. General Information A. How can I get copies of this document and other related information?

In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in the ADDRESSES section above, copies of the state submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

This section is organized as follows:

EPA is proposing to approve Maine's Chapter 151, “Architectural and Industrial Maintenance (AIM) Coatings,” and to incorporate this regulation into the Maine SIP.

Maine's Chapter 151 applies to any person who supplies, sells, offers for sale, or manufactures, any architectural coating for use within the State of Maine and to any person who applies, or solicits the application of, any architectural coating within the State of Maine. The rule includes VOC content limits for several categories of architectural coatings such as roof coatings, swimming pool coatings, and traffic marking coatings. Aerosol coating products, as well as architectural coatings sold in a container with a volume of one liter or less, are exempt from the regulation.

In addition, Chapter 151 includes the appropriate testing and recordkeeping requirements to ensure compliance with the specified performance standards. Specifically, the rule requires the use of EPA test methods and test procedures adopted by ASTM, South Coast AQMD, and Bay Area AQMD. The rule also allows the use of alternative test methods that have been approved by the Maine DEP and EPA. Finally, the rule requires compliance with the specified VOC content limits by January 1, 2006 (with one exception). 1 Coatings manufactured prior to January 1, 2006, however, may be sold, supplied, offered for sale, or applied after January 1, 2006, so long as the coating complied with the standards in effect at the time the coating was manufactured.

EPA has evaluated Maine's Chapter 151 and has found that this regulation is generally consistent with EPA guidance and the Ozone Transport Commission (OTC) model rule for AIM coatings. The specific requirements of the regulation and EPA's evaluation of these requirements are detailed in a memorandum dated November 10, 2005, entitled “Technical Support Document—Maine—Architectural and Industrial Maintenance Coatings Regulation” (TSD). The TSD and Maine's Chapter 151 are available in the docket supporting this action.

The OTC has developed model rules for several VOC source categories, and the OTC states, including Maine, have signed a memorandum of understanding (MOU) committing to adopt these model rules. One of the categories for which a model rule has been developed is architectural coatings. (See “OTC Model Rule for Architectural and Industrial Maintenance Coatings,” issued March 28, 2001.)

Several other OTC states have also recently adopted an AIM coatings rule based on the OTC model rule, and EPA has already approved some of these states' rules. 2 The OTC model rule and Maine's rule include emission limits that are at least as stringent as, and in some cases more stringent than, EPA's AIM coatings rule. 3

It should be noted, however, that there are two cases where the emission limits in Maine's Chapter 151 differ from the limits in the OTC model rule. Specifically, the OTC rule includes a 350 g VOC per liter emission limit for varnishes. In contrast, Maine's rule includes two emission limits for varnishes: (1) a 450 g VOC per liter emission limit with a January 1, 2006 compliance date; and (2) a 350 g VOC per liter limit with a January 1, 2011 compliance date. Maine's emission limits are acceptable, however, because Maine's 2006 limit for varnishes is consistent with EPA's limit for varnishes. Also, the emission limits for stains in Maine's rule differ from those in the OTC model rule. The OTC rule includes a 250 g VOC per liter limit for stains. Maine's rule includes an emission limit of 550 g VOC per liter for interior wood clear and semitransparent stains and a 250 g VOC per liter limit for all other stains. Thus, Maine's rule is less stringent for interior wood clear and semitransparent stains than the OTC rule. Maine's 550 g VOC per liter limit is, however, acceptable since it is consistent with the limit for interior wood clear and semitransparent stains in EPA's rule.

EPA is aware that concerns have been raised about the achievability of VOC content limits of some of the product categories under the Maine AIM coatings rule. Although we are approving this rule today, the Agency is concerned that if the rule's limits make it impossible for manufacturers to produce coatings that are desirable to consumers, there is a possibility that users may misuse the products by adding additional solvent, thereby circumventing the rule's intended VOC emission reductions. We intend to work with Maine and manufacturers to explore ways to ensure that the rule achieves the intended VOC emission reductions, and we intend to address this issue in evaluating the amount of VOC emission reduction credit attributable to the rule. EPA has issued an advanced notice of proposed rulemaking to solicit comments, data, and information for determining the emission reductions achieved from architectural coating rules. (See 70 FR 51694; August 31, 2005.)

Maine did not submit its Chapter 151 SIP submittal to meet any specific control requirements under the Clean Air Act. However, subsequently, on June 9, 2005, Maine submitted its 5 percent increment of progress plan which relies on reductions from Chapter 151. In today's action, EPA is proposing to approve Chapter 151 because it will strengthen Maine's SIP, and we are not deciding what level of emissions reductions the rule will achieve. EPA will evaluate the reductions Maine is claiming from Chapter 151 in its 5 percent increment of progress plan when the Agency takes action on that plan.

EPA is proposing to approve Maine's AIM coatings rule and is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this proposal, or by submitting comments electronically, by mail, or through hand delivery/courier following the directions in the SUPPLEMENTARY INFORMATION , I. General Information section of this proposal.

EPA is proposing to approve Maine's Chapter 151, “Architectural and Industrial Maintenance (AIM) Coatings,” and to incorporate this regulation into the Maine SIP.

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 imposes 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 rule 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 (Public Law 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), because it 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 Clean Air Act. 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 is not economically significant.

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

Corrosion can occur on the interior wall of a steel pipeline when liquid gathers within the pipeline. Whether corrosion occurs in these circumstances depends on the nature and amount of contaminants inside the pipeline and the operating conditions of the pipeline.

Current pipeline safety regulations found in 49 CFR part 192 require an operator to take actions to address internal corrosion in operating and maintaining a gas transmission pipeline. An operator must include the details of its corrosion program in procedural manuals and carry out the program. Among the actions that an operator must take to prevent corrosion are the use of inhibitors in the gas, the use of cleaning pigs, the removal of liquids and solids from drips, and monitoring the contaminants. When an operator discovers internal corrosion, an operator must take extra steps such as using coupons to check for corrosion to prevent internal corrosion-induced failure. Besides these operation and maintenance (O&M) requirements, an operator must design and construct pipe installed since 1994 to allow the passage of internal inspection tools, commonly known as “pigs”. Therefore, all pipeline installed since 1994 allow the use of cleaning pigs.

On December 15, 2003, we issued regulations on integrity management programs for gas transmission pipelines. These regulations are found at 68 FR 69816. Specifically, an operator must include within its integrity management program a means to discover whether internal corrosion impacts the integrity of its pipeline. The means may include internal inspection or hydrostatic testing. Where pipeline design does not allow the use of pigs, internal corrosion direct assessment (ICDA) is the likely choice. The operator must then address any corrosion found.

To prepare for ICDA, an operator must evaluate whether the design and construction of the pipeline contributes to the risk of internal corrosion. These design and construction features include low points in which liquids may gather, such as sags, drips, inclines, valves, manifolds, dead-legs, and traps; elevation profile; and pipe diameter. An operator combines information about design and construction with O&M history such as places where cleaning pigs have not been used, patterns of gas quality, and the range of expected gas velocities. An operator uses this analysis to decide where to excavate and examine the line for internal corrosion.

