We are amending the “Domestic Quarantine Notices” in 7 CFR part 301 by adding a new subpart, “Potato Cyst Nematode” (§§ 301.86 through 301.86-9, referred to below as the regulations). The regulations quarantine parts of Bingham and Bonneville Counties, ID, due to the discovery of the potato cyst nematode there and restrict the interstate movement of regulated articles from the quarantined area.

The potato cyst nematode (PCN) ( Globodera pallida ) is a major pest of potato crops in cool-temperature areas. Other solanaceous hosts include tomatoes, eggplants, peppers, tomatillos, and some weeds. The PCN is thought to have originated in Peru and is now widely distributed in many potato-growing regions of the world. PCN infestations may be expressed as patches of poor growth. Affected potato plants may exhibit yellowing, wilting, or death of foliage. Even with only minor symptoms on the foliage, potato tuber size can be affected. Unmanaged infestations can cause potato yield loss ranging from 20 to 70 percent. The spread of this pest in the United States could result in a loss of domestic or foreign markets for U.S. potatoes and other commodities.

PCN is a soil-borne pest and is typically spread by the movement of infested soil, either soil itself or soil adhering to plants, farm equipment, or other articles. In some cases, PCN may be transported by wind and flood water.

In the absence of host plants on which to feed, PCN survives in soil as cysts. Mature brown cysts are the desiccated bodies of female nematodes, which contain eggs bearing juvenile nematodes. Each cyst may contain as many as 500 eggs. These durable cysts protect the eggs from physical damage, making it possible for the eggs to survive periods when host plants are not present. When host crops are present, PCN eggs are stimulated to hatch in the spring by chemicals exuded from the roots of the host crops. Once hatched, the juvenile nematode moves between soil particles and locates and invades host plant roots. The larvae will undergo three additional larval stages; the third and fourth stages occur inside the plant root. Once the larvae have entered the host plant root (usually at or near the growing point), they become sedentary. The females eventually become “sac-like,” with their posteriors protruding from the root, and can be seen as tiny white embedded objects along the host plant's roots. When the females die, their body walls gradually harden and darken to form the cysts.

When the nematode eggs are in the cysts, they are able to withstand chemical treatment. Since the cysts can survive in the absence of host plants for up to 30 years under ideal conditions, eradication of PCN has typically required long-term efforts. However, fumigants have been found to be effective at significantly reducing nematode cyst population levels in the absence of host plants, and repeated fumigations over a period of years can be used as an eradication tool.

On April 13, 2006, nematode cysts from a sample of soil from a potato grading station in Idaho were confirmed to be PCN. Extensive traceback activities have determined that at least seven fields located in Bingham and Bonneville Counties, ID, are infested. Cysts recovered from a field were officially confirmed to be PCN by the Animal and Plant Health Inspection Service's (APHIS) Plant Protection and Quarantine (PPQ) program on June 12, 2006. This is the first detection of PCN in the United States.

APHIS and the Idaho State Department of Agriculture are conducting ongoing detection and delimiting surveys of all fields adjacent to or otherwise potentially infested with PCN. A robust survey of fields where potatoes have been grown is currently taking place throughout the State of Idaho. Idaho has restricted the intrastate movement of certain articles from the infested area to prevent the spread of PCN within Idaho. However, Federal regulations are necessary to restrict the interstate movement of certain articles from the infested area to prevent the spread of PCN to noninfested areas of the United States. This interim rule establishes those Federal regulations, which are described below.

Section 301.86 prohibits the interstate movement of regulated articles from quarantined areas except in accordance with the regulations.

Section 301.86-1 contains definitions of the following terms: Administrator , Animal and Plant Health Inspection Service , associated field , certificate , compliance agreement , departmental permit , field , infestation (infested) , infested field , inspector , interstate , limited permit , moved (move, movement) , nursery stock , person , Plant Protection and Quarantine , potato cyst nematode , quarantined area , regulated article , and State.

Certain articles present a risk of spreading PCN if they are moved from quarantined areas without restrictions. We call these articles regulated articles. Paragraphs (a) through (h) of § 301.86-2 list the following as regulated articles:

• Potato cyst nematodes;

• PCN host crops: Potato, eggplant, pepper, tomatillos, and tomato;

• Root crops;

• Garden and dry beans and peas;

• All nursery stock;

• Soil, compost, humus, muck, peat, and manure, and products on or in which soil is commonly found, including grass sod and plant litter;

• Hay, straw, and fodder;

• Any equipment or conveyance used in an infested or associated field that could carry soil if moved out of the field; and

• Any other product, article, or means of conveyance that an inspector determines presents a risk of spreading the potato cyst nematode, after the inspector provides written notification to the person in possession of the product, article, or means of conveyance that it is subject to the restrictions of the regulations.

The last item listed above, which provides for the designation of “any other product, article, or means of conveyance” as a regulated article, is intended to address the risks presented by, for example, a truck with caked soil that could have come from an infested field; under this provision, an inspector would be able to designate that truck as a regulated article. This will allow an inspector to ensure that any measures necessary to mitigate the risk of spreading PCN are carried out.

Paragraph (a) of § 301.86-3 describes the process by which the quarantined area for PCN is designated. Under this process, the Administrator will designate as a quarantined area each field that has been found to be infested with PCN, each field that has been found to be associated with an infested field, and any area that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from infested or associated fields.

In the past, we have published the description of the quarantined area for our domestic quarantines in the regulations for those quarantines. For the potato cyst nematode, we will instead publish the description of the quarantined area on the PPQ Web site at http://www.aphis.usda.gov/plant_health/plant_pest_info/potato/pcn.shtml . The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. The description of the quarantined area may also be obtained by request from any local office of PPQ; local offices are listed in telephone directories. After a change is made to the quarantined area, we will publish a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined area.

Instead of including the description of the quarantined area in the regulations, the regulations set out a description of the criteria APHIS will use to designate a field as infested with PCN (an infested field) or as a field associated with an infested field (an associated field). These criteria are found in paragraph (c) of § 301.86-3. The regulations also state the conditions under which infested and associated fields will be removed from quarantine in paragraph (d) of § 301.86-3. Because we will not be publishing the description of the quarantined area in the regulations, we will be able to update it more quickly if an infestation of PCN is detected, thus allowing us to take prompt action to prevent the spread of PCN and providing necessary information to affected parties in a more timely manner. We believe our description of the criteria by which infested and associated fields will be designated and how the quarantined area will be determined will provide adequate notice regarding the criteria by which we will make changes to the quarantined area. We invite public comment on this approach to providing the public with a description of the quarantined area.

Paragraph (b) describes the conditions for the designation of an area less than an entire State as a quarantined area. Less than an entire State will be designated as a quarantined area only if the Administrator determines that:

• The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by the regulations on the interstate movement of regulated articles; and

• The designation of less than the entire State as a quarantined area will prevent the interstate spread of PCN.

We have determined that it is not necessary to designate the entire State of Idaho as a quarantined area. PCN has not been found in any area of the State other than portions of Bingham and Bonneville Counties, and Idaho has adopted and is enforcing restrictions on the intrastate movement of regulated articles from that area that are equivalent to those we are imposing on the interstate movement of regulated articles. Therefore, in accordance with the criteria described in the paragraphs (a) through (c) of § 301.86-3, we have designated the following area as a quarantined area:

Idaho. That part of Township 1 North, Range 37 East of the Boise Meridian that lies east and south of the Snake River, and sections 10 through 36 of Township 1 North, Range 37 East.

As mentioned earlier, paragraph (c) of § 301.86-3 sets out the criteria for designating a field as an infested or associated field. Paragraph (c)(1) states that the Administrator will designate a field as an infested field when PCN is found in the field. PCN is difficult to detect with the naked eye. It is typically found through surveys, soil sampling, and microscopic inspection.

Paragraph (c)(2) states that the Administrator will designate a field as an associated field when PCN host crops, as listed in § 301.86-2(b), have been grown in the field in the last 10 years and:

• The field shares a border with an infested field; or

• The field came into contact with a regulated article from an infested field within the last 10 years; or

• Within the last 10 years, the field shared ownership, tenancy, seed, drainage or runoff, farm machinery, or other elements of shared cultural practices with an infested field that could allow spread of PCN, as determined by the Administrator.

Fields will only be designated as associated fields under the last criterion above if the Administrator determines that one of the circumstances listed means that PCN could have been spread from an infested field to the associated field. If an infested field and a noninfested field share cultural practices, but the Administrator determines that the specific cultural practice that is shared does not pose a risk of spreading PCN, the noninfested field would not be designated as an associated field.

It should be noted that, because soil is a regulated article under § 301.86-2(f), the unauthorized movement of soil from an infested field to another field will cause that field to be designated as an associated field.

Paragraph (d) of § 301.86-3 described the conditions under which fields will be removed from quarantine. Under paragraph (d)(1), an infested field will be removed from quarantine when a 3-year biosurvey protocol approved by APHIS has been completed and the field has been found to be free of PCN.

The biosurvey protocol involves planting PCN host crops in soil from a field and sampling the soil for PCN. This process must be repeated three times, over three crop cycles, with negative results in order for APHIS to declare the field to be free of PCN and thus to remove the quarantine from an infested field. We are confident that such a process will be sufficient to establish freedom from PCN.

One means to ensure that a field is free of PCN is to avoid planting host crops in it for at least 30 years; as noted earlier, PCN can survive for up to 30 years in a dormant state without any host crops to feed on. PPQ is also developing a plan for eradicating PCN in infested fields. A draft of the eradication plan has guided our initial eradication efforts. We will use the data we gather from these efforts to further refine the eradication plan. When the plan is finalized, we will make it available to the public. Regardless of the eradication means used to ensure that a field is free from PCN, however, we would require the 3-year bioassay protocol to confirm that freedom.

Under paragraph (d)(2), an associated field will be removed from quarantine when the field has been found to be free of PCN according to a survey protocol approved by the Administrator as sufficient to support removal from quarantine. The survey protocol to designate an associated field as free of PCN is more thorough than the sampling process by which APHIS determines that PCN is not known to occur in a field, although not as intensive as the biosurvey protocol for infested fields. The additional steps required by the survey protocol to determine freedom are appropriate prior to releasing a field from quarantine entirely.

Paragraph (d)(3) states that if the Administrator has quarantined any area other than infested, adjacent, or associated fields because of its inseparability for quarantine enforcement purposes from infested or associated fields, as provided in paragraph (a) of this section, that area will be removed from quarantine when the relevant infested or associated fields are removed from quarantine.

This section requires most regulated articles moving interstate from quarantined areas to be accompanied by a certificate or a limited permit. The articles must be moved in accordance with §§ 301.86-5 and 301.86-8 and under any additional conditions issued by the Administrator to prevent the spread of PCN. The U.S. Department of Agriculture (USDA or the Department) may move regulated articles interstate without a certificate or limited permit if the articles are moved for experimental or scientific purposes.

Except for articles moved by APHIS or the Department, only a regulated article that is moved into the quarantined area from outside the quarantined area and that is accompanied by a waybill that indicates the point of origin may be moved interstate from the quarantined area without a certificate or limited permit. The article may not have been combined or commingled with other articles so as to lose its individual identity. Additionally, the article must be moved through the quarantined area without stopping (except for refueling and for traffic conditions such as traffic lights and stop signs), and the regulated article must not be unpacked or unloaded in the quarantined area.