Internal corrosion has been one of the three leading causes of reportable incidents in gas transmission pipelines for the past five years, both in percentage of incidents and their consequences. In fact, in 2003 and 2004, internal corrosion caused more property damage than the other two most frequent causes, third-party excavation damage and external corrosion, combined. Specifically, internal corrosion caused $14.9 million in property damage in 2003 versus $11.9 million in damage attributable to external corrosion or third-party excavation damage. In 2004, internal corrosion caused $4.9 million in damage versus $4.0 million for the other two causes combined.

There is an increasing demand for natural gas. As producers tap new sources, there is a possibility the nature and amount of contaminants in the gas will vary. To ensure safe and reliable delivery of gas, pipeline operators must be vigilant in preventing internal corrosion and monitoring its impact when it occurs. Early planning for corrosion control at the design and construction stage would simplify the O&M actions needed later for corrosion control.

The integrity management regulations require added O&M steps to control internal corrosion. Designing and constructing pipelines with internal corrosion control in mind would ease integrity management assessments whether done by internal inspection or ICDA. Planning at the design and construction stage would also simplify actions needed to address internal corrosion during O&M. There are two industry standards for considering internal corrosion control during design and construction. These are the American Society of Mechanical Engineers (ASME) code for gas piping ( ASME B31.8, Gas Transmission and Distribution Piping Systems ) and the American Gas Association's Guide for Gas Transmission and Distribution Piping Systems. These standards already provide guidance to operators. However, clear performance-based design and construction standards for internal corrosion control will aid operators in complying with the recent integrity management regulations as well as the existing O&M requirements.

Finally, in its report on the gas transmission pipeline accident that occurred in 2000 near Carlsbad, New Mexico, the National Transportation Safety Board (NTSB) described physical features that promoted internal corrosion of the line. There were low points just upstream of where the pipeline crossed the Pecos River. The original construction of the line included a drip installed upstream of these low points to prevent liquid from gathering in the low points. At some point, the operator modified the line to allow the use of cleaning pigs upstream of the Pecos River. The operator placed the equipment used to remove cleaning pigs at the valve upstream of the drip. The NTSB concluded residue clogged the drip allowing liquids to flow past the drip and settle in the low points at the river crossing. The NTSB investigation after the pipeline ruptured at the low points revealed severe internal corrosion at the site. The line where the cleaning pigs had been used upstream did not experience internal corrosion needing repair. Noting the lack of Federal design and construction standards aimed at internal corrosion, the NTSB recommended the Department change its regulations:

We agree there should be Federal standards to address internal corrosion at the design and construction stage.

PHMSA has broad authority to issue safety standards on the design, construction, operation, replacement, and maintenance of gas transmission pipelines. This authority is in 49 U.S.C. 60102(a). Under 49 U.S.C. 60104, a design and construction standard may not apply to a pipeline existing when we issue the standard. Therefore, this proposal imposes design and construction requirements only on new and replaced pipe and components. The proposal does require an operator to evaluate the potential impact on existing pipelines by upstream changes made to the pipeline and take actions to address the impact. However, evaluating and addressing impacts is an O&M need rather than a design and construction standard. The statute allows PHMSA to regulate O&M for existing pipelines.

Under 49 U.S.C. 60102(b), a gas pipeline safety standard must be practicable and designed to meet the need for gas pipeline safety and for protection of the environment. To do this, PHMSA must consider several factors in issuing a safety standard. These factors include the relevant available pipeline safety and environmental information, the appropriateness of the standard for the type of pipeline, the reasonableness of the standard, and reasonably identifiable or estimated costs and benefits. PHMSA has considered these factors in developing this proposed rule and provides its analysis in the preamble. PHMSA must also consider any comments received from the public and any comments and recommendations of the Technical Pipeline Safety Standards Committee (Committee). The Committee discussed the ideas for this proposal following a briefing at its meeting on June 15, 2005. The transcript of, and briefing materials for, the meeting are in the DOT DMS Docket RSPA-98-4470. PHMSA considered the Committee discussion in developing this proposed rule. This document seeks public comment on the proposed rule; the Committee will formally consider it in a future meeting. PHMSA will address the public comments and the Committee's recommendations when the agency prepares a final rule.

The proposed rule would add a new section to subpart I—Requirements for Corrosion Control in 49 CFR part 192. The new section, § 192.476 would require an operator to address internal corrosion risk when designing and constructing gas transmission pipelines.

Proposed paragraph (a) provides a performance test for internal corrosion prevention measures in design and construction. The test is whether the design and construction choices include measures to reduce the risk that liquid will collect inside the pipe. The proposed rule would require an operator to use measures that include, at the least, arrangement to avoid collection of liquids and the use of effective liquid removal equipment. If an operator is unable to avoid low spots, an operator would explain why and identify the alternative measures to reduce the risk. There may be cases in which the design avoids low spots, but during construction the operator finds that it cannot avoid low spots. In this case, the operator would document the “as built” condition and the alternative measures used.

Proposed paragraph (b) provides a performance test for design and construction measures to check any internal corrosion that occurs. The test is whether the design and construction choices include measures to reduce the risk of internal corrosion. The design must allow for use of corrosion detection equipment.

These design and construction requirements would apply to all new construction and to replaced pipe and components. With one limited exception, application to replaced pipe would be the same as the rule on designing to allow the passage of instrumented internal inspection tools. PHMSA clarified the meaning of replaced pipe in the final rule published in the Federal Register on June 28, 2004 (69 FR 36024). The exception occurs when replaced pipe changes the physical features of an existing downstream pipeline. Proposed paragraph (c) clarifies that an operator must consider the impact of line changes on internal corrosion risks and plan for these. Proposed paragraph (c) would not require an operator to rebuild the downstream pipeline to remove low points, but would require an operator to consider whether it should install liquid removal equipment or tools to monitor corrosion. After analysis, an operator may decide O&M measures would adequately address the impacts of the changes upstream.

Paragraph (d) would require an operator to record the decisions it makes about internal corrosion control when designing and constructing pipelines. The operator would have to explain its reasons for the decisions and justify variance. For example, if an operator did not use equipment to remove liquids in designing a pipeline, the operator would have to explain why the use of the equipment would be impracticable. Recording reasons for decisions fosters better decisionmaking and will provide needed information about safety features of the line in the future.

Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR19477) or you may visit http://dms.dot.gov.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not subject to review by the Office of Management and Budget. This proposed rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), PHMSA must consider whether rulemaking actions would have a significant economic impact on a substantial number of small entities. This proposed rule would affect operators of gas transmission pipelines and onshore gas gathering pipelines. There is not a substantial number of small entities which operate these lines. PHMSA expects the costs of compliance with the proposed rule would be small. PHMSA concludes that this proposed rule would not have a significant economic impact on any small entity.

PHMSA invites public comment on the number of small entities this proposed rule would impact.

PHMSA has analyzed this proposed rulemaking according to Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Because the proposed rulemaking would not significantly or uniquely affect the communities of the Indian tribal governments nor impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

This proposed rule would affect information collection that OMB has approved under Control Numbers 2137-0049 (recordkeeping under 49 CFR part 192). Operators of gas transmission pipelines must keep records to show the adequacy of corrosion control measures. In addition, they must keep construction records to make them available to individuals operating and maintaining the pipeline. The proposed rule may require some added effort to document decisions about internal corrosion made during design and construction. Because of existing recordkeeping needs and prudent business practice, PHMSA estimates the added burden hours will be nominal. PHMSA invites comments on this estimate.

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the proposed rulemaking.