Under Federal domestic plant quarantine programs, there is a difference between the use of certificates and limited permits. Certificates are issued for regulated articles when an inspector finds that, because of certain conditions (e.g., the article is from a field that has been surveyed for PCN by an inspector in the last 3 years and in which PCN has not been found, and no more than one PCN host crop has been grown in the field in the last 3 years), the regulated articles can be moved safely from the quarantined area without spreading PCN. Regulated articles accompanied by a certificate may be moved interstate without further restrictions. Limited permits are issued for regulated articles when an inspector finds that, because of a possible pest risk, the articles may be safely moved interstate only subject to further restrictions, such as movement to specified destinations and movement for limited purposes. Section 301.86-5 explains the conditions for issuing a certificate or limited permit.

Paragraph (a) of § 301.86-5 sets out the conditions under which an inspector or person operating under a compliance agreement will issue a certificate for the interstate movement of a regulated article. Paragraph (a)(1) provides that, to be eligible for a certificate, all regulated articles must be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of PCN. In addition, all regulated articles must be eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article. We have included a footnote (number 3) that provides an address for securing the addresses and telephone numbers of the local PPQ offices at which services of inspectors may be requested. We have also included a footnote (number 4) that explains that the Secretary of Agriculture may, under the Plant Protection Act, take emergency actions to seize, quarantine, treat, destroy, or apply other remedial measures to articles that are, or that he or she has reason to believe are plants pests or are infested, infected by, or contain plant pests.

Specific requirements apply to the movement of certain other regulated articles. These requirements are listed in paragraphs (a)(2) through (a)(7) of § 301.86-5.

Paragraph (a)(2) contains specific requirements that must be fulfilled for an inspector to issue a certificate for the movement of nursery stock. This paragraph addresses three classes of nursery stock:

• Potatoes intended for use as nursery stock (i.e., seed potatoes) are prohibited from moving interstate from the quarantined area. Because potatoes are the primary host of PCN, the interstate movement of living potatoes for planting would pose an extremely high risk of spreading PCN if we allowed it to occur.

• Nursery stock of PCN host crops other than potatoes , as listed in § 301.86-2(b), must have been grown in a field that meets the following requirements:

○ The field has been surveyed by an inspector for PCN at least once in the last 3 years;

○ PCN has not been found in the field; and

○ No more than one PCN host crop has been grown in the field in the last 3 years.

While these crops are not primary hosts, they could still serve as pathways for the spread of PCN; allowing their movement only from fields that have been surveyed and found to be free of PCN will effectively mitigate this risk.

• Nursery stock of non-host crops that is moved with soil (for example, nursery stock grown and moved in potting soil) must have been grown in a field that meets the requirements for nursery stock of PCN host crops listed above. The regulations include this requirement because the interstate movement of soil poses a high risk of spreading PCN, since PCN dwells in soil before infesting a host. Nursery stock of non-host crops that is moved without soil must have been found by an inspector to be free of soil on its roots and on all other parts of the plant, in order to ensure that the movement of nursery stock of these non-host crops poses no risk.

Paragraph (a)(3) addresses the movement of potatoes and root crops for consumption. Uses of potatoes and root crops produced for consumption include both table consumption and processing into products such as frozen french fries. Both potatoes and root crops moved for consumption are likely to carry soil, which poses a risk of spreading PCN. (Potatoes grown for use as nursery stock [seed potatoes] cannot be easily converted into potatoes grown for consumption.) Under paragraph (a)(3), an inspector may issue a certificate for the movement of potatoes or root crops intended for consumption from the quarantined area only if the field in which the potatoes or root crops have been grown meets the following requirements:

• The field has been surveyed by an inspector for PCN at least once in the last 3 years and prior to the planting of the potatoes or root crops;

• PCN has not been found in the field; and

• No more than one PCN host crop has been grown in the field the last 3 years.

Paragraph (a)(4) addresses soil and associated products. An inspector may issue a certificate for the interstate movement of a regulated article listed in § 301.86-2(e), which includes soil, compost, humus, muck, peat, and decomposed manure, and products on or in which soil is commonly found, including grass sod and plant litter, only if the article originated in a field that meets the following requirements:

• The field has been surveyed by an inspector for PCN at least once in the last 3 years;

• PCN has not been found in the field; and

• No more than one PCN host crop has been grown in the field the last 3 years.

Paragraph (a)(5) addresses hay, straw, and fodder. These commodities also pose a risk because they may have soil attached. Accordingly, an inspector may issue a certificate for the movement of hay, straw, or fodder from the quarantined area only if the field where the hay, straw, or fodder was produced meets the following requirements:

• The field has been surveyed by an inspector for PCN at least once in the last 3 years;

• PCN has not been found in the field; and

• No more than one PCN host crop has been grown in the field the last 3 years.

Alternatively, an inspector may issue a certificate for the interstate movement of hay, straw, or fodder if it is produced according to procedures judged by an inspector to be sufficient to isolate it from soil throughout its production and handling. Isolation of stored hay, straw, or fodder from soil is commonly accomplished by using asphalt, gravel, concrete, tarpaulins or pallets.

Paragraph (a)(6) addresses equipment used in infested or associated fields. An inspector may issue a certificate for the interstate movement of equipment that has been used in an infested or associated field and that could carry soil if moved out of the field only after the equipment has been pressure-washed under the supervision of an inspector to remove all soil or steam-treated in accordance with 7 CFR part 305. If properly performed, the pressure-washing will remove all soil from the farm equipment, and the soil adhering to the farm equipment is what poses a risk of spreading PCN from the quarantined area. Properly performed steam treatment kills PCN.

Paragraph (b)(1) of § 301.86-5 sets out general conditions for the issuance of a limited permit. An inspector may issue a limited permit for the interstate movement of a regulated article if the inspector determines that the article is to be moved to a specified destination for specified handling, utilization, or processing, and that the movement will not result in the spread of PCN because life stages of PCN will be destroyed by the specified handling, processing, or utilization. A limited permit will only be issued if the regulated article will be moved in compliance with any additional emergency conditions imposed by the Administrator under section 414 of the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of PCN, and if the regulated article is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.

Paragraph (b)(2) sets out specific conditions for the issuance of a limited permit for the interstate movement from the quarantined area of potatoes intended for consumption. We anticipate that potatoes intended for consumption that are not eligible to move from the quarantined area with a certificate under paragraph (a)(3) may nonetheless need to be moved from the quarantined area for packing or processing. This paragraph sets out specific conditions under which they may be moved. An inspector may issue a limited permit to allow the interstate movement of potatoes from the quarantined area for packing or processing only if:

• The potatoes are transported in a manner that prevents the potatoes and soil attached to the potatoes from coming into contact with agricultural premises outside the quarantined area; and

• The potatoes are processed and packed at facilities that handle potatoes, waste, and waste water in a manner approved by APHIS to prevent the spread of PCN.

As a matter of policy, we will not issue limited permits for potatoes grown in an infested field if they are grown in any year following the year in which PCN is initially detected in the field.

Paragraph (c) of § 301.86-5 allows any person who has entered into and is operating under a compliance agreement to issue a certificate or limited permit for the interstate movement of a regulated article after an inspector has determined that the article is eligible for a certificate or limited permit under § 301.86-5(a) or (b).

Also, § 301.86-5(d) contains provisions for the withdrawal of a certificate or limited permit by an inspector if the inspector determines that the holder of the certificate or limited permit has not complied with all of the provisions for the use of the document or with all the conditions contained in the document. This section also contains provisions for notifying the holder of the reasons for the withdrawal and for holding a hearing if there is any conflict concerning any material fact in the event that the person wishes to appeal the cancellation.

Section 301.86-6 provides for the use of and cancellation of compliance agreements. Compliance agreements are provided for the convenience of persons who are involved in the growing, handling, or moving of regulated articles from quarantined areas. A person may enter into a compliance agreement when an inspector has determined that the person requesting the compliance agreement has been made aware of the requirements of the regulations and the person has agreed to comply with the requirements of the regulations and the provisions of the compliance agreement. This section contains a footnote (number 7) that explains where compliance agreement forms may be obtained.

Section 301.86-6 also provides that an inspector may cancel the compliance agreement upon finding that a person who has entered into the agreement has failed to comply with any of the provisions of the regulations. The inspector will notify the holder of the compliance agreement of the reasons for cancellation and offer an opportunity for a hearing to resolve any conflicts of material fact in the event that the person wishes to appeal the cancellation.

Section 301.86-7 provides that any person (other than a person authorized to issue certificates or limited permits under § 301.86-5(c)) who desires a certificate or limited permit to move regulated articles must request, at least 48 hours before the desired interstate movement, that an inspector issue a certificate or limited permit. The regulated articles must be assembled in a place and manner directed by the inspector.

Section 301.86-8 requires the certificate or limited permit issued for movement of the regulated article to be attached, during the interstate movement, to the regulated article, or to a container carrying the regulated article, or to the consignee's copy of the accompanying waybill. Further, the section requires that the carrier or the carrier's representative must furnish the certificate or limited permit to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit.

Section 301.86-9 explains the APHIS policy that the services of an inspector that are needed to comply with the regulations are provided without cost between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays, to persons requiring those services, but that APHIS will not be responsible for any costs or charges incident to inspections or compliance with the provisions of the quarantine and regulations in this subpart, other than for the services of the inspector.

The phytosanitary treatments regulations contained in 7 CFR part 305 set out standards and schedules for treatments required in 7 CFR parts 301, 318, and 319 for fruits, vegetables, and articles to prevent the introduction or dissemination of plant pests or noxious weeds into or through the United States. Within 7 CFR part 305, § 305.2 lists approved treatments for pests associated with certain articles regulated in 7 CFR parts 301, 318, and 319.

Certain treatments listed in § 305.2 are approved for treating the golden nematode ( G. rostochiensis ) but not PCN. Due to the similar biology of these two pests, we believe that treatments approved to treat the golden nematode will be effective at treating PCN. Accordingly, we are amending § 305.2 to amend certain treatments for the golden nematode to approve their use on PCN as well. These treatments are:

• Steam sterilization treatment T-406d, used for construction equipment without cabs, used farm equipment without cabs, and used containers; and

• Steam cleaning treatment T-406c, used for automobiles and used farm equipment with cabs.

Section 305.2 also contains treatments for soil products that are approved to treat G. rostochiensis. However, the risk associated with moving soil from the PCN quarantined area is such that we are only allowing soil and soil products to move from the quarantined area with a certificate if they are from a field that has been surveyed by an inspector and found to be free of PCN. Therefore, we are not approving any of the treatments for soil products in § 305.2 to be used to treat PCN.

This rulemaking is necessary on an emergency basis to prevent the spread of PCN to noninfested areas of the United States.

This rule is being made effective on November 1, 2007, because the potato harvesting season in Idaho ends on that date, and regulated parties will need time to prepare for the changes in operations that will become necessary when this rule becomes effective. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

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

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

We are quarantining part of Bingham and Bonneville Counties, ID, because of the presence there of PCN and restricting the interstate movement of regulated articles from the quarantined area. This action is necessary on an emergency basis to prevent the spread of PCN to noninfested areas of the United States.

Tests conducted by PPQ on June 12 and July 13, 2006, confirmed the presence of PCN in soil samples taken from two fields in Bingham County. Subsequently, four additional fields in Bingham County and one field in Bonneville County were found to be infested. This is the first detection of PCN from fields in the United States.