PHMSA has analyzed the proposed rulemaking for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ). Because the proposed rulemaking would require limited physical change or other work that would disturb pipeline rights-of-way, PHMSA has preliminarily determined the proposed rulemaking is unlikely to affect the quality of the human environment significantly. An environmental assessment document is available for review in the docket. PHMSA will make a final determination on environmental impact after reviewing the comments to this proposal.

PHMSA has analyzed the proposed rulemaking according to Executive Order 13132 (“Federalism”). The proposed rule does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The proposed rule does not impose substantial direct compliance costs on State and local governments. The pipeline safety law prohibits State safety regulation of interstate pipelines. This proposed regulation would not preempt state law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

Transporting gas impacts the nation's available energy supply. However, this proposed rulemaking is not a “significant energy action” under Executive Order 13211. It also 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. Further, the Administrator of the Office of Information and Regulatory Affairs has not identified this proposed rule as a significant energy action.

For the reasons provided in the preamble, PHMSA proposes to amend 49 CFR Part 192 as follows:

The Nation's existing pipeline infrastructure, much of which is over 50 years old, requires regular safety and environmental reviews to ensure its reliability. To address several statutory mandates and National Transportation Safety Board (NTSB) recommendations on actions to improve pipeline safety, PHMSA  1 issued Integrity Management Program (IMP) regulations for operators of hazardous liquid pipelines with more than 500 miles of pipeline (65 FR 75378; Dec. 1, 2000). PHMSA finalized the regulation's repair criteria provisions on January 14, 2002 (67 FR 1650), and extended the IMP regulations to operators with fewer than 500 miles of hazardous liquid pipeline on January 16, 2002 (67 FR 2136). These regulations are found at 49 CFR 195.452.

During development of proposed IMP requirements for operators of gas transmission pipelines, Congress passed the Pipeline Safety Improvement Act of 2002, subsequently codified at 49 U.S.C. 60101 et seq. Section 60109 required issuance of regulations by December 17, 2003, prescribing standards for a gas transmission pipeline operator's adoption and implementation of an IMP. The statute also prescribed minimum requirements to be included in these programs.

PHMSA issued IMP regulations for gas transmission pipelines on December 15, 2003. These regulations are found in 49 CFR Part 192, Subpart O. Both the hazardous liquid pipeline and gas transmission pipeline IMP regulations require operators to continually assess, evaluate, repair, and validate through comprehensive analysis, integrity of pipeline segments in areas where a leak or rupture would do the most damage, such as in populated and environmentally sensitive areas. These areas are called “High Consequence Areas” (HCAs).

PHMSA has broad authority under 49 U.S.C. 60102 to issue regulations applying to design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. The IMP requirements were issued under this authority and addressed the following statutory mandates:

• 49 U.S.C. 60109(a)—to prescribe standards establishing criteria for identifying gas pipeline facilities located in high-density population areas and hazardous liquid pipeline facilities that cross waters where a substantial likelihood of commercial navigation exists, located in a high-density population area, or in an area unusually sensitive to environmental damage (USAs);

• 49 U.S.C. 60102(f)(2)—to prescribe additional standards requiring the periodic inspection of pipelines in USAs and high-density population areas;

• 49 U.S.C. 60102(j)—to survey and assess the effectiveness of emergency flow restricting devices (EFRD) and other procedures, systems, and equipment used to detect and locate hazardous liquid pipeline ruptures and to prescribe regulations on the circumstances where a hazardous liquid pipeline operator must use an EFRD or similar equipment; and

• 49 U.S.C. 60109(c)—to issue regulations prescribing standards to direct gas transmission pipeline operators to conduct a risk analysis and adopt and implement an integrity management program.

The proposed revisions in this NPRM simply modify several of the requirements in the hazardous liquid pipeline and gas transmission pipeline IMP regulations.

Also, 49 U.S.C. 60109(b) requires a pipeline safety standard to be practicable and designed to meet the need for environmental safety and protection. Pursuant to 60109(b)(2), PHMSA considered many factors in issuing revisions proposed in this NPRM. PHMSA must also consider comments received from the public along with comments and recommendations from the Technical Hazardous Liquid Pipeline and Technical Pipeline Safety Standards Committees as appropriate. PHMSA will address public comments and advisory committee comments when a final rule is prepared on these proposed revisions.

Hazardous liquid pipeline IMP regulations apply to any hazardous liquid or carbon dioxide pipeline that could affect an HCA. Hazardous liquid pipeline HCAs are defined as populated areas, areas unusually sensitive to environmental damage, and commercially navigable waterways. Among other specifications, the regulations require operators to conduct a baseline assessment and periodically evaluate the integrity of each pipeline segment that could affect an HCA. Operators must also remediate, and have a schedule for evaluation and remediation of, anomalous conditions discovered from these assessments. For certain conditions, the regulations prescribe time frames for an operator to remediate the defect. These conditions are categorized into immediate, 60-day, or 180-day repair conditions.

Gas transmission pipeline IMP regulations apply to gas transmission pipelines located in HCAs. A gas transmission pipeline HCA is defined by either of two methods: (a) a Class 3 or 4 location and any area outside a Class 3 or 4 location where the Potential Impact Radius is greater than 660 feet (200 meters), and the area within a Potential Impact Circle contains 20 or more buildings intended for human occupancy; or (b) an identified site, which is an area meeting one of three subcriteria:

(1) An outside area or open structure occupied by 20 or more people at least 50 days a year (days need not be consecutive);

(2) A building occupied by 20 or more people on at least 5 days a week for 10 weeks in a year (days and weeks need not be consecutive); or

(3) The area within a Potential Impact Circle containing 20 or more buildings intended for human occupancy (unless the exception in method (a) applies).

Gas transmission pipeline operators must complete a baseline assessment and conduct continual integrity assessment of pipeline segments in HCAs and address all anomalous conditions discovered. An operator must remediate anomalies according to a schedule prioritizing conditions for evaluation and remediation. Time frames are specified for certain conditions, categorized as immediate, one-year, or monitored conditions.

On June 18, 2004, the American Petroleum Institute (API) and the Association of Oil Pipe Lines (hereinafter collectively referred to as “API”) petitioned PHMSA for changes to the hazardous liquid pipeline IMP regulations. The petition sought changes in three areas:

(1) adding flexibility to reassessment intervals;

(2) adding flexibility to scheduling repairs; and

(3) providing for notification when an operator is unable to make a repair because of permitting or other problems.

On August 27, 2004, PHMSA personnel met with API representatives to further discuss API's proposed changes; a meeting summary is in the docket.

(1) Flexibility in Reassessment Interval . To preserve a pipeline's integrity, § 195.452(j) requires a continual evaluation and assessment of each hazardous liquid pipeline segment that could affect an HCA. Under § 195.452(j)(3), an operator is required to establish intervals not to exceed five years for continually assessing the pipe's integrity. The API petition requests the reassessment interval be extended from a maximum of 5 years to not longer than 68 months. API maintains that adding a window of time to complete a reassessment gives operators flexibility when having to factor in events affecting reassessment. Such events could include weather conditions, scheduling difficulties in getting certain tools, species' life cycle activities, and permitting problems. API's petition also notes the expanded interval would be consistent with other pipeline safety regulations specifying time frames for completing required activities.

PHMSA agrees adding an eight-month window to the hazardous liquid pipeline five-year reassessment interval will give operators flexibility in scheduling and completing reassessment, without compromising pipeline safety. Such a change is consistent with other pipeline safety regulations specifying time frames for an operator to complete an inspection.