In addition to potatoes, tomatoes, eggplant, peppers, tomatillos, and some weeds also serve as host to the potato cyst nematode. The interim rule regulates the movement of potatoes and other host crops, as well as plants with roots, root crops, soil, any equipment used on farms that can carry soil, and any other products, articles, or means of conveyance when determined by an inspector to present a hazard of spread of PCN.

Three different classes of nursery stock are regulated under the rule:

• Seed potatoes;

• Other host nursery stock (i.e. tomatoes, eggplant, peppers, and tomatillos); and

• Non-host nursery stock that is moved with soil.

Seed potatoes are prohibited from moving interstate from the quarantined area since this would pose a high risk of spreading PCN. Other host nursery stock and non-host nursery stock in soil may be moved out of the quarantined area if either originates from a field that has been inspected at least once in the last three years, the field has been found to be free of PCN, and no more than one PCN host crop has been grown in the field in the last three years. Non-host nursery stock that is bare-rooted may be moved from the quarantined area after inspection to ensure the roots and all other plant parts are free of soil.

Potatoes and root crops for consumption are allowed to move interstate from the quarantined area if the articles originate from a field found to be free of PCN, potatoes were grown in a field in which no more than one potato crop was grown in the previous 3 years, and articles are accompanied by a certificate. Soil, compost, humus, muck, peat, and manure, and products on or in which soil is commonly found, as well as hay, straw, or fodder may also move interstate from the quarantined area following the same criteria as that for potatoes and root crops for consumption. Interstate movement of equipment that has been used in an infested or associated field is allowed after the equipment has been pressure-washed under the supervision of an inspector to remove all soil or after it has been steam-treated.

Potatoes for consumption that are not eligible to move from the quarantined area with a certificate are allowed to move from the quarantined area under limited permit if they are moved and processed under conditions designed to prevent the spread of PCN. APHIS will not issue limited permits for potatoes grown in an infested field if they are grown in any year following the year in which PCN is initially detected in the field. There are no domestic restrictions against the movement of processed products.

APHIS is adding provisions for compliance agreements for entities operating inside the quarantined area to issue certificates and limited permits. An infested field will only be removed from quarantine after the completion of a 3-year biosurvey protocol approved by APHIS to determine whether the field is free of PCN. One means to ensure freedom of a field from PCN is not planting host crops in the area for at least 30 years; another is following the APHIS eradication plan. The list of quarantined areas will be maintained on the PPQ Web site.

U.S. production and exports. 1 Potatoes, excluding sweet potatoes, are a staple crop grown in a majority of U.S. States. They are also the lead vegetable crop in the United States. The Russet variety, which is planted in the spring and harvested in the fall, accounts for approximately 75 percent of the total U.S. acreage planted to potatoes. Ninety percent of all potatoes are harvested in the fall, with the remaining 10 percent harvested in the other three seasons. This 10 percent of production accounts for specialty varieties that typically command higher prices, such as round white, red, yellow, and purple potatoes.

From 2000 to 2005, acreage planted to fall potatoes and production of this variety decreased by 9 percent throughout the United States. The decline in Idaho's acreage and production was sharper, falling by 22 percent and 23 percent, respectively. Yields over the same period remained relatively stable in the United States as a whole and Idaho in particular. Fall potatoes are marketed year-round from July (early harvest areas) through June. Potatoes can be stored for long periods of time. This storage capability allows flexibility in marketing; sellers can hold their crop until more favorable prices prevail on the market. Fresh potatoes are mainly sold on the open market, not contracted. Processing potatoes, on the other hand, are typically contracted.

The United States ranks fourth in the world in potato production, trailing China, Russia, and India. Historically, the United States has been a net exporter of potatoes in value terms, with exports of processed potatoes accounting for a large portion of this surplus. In 2003 and 2004, an increase in imports of processed products from Canada tipped this balance so that the United States ran a trade deficit in those years. However, the imports of Canadian goods returned to historical levels in 2005, and the United States regained its status as a net exporter. Exports of potatoes are on the rise and now account for approximately one-third of the value of farm sales. Over half of these exports are processed products, primarily frozen french fries. Japan is the United States' largest importer of frozen fries, followed by Mexico and Canada. Canada is the largest supplier of U.S. potato imports.

Although historically Japan has been the largest importer of U.S. frozen potato products, that country banned imports of fresh potatoes from the United States starting in the 1950s. However, in February of 2006, Japan opened its market to the importation of fresh potatoes from approved facilities in 14 States: Arizona, California, Colorado, Florida, Idaho, Maine, Michigan, Minnesota, New Mexico, North Dakota, Texas, Oregon, Washington, and Wisconsin. The outbreak of PCN in Idaho led to Japan's reimplementation of its ban on fresh potatoes from the United States.

Idaho production and exports. Idaho specializes in production of fall potatoes. According to National Agricultural Statistics Service (NASS) data, there were no spring, summer, or winter potatoes produced in Idaho from 2000 to 2005. Over 65 percent of U.S. fall potatoes are grown in the Western States. Idaho and Washington account for 50 percent of the U.S. total, where planted acreage in Idaho is more than double that in Washington. Idaho's importance to the domestic potato industry also makes this State influential in the world market for potatoes. Idaho exports a substantial amount of potatoes on a yearly basis. However, the majority of these exports is in a processed form rather than fresh. This analysis only focuses on the fresh market since this is the portion that will be affected by the interim rule.

From 2001 to 2006, Idaho exported on average $6.2 million worth of table potatoes to countries around the world. On average, a large portion, 67 percent, of Idaho's fresh exports was destined for Canada. Mexico also imported potatoes from Idaho, accounting for 23 percent of Idaho exports. Japan, as mentioned previously, historically has prohibited imports of fresh potatoes from the United States. Thus, although Japan is a substantial importer of processed products, its imports of fresh potatoes are negligible or nonexistent. Together, Canada and Mexico accounted for approximately 90 percent of Idaho exports between 2001 and 2006, although Idaho's fresh potato sales worldwide and the combined share exported to Canada and Mexico have fluctuated substantially (table 2). Mexico has been an expanding market, with sales increasing 90-fold over this 6-year period, while exports to Canada have declined by more than half. In 2005, Idaho's potato exports to Mexico exceeded its potato exports to Canada for the first time.

Alternatives available to producers. Under the interim rule, producers have two options for dealing with an infestation of PCN. The first of these is a quarantine program. Under this program, producers are prohibited from planting potatoes or any other host crop in the quarantined area for a minimum of 30 years. APHIS has determined that not planting host material for this amount of time will ensure that the PCN infestation has died out before the quarantine is lifted. This is based on the fact that PCN can survive for up to 30 years in a dormant state without any host crops on which to feed.

Eradication is the second option available to affected potato producers. APHIS is currently working on a PCN eradication protocol. However, an approved protocol is not yet available. The eradication protocol will prevent producers from planting any crops on PCN affected and associated fields for a specified amount of time. However, APHIS will assume the costs of eradication for those producers wishing to participate in this program, to the extent that funds are available.

The Regulatory Flexibility Act requires that agencies consider the economic impact of rule changes on small businesses, organizations, and governmental jurisdictions. Section 603 of the Act requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the expected impact of rules on small entities. Sections 603(b) and 603(c) of the Act specify the content of an IRFA. In this section, we address these IRFA requirements.

APHIS is taking these actions based on the finding of PCN in Idaho. The quarantine measures are intended to curtail the spread of PCN to other areas of Idaho and the United States. The rule is likely to benefit a majority of potato producers in that it safeguards their fields from infestation. Additionally, declines in production resulting from the quarantine are not expected to be significant since the number of acres on which potatoes would not be grown accounts for only 0.3 percent of Idaho's potato acreage. 2

The objective of the interim rule is to prevent the spread of PCN by quarantining infested or associated fields or implementing APHIS approved eradication protocols for these fields. A widespread outbreak of PCN in Idaho could have devastating consequences for the U.S. potato industry. APHIS believes the implementation of the quarantine or eradication program and related movement restrictions will prevent the pest from spreading to other areas in Idaho and the rest of the United States.

This rule amends 7 CFR part 301 by adding a new subpart regulating PCN. The legal basis for the implementation of a quarantine to prevent the spread of PCN may be found in the Plant Protection Act (7 U.S.C. 7701 et seq. ), which authorizes the Secretary of Agriculture to implement programs and policies designed to prevent the introduction and spread of plant pests and diseases.

The PCN regulations being imposed by APHIS are intended to prevent the spread of the pest to additional areas. Approximately 2,500 of the 330,000 acres planted to potatoes in Idaho are regulated under the current quarantine as imposed by the Federal Order. The potential economic impacts of regulating this area are presented in the following paragraphs.

Given a quarantined area of approximately 2,500 acres, 800,100 pounds of production are estimated to be affected by the rule. 3 A reduction in production of this magnitude is not likely to have a significant economic impact on the potato industry. Despite the minimal impacts on domestic production, export markets have been closed due to the PCN outbreak. While Canada and Mexico have banned imports of fresh potatoes from Idaho, Japan has banned imports of fresh potatoes produced anywhere in the United States. However, export statistics indicate that the vast majority of U.S. potatoes are consumed domestically. From 2000 to 2005, exports of fresh and processed potatoes amounted to approximately 7 percent of domestic production. Based on current restrictions on U.S. imports resulting from the PCN outbreak, we expect exports to decline by approximately 19 percent, accounting for less than 2 percent of domestic production. The reduction in the value of exports is expected to be larger, since the United States exports more processed products than table potatoes. However, given that domestic demand and supply can fluctuate by as much as 4 percent from one year to the next coupled with the potato's storage capability, it is likely that the domestic market will be able to absorb the excess supply created by import bans placed on U.S. potatoes because of the discovery of PCN in certain parts of Idaho. 4

Producers subject to the quarantine may be negatively impacted by this regulatory action. Those with infested fields will not be able to plant any host crop, including potatoes, tomatoes, or eggplant, for at least 30 years if they are seeking to remove their fields from quarantine, unless a PCN eradication protocol approved by the Administrator is developed. However, producers may plant non-host crops on the quarantined acreage. In Bingham County, ID, the area planted to potatoes is second only to that planted to wheat. Producers in this county also grow corn, oats, barley, sugarbeets, and alfalfa hay. Based on historical production (table 3) and farmers' desire to make a profit, it is likely that farmers in the quarantined area would choose to plant one of these crops rather than forgo 30 years of revenue which could be generated from the land under quarantine. The planting decision would be a function of market prices, input costs, and expected government payments for those commodities classified as a program crop. Farmers may choose to plant one commodity or multiple commodities depending on these factors. Given alternative production opportunities, it is not clear how producers in the quarantined area would be affected. If the crops mentioned above are viable substitutes in production for the ineligible crops, producers will likely not face substantial impacts due to the quarantine regulations. APHIS welcomes public comment on this issue.

This rule revises the write-down servicing regulations of the Farm Service Agency's (FSA) Indian Tribal Land Acquisition Loan Program (ITLAP) to comply with section 203 of the Native American Technical Corrections Act of 2006, Public Law 109-221 (25 U.S.C. 494a) (“NATCA”).

ITLAP loans assist Native American tribes or tribal corporations with the acquisition of land interests within the tribal reservation or in an Alaskan community as set out in 7 CFR part 770. Loan funds may be used to acquire land, land interests and appurtenances which will be used for the benefit of the tribe or its members, pay costs for loan closing, and refinance non-USDA debts the applicant incurred to purchase the land in certain situations. During the life of the ITLAP loan the borrower has a number of servicing options available based on changes in their loan status. The servicing options available depend on each borrower's circumstances and can include reamortization, consolidation, interest rate reduction, deferral, land exchanges, debt writedown, release of reserve accounts, or a combination thereof.