(2) Scheduling Repairs . API's petition also recommends modifying the “Special requirements for scheduling remediation” in § 195.452(h)(4) to allow application of engineering judgment and additional flexibility. API suggests an approach aligned with Part 192 gas transmission pipeline IMP repair criteria, such as:

• expanding immediate repairs to include any dent with cracking indications (rather than just top side dents with cracking);

• removing 3% dents from 60-day conditions;

• creating a 365-day condition category; and

• creating a monitored conditions category consisting of “other conditions”, and some of the 180-day conditions.

API gives the following reasons for requesting these revisions to the hazardous liquid pipeline repair criteria:

• the designation of 60- and 180-day conditions in Part 195 does not focus on the physical significance of an anomaly based on the likelihood pipe may fail;

• data indicate operators are not finding significant 60-day conditions;

• the excavation necessary to examine anomalies and to conduct repairs is the most expensive part of the process; operators seek to schedule excavations for repairs as efficiently as possible while still making timely repairs;

• the length of time for getting necessary permits and approvals can exceed the required time frames for making repairs;

• the extension of 60- and 180-day conditions to 365-day conditions will allow permitting agencies and operators to focus Federal streamlining efforts on those repairs that may pose an immediate risk;

• environmental considerations to protect important species will affect operators' ability to schedule necessary pipeline integrity activities; and

• repair criteria based on immediate, scheduled, and monitored repairs would work well for the hazardous liquid pipeline industry, especially considering its high usage of in-line inspection tools.

PHMSA and API discussed the need for more information (data on types of defects currently requiring remediation within 60 and 180 days), before PHMSA could determine if regulatory or some other action would be needed to address API's request. To better determine what type of action, if any, is needed PHMSA is requesting data and comments on the following topics:

• an identification of the characteristics of defects requiring short-term (60- and 180-day) remediation;

• an evaluation of defects to find out which are stable;

• a sound engineering or technical basis for checking rather than repairing these defects; and

• the development of criteria allowing operators to use logs from internal inspection tool runs to identify stable defects.

(3) Notification of Special Circumstances . API believes the hazardous liquid pipeline IMP rule fails to recognize that an operator may not be able to make a repair within a required period. API requests changing the rule to allow an operator to notify PHMSA when the operator has taken all available steps and is still unable to conduct an investigation or repair a specific condition. API maintains such a change would alert PHMSA to the myriad real-world conditions (weather, electrical outage, and permitting requirements) that can interfere with repair periods and would also protect operators from enforcement action for events over which an operator has no control. API further believes notification would help PHMSA recognize patterns potentially affecting pipeline safety, such as new or changed permit criteria.

Both the hazardous liquid pipeline (§ 195.452(h)) and gas transmission pipeline (§ 192.933) IMP remediation requirements require an operator to temporarily reduce pressure or to shut down the pipeline until the operator completes repair of an immediate repair condition. Gas transmission pipeline operators are also required to reduce pressure if they cannot meet a specified time limit for making a repair, or to take other action to ensure segment safety. The regulations do not require notification when an operator reduces pressure. Notification is required only when a hazardous liquid pipeline or gas transmission pipeline operator cannot meet its schedule for evaluating and remediating any condition and cannot provide safety though a temporary reduction in operating pressure. Any pressure reduction longer than 365 days must also be justified.

PHMSA agrees with API that notifying PHMSA of the reasons for an operator making a pressure reduction would give the agency better information on conditions that could interfere with an operator's ability to complete remediation of defects found during an integrity assessment. However, the usefulness of such information is not limited to repairs made on hazardous liquid pipelines. Therefore, PHMSA is proposing to revise remediation requirements to require both gas transmission pipeline and hazardous liquid pipeline operators to notify PHMSA when a pressure reduction is made on a segment covered under IMP to remediate a defect, and to provide the reasons for the pressure reduction. Instead of only requiring notification when an operator cannot meet repair schedules and cannot provide safety through a temporary reduction in operating pressure, an operator would be required to notify PHMSA any time it reduces operating pressure to make a repair, and to give the pressure reduction reasons. If a repair takes longer than 365 days, an operator would again have to notify PHMSA and provide the reasons for the delay. Operators would still be required to take further remedial action to ensure pipeline safety when a pressure reduction exceeds 365 days.

For gas transmission pipeline operators, State notification requirements would continue to apply for intrastate gas transmission pipelines and interstate gas transmission pipelines in States where PHMSA has an interstate agent agreement. However, we are proposing to delete the requirement for notification of local pipeline safety authorities. PHMSA is not aware of any instance where an intrastate gas transmission pipeline would be regulated by a local authority rather than a State public safety authority. Furthermore, PHMSA interstate agreements are only with State pipeline safety authorities.

PHMSA proposes these revisions to get a better understanding of the reasons hazardous liquid pipeline and gas transmission pipeline operators are delayed in making repairs. PHMSA further hopes to work with the U.S. Department of Energy to analyze whether prolonged pressure reductions have potential impact on the Nation's energy supply. This notification will also give PHMSA better information on:

• whether permitting issues are involved in pressure reduction;

• what causes schedule delays (permitting, scheduling, other); and

• where and under what circumstances PHMSA can help expedite permits for repairs.

(4) Formula for Reducing Operating Pressure . Section 195.452(h)(4) requires a hazardous liquid pipeline operator to calculate a temporary reduction in operating pressure using the formula in section 451.7 of ASME/ANSI B31.4 when making an immediate repair. The requirement was meant to ensure an additional safety margin is provided while an operator makes an immediate repair. However, a recent frequently asked question highlighted that this formula does not always apply and may result in a calculated pressure higher than the original operating pressure. In addition, the formula only applies to metal loss anomalies, not to immediate repair conditions not involving metal loss. Therefore, PHMSA proposes to correct the provision by allowing a hazardous liquid pipeline operator to use the ASME/ANSI B31.4 formula only if applicable. If not applicable to the anomaly, or if the formula results in a calculated pressure higher than original operating pressure, an operator would be allowed to use another acceptable means to calculate a pressure reduction.

DOT does not consider this action to be a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735; October 4, 1993). This NPRM is nonsignificant under DOT's regulatory policies and procedures (44 FR 11034; February 26, 1979). PHMSA prepared a Draft Regulatory Evaluation for this NPRM and placed it in the public docket.

The proposed changes to add flexibility to scheduling continuous assessment would create ongoing benefits and have no cost effects. These adjustments would create positive net benefits. PHMSA believes the proposed change to the notification requirement for pressure reduction would create added continuing costs, with an estimated six notifications per operator each year. However, notification requirements have no significant cost for either operators or industry overall. The benefits are expected to offset costs. Together, these proposed changes to IMP regulations for hazardous liquid and gas transmission pipelines are expected to create positive net benefits.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) PHMSA must consider whether a rulemaking would have a significant impact on a substantial number of small entities. The requirements proposed in this NPRM do not apply to a substantial number of small entities. The proposed revisions to the IMP rules will affect hazardous liquid pipeline operators and gas transmission pipeline operators. Most hazardous liquid pipeline operators and gas transmission pipeline operators do not meet the Small Business Administration's small business definition, which is either 6 million in revenue (for natural gas pipelines under North American Industry Classification System (NAICS) 486210) or 1,500 employees (for crude oil and refined petroleum product pipelines under NAICS 486110 and 486910). Additionally, notification costs per operator are about $194.50 annually. This is less than 0.01 percent of the $6 million gross revenue. This is not a significant burden on pipeline operators, including small businesses.