Under 7 CFR 770.10(e) the Agency may reduce the unpaid principal and interest on an ITLAP loan based, in part, on the land sale value or rental value of the ITLAP property. The option used is as requested by the borrower or, if it requests both, the write-down is based on which option provides the greatest debt reduction. To be eligible for either writedown option the borrower must be in a persistent poverty county, have a per capita income for individual enrolled tribal members of less than 50 percent of the Federal poverty income rate, and have a tribal unemployment rate in excess of 50 percent.

In a rental value write-down, FSA reduces the unpaid principal and interest on the loan approved for the writedown so that the annual loan payment for the remaining term of each loan equals the average of annual rental value of the land purchased with the loan. The rental value writedown option was provided along with a few other changes to ITLAP regulations in a final rule published on February 11, 2005 (70 FR 7165). For determining the value of the property, that rule replaced the requirement for a full appraisal (i.e., combining comparable sales, income, and cost approaches) with a requirement for a study of the rental income of properties similar to and near the land purchased with ITLAP funds. See 7 CFR 770.2 and 770.10(e)(4).

Section 203 of the NATCA (effective May 12, 2006) provides:

Thus, this rule amends the definition of “rental value”, as it pertains to ITLAP, to provide that actual rents received will be used to determine the average rental value and the amount of write-down, rather than market rent, in accordance with the statute. Five years of data will be requested and yield the most reliable average, but the Agency will accept fewer years data if that is all that is available. If no actual rents have been received, then the borrower must provide a 5-year market value rent study. The economic and other effects of this change are difficult to estimate; however, it likely will reduce the borrower's costs, eliminate the time required to complete an appraisal, and reduce FSA's application processing time. On the other hand, the administrative costs to the Government will likely increase due to the change in calculating the amount of debt to be forgiven by rental value write-down.

Under the new write-down rules required under Section 203 of the NATCA, ITLAP borrowers will be able to use a 5-year average of actual rental income received on the land purchased with the ITLAP loan to determine any write-down amount requested. This provision increases the likelihood that principal and accrued interest write-downs will occur in the program and that higher ITLAP loan subsidy rates will follow. FSA estimates that a total of 3 current ITLAP borrowers will meet the new write-down criteria and the estimated costs of this rule are based upon the assumption that all 3 borrowers are likely to take advantage of the lower standards imposed by NATCA. These 3 borrowers owe approximately $20 million on loans that originally totaled $31 million. FSA estimates the taxpayer costs will increase by as much as $5 million as a result of write-downs to these 3 borrowers. Furthermore, future taxpayer costs are expected to increase slightly as a result of higher subsidy costs resulting from higher loan losses.

The notice and comment provisions of 5 U.S.C. 553 and the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804), relating to notices of proposed rulemaking and public participation in rulemaking, provide that certain rules may go forward without public notice and comment when they are in the public interest. This regulation adopts changes mandated in the NATCA Section 203. Accordingly, this rule is published without requesting public comment and will be effective 30 days after publication in the Federal Register .

This rule has been determined under Executive Order 12866 to be significant and was reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, the Agency has determined that there will be no significant economic impact on a substantial number of small entities. There are currently 24 ITLAP borrowers with 105 loans totaling $52 million. However, only about four are likely to be affected by this rule. The RFA requires agencies to consider the impact of their regulatory proposals on small entities, minimize small entity impacts, and provide their analyses for public comment. This rule affects Indian Tribes, and such Tribes are not small businesses as defined by and subject to the Regulatory Flexibility Act. Nevertheless, this rule provides a substantial reduction in cost to Tribes applying for debt write-down. Thus, to the extent an Indian Tribe may be affected by this rule, there are no negative impacts.

The environmental impacts of this rule have been considered consistent with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. , the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR part 1940, subpart G. FSA has determined that this rule will not have a significant impact on the human or natural environment and therefore requires no further environmental review.

This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with that Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR parts 11 and 780 must be exhausted before requesting judicial review.

As stated in the Notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983) the programs and activities within this rule do not require consultation with state and local officials under the scope of Executive Order 12372.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments or the private sector of expenditures of $100 million or more in any one year. This rule contains no Federal mandates, as defined by title II of the UMRA; therefore, this rule is not subject to sections 202 and 205 of the UMRA.

The policies contained in this rule do not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on state and local governments.

The information collections were previously approved under OMB control number 0560-0198, but the package was retired since there are less than ten respondents annually and the collections are, therefore, not subject to the Paperwork Burden Act. The number of estimated annual respondents is not increased by this rule.

The changes affect the following program listed in the Catalog of Federal Domestic Assistance: 10.421—Indian Tribes and Tribal Corporation Loans.

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

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

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

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

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

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

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

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

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

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

There are approximately 6,000 producers of almonds in the production area and approximately 110 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000.

Data for the most recently completed crop year indicate that about 52 percent of the handlers shipped under $6,500,000 worth of almonds. Dividing the average almond crop values for 2003-04, 2004-05, and 2005-06 as reported by the National Agricultural Statistics Service ($2.105 billion) by the number of producers (6,000) yields an average annual producer revenue estimate of about $350,000. Based on the foregoing, about half of the handlers and a majority of almond producers may be classified as small entities.