The proposed changes to add flexibility to scheduling continuous assessment would create ongoing benefits and have no cost effects. These modifications would create positive net benefits. The changed notification requirements for pressure reduction would create negligible added costs as well as benefits; however, the benefits are expected to offset costs. Together, these proposed changes to the IMP regulations for hazardous liquid and gas transmission pipelines are expected to create positive net benefits to the affected industry.

Based on the cost benefit analysis and the determination that hazardous liquid pipeline and gas transmission pipeline operators do not generally fall into the Small Business Administration's revenue or employee size guidelines, it is unlikely (under section 605 of the Regulatory Flexibility Act) the proposed regulatory changes will have any significant impact on a substantial number of small entities. PHMSA invites comments on these assumptions.

This NPRM proposes minimal information collection requirements. Based on information currently available to PHMSA, 74 notifications were submitted by 26 operators over three years. Of these 74 notifications, 36 of them, or about 50 percent, were due to an operator's inability to meet repair schedules or reduce pressure. The proposed notification modifications will increase notification frequency. PHMSA estimates, on average, the proposed changes will result in six notifications per operator annually. The estimated average time to prepare a notification request is 30 minutes. Consequently, there should be no significant cost or hourly burden on individual operators or the industry because of the notification requirement in this proposal. PHMSA evaluated the NPRM, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and believes there will be no significant paperwork burden on industry or individual operators because of the NPRM. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), PHMSA will present a separate paperwork analysis to the Office of Management and Budget for review. A copy of the analysis will also be entered in the docket.

This NPRM has been analyzed under principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this NPRM does not significantly or uniquely affect communities of Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

PHMSA analyzed this NPRM under principles and criteria contained in Executive Order 13132 (Federalism). None of the proposed actions: (1) Has substantial direct effects on States, relationships between the National Government and the States, or distribution of power and responsibilities among various levels of government; (2) imposes substantial direct compliance costs on States and local governments; or (3) preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 (64 FR 43255; August 10, 1999) do not apply.

This NPRM is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this NPRM as a significant energy action.

This NPRM does not impose unfunded mandates under the 1995 Unfunded Mandates Reform Act. It does not result in costs of $100 million or more to either State, local, or tribal governments, in aggregate, or to the private sector, and is the least burdensome alternative for achieving the NPRM objectives.

PHMSA analyzed this NPRM in accordance with section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. 4332), the Council on Environmental Quality regulations (40 CFR 1500-1508), and DOT Order 5610.1D, and has preliminarily determined this action will not significantly affect human environment quality. The Environmental Assessment is in the Docket.

For the reasons set forth in the preamble, PHMSA proposes to amend 49 CFR parts 192 and 195 as follows:

On March 10, 1995, we published three final rules as a part of a comprehensive effort to improve the braking ability of medium and heavy vehicles  1 (60 FR 13216 and 60 FR 13287). The major focus of that effort was to improve the directional stability and control of heavy vehicles during braking through antilock brake system (ABS) requirements. However, the 1995 effort also reinstated stopping distance requirements for air-braked vehicles, and established different stopping distances for different types of heavy vehicles. Previous stopping distance requirements for medium and heavy vehicles had been invalidated in 1978 by the United States Court of Appeals for the 9th Circuit because of issues with the reliability of ABS then in use. See, PACCAR v. NHTSA , 573 F.2d 632 (9th Cir. 1978) cert. denied , 439 U.S. 862 (1978).

The current stopping distance requirements under Federal Motor Vehicle Safety Standard No. 121, Air brake systems , as established under the 1995 final rule, are determined according to vehicle type. Under the loaded-60-mph stopping distance requirements of FMVSS No. 121, air-braked buses must comply with a stopping distance of 280 feet, air-braked single-unit trucks must comply with a stopping distance of 310 feet, and air-braked truck tractors must comply with a stopping distance requirement of 355 feet. 2 Under the unloaded-60-mph stopping distance requirements  3 of FMVSS No. 121, air-braked buses must comply with a stopping distance of 280 feet, and air-braked single-unit trucks and air-braked truck tractors must comply with a stopping distance requirement of 335 feet. Under the emergency brake-60 mph stopping distance requirements  4 of FMVSS No. 121, air-braked buses and air-braked single-unit trucks must comply with a stopping distance of 613 feet, and air-braked truck tractors must comply with a stopping distance requirement of 720 feet.

The stopping distance requirements adopted in the 1995 final rule are generally less stringent than those invalidated by the PACCAR decision in 1978. In adopting the requirements, the agency estimated that half of the air-braked truck tractors and a quarter of the air-braked single-unit trucks would meet the stopping distance requirements without modification. However, the stopping distance requirements were an enhancement to the overall braking performance of air-braked vehicles given the newly adopted ABS requirements. The agency determined that the stability and control during braking requirements would result in a majority of the benefits, but estimated that the new stopping distance requirements would prevent annually about 3 vehicle occupant fatalities, 84 vehicle occupant injuries, and $3.24 million in property damage.

Since the agency established the stability control and stopping distance requirements for heavy vehicles almost ten years ago, data indicate that the involvement of large trucks in fatal and injury producing crashes has slightly declined while vehicle-miles-traveled (VMT) has increased. However, because the number of registered large trucks has increased, the total number of crashes remains high. In 2002:

• 434,000 large trucks were involved in traffic crashes in the U.S.

• 4,542 large trucks were involved in fatal crashes, resulting in 4,897 fatalities (11 percent of all highway fatalities reported in 2002). Seventy-nine percent of the fatalities were occupants of another vehicle, 14 percent were truck occupants, and 7 percent were nonoccupants.

• 130,000 people were injured in crashes involving large trucks. Seventy-seven percent of the injuries were occupants of another vehicle, 20 percent were truck occupants, and 3 percent were nonoccupants. 5

According to Large Truck Crash Facts 2001 (report number FMCSA-RI-02-011; provided in the docket for this notice), published by the Analysis Division of the Federal Motor Carrier Safety Administration (FMCSA), the large truck fatality rate (e.g., the number of fatalities per 100 million VMT) was 60 percent higher than the fatality rate for passenger vehicles (defined as a car or light truck) in 2001. When the FMCSA report considered combination trucks (e.g., tractor and trailer combinations) separately, the fatality rate was nearly double that of passenger vehicles. Conversely, the fatality rate for single-unit trucks was approximately 15 to 20 percent higher than the fatality rate for passenger vehicles. The FMCSA data indicate that for all types of crashes that involve large trucks, trucks with a gross vehicle weight rating (GVWR) over 26,000 pounds are more likely to be involved than other large trucks.

Retail sales data, averaged for 2000 and 2001, indicate that annual sales of medium-duty trucks between 10,001 and 26,000 pounds GVWR were approximately 228,000 units and annual sales of heavy-duty trucks over 26,000 pounds GVWR were approximately 283,000 units. While data indicate that medium-duty trucks make up a sizable portion of the population of large trucks in the U.S. truck fleet, the crash data indicate that the majority of crashes involve heavy-duty trucks with GVWRs over 26,000 pounds, as shown in Table 1. Almost all of the vehicles with a GVWR greater than 26,000 lbs. are air-braked, and over half of those are truck tractors.

One factor contributing to this difference in risk is that, in general, the heavier a vehicle is the longer it requires to stop for a given speed. While large trucks operate on the same roadways as significantly lighter passenger vehicles, large trucks may take twice as long to stop in instances of panic stop braking. The difference in mass between large trucks and passenger vehicles also contributes to passenger vehicles incurring greater damage in collisions between such vehicles. Recent developments in brake systems indicate that stopping distance reductions are possible for these heavy vehicles that represent the highest crash and fatality risk.

Reductions in stopping distance will, in most cases, result in a reduction in the impact velocity, and hence the severity of a crash. In some cases, reduced stopping distances will actually prevent a crash from occurring, i.e., a vehicle with a reduced stopping distance will stop short of impacting another vehicle. Based on the crash data from a NCSA report, 6 improvements in stopping distance would provide benefits in crashes with the following geometries: rear-end, truck striking passenger vehicle; passenger vehicle turned across path of truck; and straight path, truck into passenger vehicle (generally side-impact crashes at roadway junctions). The total percentage of all passenger vehicle occupant fatalities for these crash types is 26 percent and on an annual basis resulted in 655 fatalities. In addition, it is possible that some head-on collisions could be reduced in severity, since improvements in the braking capability of large trucks could reduce impact speeds.

NHTSA has been exploring the feasibility of reducing the stopping distance requirement under FMVSS No. 121 for heavy air-braked vehicles by 20 to 30 percent. We have initially focused on air-braked truck tractors, since the crash data indicate that this vehicle type is most frequently involved in fatal truck crashes. NHTSA's Office of Vehicle Safety Research has been conducting brake research on enhanced crash avoidance capabilities for large trucks. Developments in air disc brakes, enhanced larger capacity drum brakes, electronic controlled brake systems (ECBS), and advanced ABS have contributed to the agency's decision to propose more stringent stopping distance requirements for truck tractors.

At NHTSA's Vehicle Research and Test Center (VRTC) in East Liberty Ohio, research was initiated in 2002 to compare the performance of air-braked tractors and trailers equipped with a variety of brake system configurations. VRTC tested two conventional air-braked tractors with four different foundation brake  7 configurations. The brake configurations tested included the following:

a. Standard brake drums on both the steer and drive axles,

b. Larger capacity drums on the steer axle and standard drums on the drive axles (drum hybrid),

c. Air disc brakes on the steer axle and standard drums on the drive axle (disc hybrid),

d. Air disc brakes on steer and drive axles. 8

Testing was performed in accordance with the procedure in FMVSS No. 121, which includes testing at lightly loaded vehicle weight  9 (LLVW) and at GVWR conditions. Each vehicle was tested six times in each configuration at each weight. The VRTC results suggests that the test vehicles would be able to comply with a 20 to 30 percent reduction in the stopping distance requirements at both weight conditions with modifications only to the foundation brake systems.

When tested at the GVWR condition, the data show that these two vehicles performed quite differently in their standard brake configurations with conventional S-cam brakes. 10 With disc brakes at all wheel positions, both vehicles were able to exceed a 30 percent stopping distance reduction (249 ft) from the current requirements in FMVSS No. 121 at GVWR (355 ft). Both vehicles were able to exceed a 20 percent stopping distance reduction (284 ft) from the current standard using either hybrid system. It is notable that the second test truck was able to meet a 20 percent reduction in the stopping distance requirement when tested at GVWR in its original brake system configuration.

When tested at GVWR condition, the first test truck (Truck A), achieved stopping distances in six tests ranging from 307 to 328 feet (average 317 feet) with its standard foundation brake configuration. When Truck A was equipped with larger capacity drums on the steer axle, its braking distances ranged from 250 to 261 feet (average 252 feet). When configured with disc brakes on the steer axle only, stopping distances for the same truck ranged from 234 to 258 feet (average 247 feet). With disc brakes on both the steer and drive axles, stopping distances for the first test vehicle ranged from 218 to 228 feet (average 222 feet).

In six tests at GVWR condition, the second test truck (Truck B) achieved stopping distances ranging from 260 to 273 feet (average 264 feet) when tested with its standard foundation brake configuration. The agency notes that this vehicle in its standard configuration would be able to meet a 20 percent reduction in the current stopping distance requirement. When Truck B was equipped with larger capacity drums on the steer axle, its braking distances ranged from 264 to 278 feet (average 269 feet). When configured with disc brakes on the steer axle only, stopping distances for the same vehicle ranged from 249 to 280 feet (average 263 feet). With disc brakes on both the steer and drive axle, stopping distances for the second test truck ranged from 235 to 249 feet (average 241 feet). The results are presented in Figure 1 below.

We intend that any final action resulting from this updated status review will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, concerned governmental agencies, the scientific community, industry, or any other interested party are hereby solicited.

We are opening a 60-day comment period to allow all interested parties an opportunity to provide information on the status of the Queen Charlotte goshawk throughout its range, including:

1. Taxonomy, distribution, habitat selection, food habits, population density and trends, habitat trends, and effects of forest management on goshawks;

2. Any information pertinent to determining whether Vancouver Island may constitute a significant portion of the range of the subspecies, such as:

a. Any information pertinent to whether and how the threats to goshawks on Vancouver Island affect the survival and persistence of Queen Charlotte goshawks elsewhere (Alaska, Queen Charlotte Islands);

b. Any information concerning the historical value of the habitat on Vancouver Island, including the uniqueness or importance for other reasons (such as breeding, feeding, or suitability for population expansion) of the habitat on Vancouver Island to the subspecies;

c. To what extent the habitat on Vancouver Island contributes to the representation, resilience, or redundancy of the subspecies as a whole;

3. Information relevant to the accuracy of our 1997 status review; and

4. Information relevant to whether or not there are any populations of the subspecies that may qualify as distinct population segments.

We will base our finding on a review of the best scientific and commercial data available, including all information received during the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

All comments and materials received will be available for public inspection, by appointment, during normal business hours at our Juneau Fish and Wildlife Field Office at the above address.

On May 9, 1994, the U. S. Fish and Wildlife Service received a petition from eight conservation groups and two individuals to list the Queen Charlotte goshawk as endangered. Logging of old-growth forest, where the bird nests and forages, was the primary threat identified. On August 26, 1994, we published our 90-day finding that the petition presented substantial information indicating that listing may be warranted, opened a public comment period, and initiated a status review to determine whether listing the subspecies was warranted (59 FR 44124). Following our status review, we determined that listing the subspecies under the Act was not warranted and subsequently published our finding in the Federal Register on June 29, 1995 (60 FR 33784). We expressed concern for long-term survival of the bird under the existing management plan for the Tongass National Forest (covering over 90 percent of Southeast Alaska), but acknowledged that a new management plan was being drafted that was expected to provide improved protection for the subspecies. That finding was challenged in Federal District Court in Washington DC, in a suit filed on November 17, 1995, by 8 of the original 10 petitioners, plus 2 additional conservation organizations and 1 additional individual. The Court granted a summary judgment for the plaintiffs on September 25, 1996, holding that we should not have relied on a draft revision of the 1979 Tongass Land Management Plan “to provide sanctuary for the goshawk,” remanded the decision to us, and instructed us to make a listing determination based on the existing Forest Plan, Southwest Center for Biological Diversity v. Babbitt, 939 F. Supp. 2d 49 (D.D.C. 1996). The Court agreed to a deadline of May 31, 1997, to complete this analysis. On May 23, 1997, however, the Forest Service released a new plan, the Tongass Land and Resources Management Plan. We requested and received an extension from the court until August 31, 1997, to review the petitioned action and the status of the subspecies in light of the new plan. On September 4, 1997, we published our new finding that listing of the subspecies under the Act was not warranted (62 FR 46710), confirming our previous determination. This finding was challenged in District Court, and a decision was issued July 20, 1999. The finding was remanded to us, with instructions to provide a more accurate and reliable population estimate, and to consider a 1999 revision of the 1997 Tongass Land and Resources Management Plan. We appealed that decision, prevailed, and the case was remanded back to the District Court, Southwest Center for Biological Diversity v. Babbitt, 215 F. 3d 58 (D.C. Cir. 2000). On July 29, 2002, Magistrate Facciola, of the D.C. District Court, issued his findings and recommendations, Southwest Center for Biological Diversity v. Norton, 2002 WL 1733618 (D.D.C. July 29, 2002). Magistrate Facciola found that: (1) We had fulfilled the requirement of the Act to use the best scientific data available; (2) the “not warranted” determination was due deference; (3) our determination that the Queen Charlotte goshawk would persist in Alaska and certain Canadian islands was not unreasonable; (4) Vancouver Island, which constituted one-third of the subspecies' geographic range, was a “significant portion” of the subspecies” range; and (5) our failure to make a specific finding as to conservation of the subspecies on an island which constituted one-third of the subspecies' geographic range was material omission.

On May 24, 2004, Judge Urbina, of the D.C. District Court, issued an order that adopted Magistrate Facciola's Findings and Recommendations in total, except for the Magistrate's finding that Vancouver Island constituted a significant portion of the range for Queen Charlotte goshawk. Instead, Judge Urbina directed us, upon remand, to reconsider and explain any determination regarding whether or not Vancouver Island is indeed a significant portion of the range, and assess whether the Queen Charlotte goshawk is endangered or threatened on Vancouver Island. This opening of the public comment period is consistent with Judge Urbina's order as we are re-evaluating the status of the subspecies in relation to Vancouver Island and as a taxon as a whole.

The primary author of this document is Steve Brockmann, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Juneau Fish and Wildlife Field Office, Juneau, Alaska.

Regulations implementing the Atlantic Herring Fishery Management Plan (FMP) require the New England Fishery Management Council's (Council) Atlantic Herring Plan Development Team (PDT) to meet at least annually, no later than July each year, with the Atlantic States Marine Fisheries Commission's (Commission) Atlantic Herring Plan Review Team (PRT) to develop and recommend the following specifications for consideration by the Council's Atlantic Herring Oversight Committee: Allowable biological catch (ABC), optimum yield (OY), domestic annual harvest (DAH), domestic annual processing (DAP), total foreign processing (JVPt), joint venture processing (JVP), internal waters processing (IWP), U.S. at-sea processing (USAP), border transfer (BT), total allowable level of foreign fishing (TALFF), and reserve (if any). The PDT and PRT also recommend the total allowable catch (TAC) for each management area and subarea identified in the FMP. As the basis for its recommendations, the PDT reviews available data pertaining to: Commercial and recreational catch; current estimates of fishing mortality; stock status; recent estimates of recruitment; virtual population analysis results and other estimates of stock size; sea sampling and trawl survey data or, if sea sampling data are unavailable, length frequency information from trawl surveys; impact of other fisheries on herring mortality; and any other relevant information. Recommended specifications are presented to the oversight committee and the Council in order to make a recommendation to NMFS. NMFS reviews the Council recommendation, and may modify it if necessary to insure that it is consistent with the criteria in the FMP and other applicable laws.

In 2004, the Council proposed specifications that would have set OY at 180,000 mt. It also voted to maintain the 2005 specifications for 2006, unless stock and fishery conditions changed substantially. Upon review of the specifications package submitted by the Council for 2005, NMFS decided that the justification for setting the OY at 180,000 mt was not persuasive, given the recent history of landings in the fishery and concerns about allocating TALFF. As a result, NMFS proposed setting the OY at 150,000 mt, and readjusting the TACs in Areas 2 and 3 to reflect that change. NMFS also did not find the Council's argument for setting USAP at zero to be persuasive, noting that such an allocation would favor one segment of the U.S. processing sector over another, without any justifiable reasons based on conservation objectives. USAP could also provide an additional outlet for harvesters and, therefore, increase the benefits to the U.S. industry. As a result, NMFS proposed setting USAP at 20,000 mt for 2005. The modified alternative proposed by NMFS was added to and fully analyzed in the 2005 specification package's EA/RIR/IRFA. That package analyzed and evaluated the environmental, social, and economic impacts of maintaining the same specifications for 2 years. The 2005 specifications assumed that the PDT would update and evaluate stock and fishery information during 2005, and the Council and NMFS might determine, based on the review by the Herring PDT, that no adjustments to the specifications were necessary for the 2006 fishing year. The PDT completed a comprehensive review of all herring related stock and fishery data as part of the development of the DSEIS for Amendment 1 to the FMP. It concluded that stock and fishery conditions have remained relatively constant. It found no reason to modify the specifications, as implemented by NMFS for 2005, for 2006. At its September 2005 meeting, the Council agreed and voted to recommend that the 2005 specifications, as implemented by NMFS, be maintained for 2006. Given that there has been no significant change in the herring fishery over the past year, and that the 2005 specifications package fully evaluated the impacts of maintaining the specifications for 2 years, NMFS concurs with the Council's recommendation.

NMFS proposes the specifications and Area TACs contained in the following table.

The proposed measures are discussed here briefly. For a complete discussion of the development of and rationale for the specifications, please refer to the proposed rule for the 2005 specifications, published January 31, 2005 (70 FR 4808).

An ABC of 220,000 mt is proposed, consistent with the MSY proxy recommended in Amendment 1 to the FMP, which is currently being developed. The 220,000 mt proxy recommended in Amendment 1 is intended to be a temporary and precautionary placeholder for MSY until the next stock assessment for the Atlantic herring stock complex is completed. Because of the importance of ABC as a means of determining the other values in the specifications, it is discussed in the specifications, even though it is not a value that is set by the specification process.

The FMP specifies that OY will be less than or equal to ABC minus the expected Canadian catch (C) from the stock complex. The estimate of C that is deducted from ABC will be no more than 20,000 mt for the New Brunswick weir fishery and no more than 10,000 mt for the Georges Bank fishery. With ABC set at 220,000 mt, OY could be less than or equal to 190,000 mt if the maximum catch is assumed for the Canadian herring fishery. The FMP also states that the establishment of OY will include consideration of relevant economic, social, and ecological factors and that, for this reason, OY may be less than ABC C. In addition, the Herring PDT recommended that OY be specified at a level lower than ABC for biological and ecological reasons.

As in 2005, OY is proposed to be specified at 150,000 mt, a level that can be fully harvested by the domestic fleet, thereby precluding the specification of a TALFF. This will enable the U.S. Atlantic herring industry to expand and will yield positive social and economic benefits to U.S. harvesters and processors.

NMFS proposes setting DAH at 150,000 mt. The highest level of landings in recent years was in 2001, when they reached 121,332 mt. The proposed DAH of 150,000 mt would allow a 23-percent increase in landings as compared to 2001, and reflect fishery performance in recent years, while at the same time giving the fishery an opportunity to expand. The proposed Area TACs would remain the same as they were in 2005. These area allocations are intended to permit the fishery to increase landings above the highest levels achieved in recent years. The highest recent landings in Area 2 were 27,198 mt in 2000; thus, the allocation would allow the fishery to slightly exceed that level. The highest recent landings in Area 3 were 35,079 mt in 2001; thus, the allocation would allow the fishery to exceed that level by a considerable amount because this is the area most likely to see expanded harvests.

The regulations, at § 648.200(e), allow for inseason adjustments of the herring specifications. Thus, if the herring fishery during the 2006 fishing year expands more than anticipated, the OY, the DAH, the DAP, and the area TACs could be increased to enable the fishery to perform to its fullest potential. Such increases would be constrained by the analysis that the Council included in the specification recommendations. That means that DAH and OY could be increased to a maximum of 180,000 mt, the DAP could be increased to a maximum of 176,000 mt, and the Area 2 TAC and the Area 3 TAC could be increased to 50,000 mt and 60,000 mt, respectively, which are the highest levels that the Council originally recommended and analyzed for each of these measures.

Since DAH is proposed to be set at 150,000 mt (of which 4,000 mt would be allocated for BT), DAP is proposed to be specified at 146,000 mt. It is certainly possible, given the capacity of the current harvesting fleet, the potential for market expansion to occur, and the expressed intent (made clear through public testimony) of the U.S. industry to increase its participation in the Atlantic herring fishery, that processors will utilize the recommended DAP. Because the Council's recommended DAP is sufficient to process the entire DAH (minus the BT), the Council and NMFS propose setting JVP at zero. Future JVP operations would likely compete with U.S. processors for product, which could have a substantial negative impact on domestic facilities in a market-driven fishery. This is consistent with the following relationship, which is specified in the FMP: DAH = DAP + JVPt + BT.

NMFS proposes setting USAP at 20,000 mt in Areas 2 and 3 only. USAP could provide an additional outlet for harvesters and, therefore, increase the benefits to the U.S. industry.

This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, which describes the economic impacts this proposed rule, if adopted, would have on small entities. A copy of the IRFA can be obtained from the Council or NMFS (see ADDRESSES ) or via the Internet at http://www.nero.noaa.gov . A summary of the analysis follows:

A description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to this proposed rule and is not repeated here.

During the 2003 fishing year, 154 vessels landed herring, 38 of which averaged more than 2,000 lb (907 kg) of herring per trip. There are no large entities, as defined in section 601 of the RFA, participating in this fishery. Therefore, there are no disproportionate economic impacts between large and small entities.

This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules.

Impacts were assessed by the Council and NMFS by comparing the proposed measures to the Atlantic herring landings made in 2003. The proposed specifications are not expected to produce a negative economic impact to vessels prosecuting the fishery because it allows for landings levels that are significantly higher than the average landings achieved by the fishery in recent years. The proposed 2006 specifications should allow for incremental growth in the industry, while taking into consideration biological uncertainty.

The specification of OY and DAH is proposed to be 150,000 mt for 2006. At this level, there could be an increase of up to 50,000 mt in herring landings, or $7,150,000 in revenues, based on an average price of $143/mt. This could allow individual vessels to increase their profitability under the proposed 2006 specifications, depending on whether or not new vessels enter the fishery (the herring fishery will remain an open-access fishery for the 2006 fishing year). The magnitude of economic impacts related to the 146,000-mt specification of DAP will depend on the shoreside processing sector's ability to expand markets and increase capacity to handle larger amounts of herring during 2006.

The potential loss associated with eliminating the JVPt allocation (20,000 mt for 2003 and 2004) could approximate $2.9 million (based on an average price of $143/mt) if all of the 20,000-mt allocation would have been utilized (10,000 mt for JVP and 10,000 mt for IWP). However, very little of the 10,000-mt JVP allocation was utilized in 2002 and 2003 and, as of August 2004, no JVP activity for herring had occurred during the 2004 fishing year. The Council received no indication that demand for the JVP allocation will increase in 2006. As a result, no substantial economic impacts are expected from reducing the JVP allocation to 0 mt in 2006, as vessels that sold fish in the past to JVP vessels could sell to U.S. processors.

The Area 1A and 1B TACs of 60,000 mt and 10,000 mt, respectively, have been unchanged since the 2000 fishery. In 2002 and 2003, the Area 1A TAC for the directed herring fishery was fully utilized and is expected to be fully utilized for the 2006 fishery. Therefore, no change is expected in profitability of vessels from the 2006 Area 1A specification. Since only 4,917 mt of herring were harvested in Area 1B in 2003, the proposed 2006 specification of 10,000 mt should allow for increased economic benefits to individual vessels prosecuting the fishery in this management area. The potential economic gains associated with allocating 20,000 mt for USAP could approximate $2.9 million (based on an average price of $143/mt) if all of the 20,000-mt allocation were utilized in 2006.

The Council analyzed four alternatives for OY and the distribution of TACs. One alternative would have retained the specifications implemented during the 2003 and 2004 fishing years, which would have maintained the OY at 180,000 mt. This OY is still roughly 80 percent greater than the average historical landings for this fishery, and therefore that level of OY would not pose a constraint on the fishery. The three other alternatives considered by the Council would set the OY at 150,000 mt. This is still roughly 50 percent greater than the average historical landings for this fishery, and, therefore, that level of OY would not pose a constraint on the fishery. Each of the alternatives that would set the OY at 150,000 mt would establish varying levels for the area TACs.

One alternative would have established the following TACs: Area 1A, 60,000 mt; Area 1B, 10,000 mt; Area 2, 20,000 mt; and Area 3, 60,000 mt. The only area TAC that would be lower than 2003/2004 under this option is the Area 2 TAC. The most recent year in which the landings from this area were greater than 20,000 mt (the proposed TAC) was 2000 (27,198 mt). The average landings from 2001 2003 were 14,300 mt, with 2003 landings at 16,079 mt. Under current market conditions, the new TAC may become constraining if the fishery in 2006 is similar to that in 2000. If this is the case, then the Area 2 TAC fishing season could end before the end of the year, creating a potential economic constraint on the fishery, especially if vessels are forced to travel farther (increased steaming time) to harvest in Area 3.

Another alternative considered would have established the following TACs: Area 1A, 45,000 mt; Area 1B, 10,000 mt; Area 2, 35,000 mt; and Area 3, 60,000 mt. With a 15,000-mt decrease in the combined Area 1 TACs, the economic impact of this option could be relatively large on vessels in the fishery that depend on herring in Area 1A, especially if those vessels are not able to move to other areas to obtain fish. Even if vessels could fish in other areas, their operating costs would be increased because of increased steaming time. An Area 2 TAC of 35,000 mt proposed under this alternative should not be constraining, given recent landings history.

The final alternative considered would have established the following TACs: Area 1A, 55,000 mt; Area 1B, 5,000 mt; Area 2, 30,000 mt; and Area 3, 60,000 mt. With a 10,000-mt decrease in the combined Area 1 TACs, the impact of this alternative would be very similar to the impact of the prior alternative, although not as severe. An Area 2 TAC of 30,000 mt proposed under this alternative should not be constraining, given recent landings history.