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

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

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

This action slightly modifies the reporting requirements for all California almond handlers. All handlers must currently report their interhandler transfers to the Board on ABC Form No. 7, “Interhandler Transfer of Almonds.” This form had been approved by the Office of Management and Budget (OMB) under OMB No. 0581-0178, Vegetable and Specialty Crops. This rule requires that two extra columns be added to this form. One column allows handlers to indicate whether or not the transferred almonds were treated to achieve a 4-log reduction in Salmonella . The second column provides for inclusion of a lot identification number for tracking purposes. In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35), the revised form has been submitted to the OMB for approval. Once approved, this information collection will be merged into OMB No. 0581-0178. It is estimated that it will take a handler about 0.5 hour per response, and that 50 handlers will respond and submit the form five times per year. Thus, the total annual reporting burden for the form is estimated at 125 hours per year.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

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

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

A proposed rule concerning this action was published in the Federal Register on June 8, 2007 (72 FR 31759). Copies of the rule were also mailed or sent via facsimile to all almond handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending August 7, 2007, was provided for interested persons to respond to the proposal.

One comment was received during the comment period in response to the proposal. The commenter asked if the same rules and safeguards apply to almonds imported from other countries. Almonds are not listed in section 8e of Act. Thus, imported almonds are not subject to comparable quality requirements as those in effect for the domestic commodity.

Accordingly, no changes will be made to the rule as proposed, based on the comment received.

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

After consideration of all relevant matters presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because mandatory compliance with the Salmonella treatment program began September 1, 2007, and this rule should be in place as soon as possible so the Board can track treated and untreated almonds. Further, handlers are aware of this action, which was unanimously recommended at a public meeting. Also, a 60-day comment period was provided for in the proposed rule, and the comment received was addressed herein.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want us to let you know we received your comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On November 11, 2003, Malibu Power & Propeller Int'l, LLC applied for a supplemental type certificate for the Piper Models PA-46-310P and PA-46-350P to install a full authority digital engine control in the Piper Models PA-46-310P and PA-46-350P. The Piper Models PA-46-310P and PA-46-350P, currently approved under Type Certificate No. A25SO, are six-place, pressurized, turbocharged, single-engine airplanes. Malibu Power & Propeller Int'l, LLC plans to use an electronic engine control instead of a traditional mechanical control system on the Piper Model PA-46-310P (Malibu) and PA-46-350P (Malibu Mirage) airplane. The electronic engine control system performs critical functions, such as the control of the ignition and fuel injection functions, throughout the operational envelope.

Under the provisions of § 21.101, Malibu Power & Propeller Int'l, LLC must show that the Piper Models PA-46-310P and PA-46-350P, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A25SO, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A25SO are as follows:

PA-46-310P and PA-46-350P:

No equivalent safety findings.

Special Conditions No. 23-ACE-53, Docket No. 082CE.

For PA-46-350P aircraft equipped with Piper factory installed Avidyne Entegra system (See Piper Report VB-1954), the additional certification basis for installation specific items only is: 14 CFR part 23, § 23.1529 as amended by Amendment 23-26, effective 14 October 1980; § 23.1523 as amended by Amendment 23-34, effective 17 February 1987; §§ 23.1322, 23.1331, 23.1357(a)(2), (b), (c), and (d) as amended by Amendment 23-43, effective 10 May 1993; §§ 23.305, 23.613, 23.773(a)(2), 23.1525, 23.1549(a) as amended by Amendment 23-45, effective 7 September 1993; §§ 23.301, 23.337(a)(1) and (b)(1), 23.341(a), 23.473, 23.561(b)(3) and (e), 23.571(a), 23.607, 23.611, as amended by Amendment 23-48, effective 11 March 1996; § 23.1303(a), (b), and (f), §§ 23.1307, 23.1309(a), (a)(1), (a)(2), (b), and (e), 23.1311(a)(2), (a)(3), (a)(4), (a)(5), (a)(6), (a)(7), (b), and (c), 23.1321(a), (c), (d), and (e), 23.1323(a) and (c), 23.1329, 23.1351(a)(1), (a)(2)(i), (b)(2), and (b)(3), 23.1353(d) and (h), 23.1359(c), 23.1365(a), (b), (d), (e), and (f), 23.1431(a) and (b) as amended by Amendment 23-49, effective 11 March 1996; § 23.1325(a), (b)(1), (b)(2)(ii), (b)(3), (c), and (e), 23.1543(b) and (c), 23.1545(a), (b)(3), (b)(4), and (c), 23.1555 (a) and (b), 23.1563, 23.1581(a), (b)(2), (b)(3), and (f), 23.1583(m), 23.1585(j) as amended by Amendment 23-50, effective 11 March 1996; § 23.777(a) and (b), 23.1337 as amended by Amendment 23-51, effective 11 March 1996; § 23.1305(a)(1), (a)(2), (a)(3), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6)(i) as amended by Amendment 23-52, effective 25 July 1996; Special Condition for HIRF (Docket No. CE215, Special Condition 23-154-SC), January 7, 2005.

Eligible Serial Numbers: 4636375 and up.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23, § 23.1309) do not contain adequate or appropriate safety standards for the Piper Models PA-46-310P and PA-46-350P because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Piper Models PA-46-310P and PA-46-350P must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36; and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as appropriate, as defined in § 11.19, as required by § 11.38 and they become part of the type certification basis under § 21.101.

The Malibu Power & Propeller Int'l, LLC modified Piper Model PA-46-310P and PA-46-350P airplanes will incorporate a novel or unusual design feature, an engine that includes a digital electronic engine control system with FADEC capability. The control system will be certificated as part of the engine. However, the installation of an engine with an electronic control system requires evaluation due to the possible effects on or by other airplane systems (e.g., radio interference with other airplane electronic systems, shared engine and airplane power sources). The regulatory requirements in 14 CFR part 23 for evaluating the installation of complex systems, including electronic systems, are contained in § 23.1309. However, when § 23.1309 was developed, the use of electronic control systems for engines was not envisioned; therefore, the § 23.1309 requirements were not applicable to systems certificated as part of the engine (reference § 23.1309(f)(1)).

Electronic control systems often require inputs from airplane data and power sources and outputs to other airplane systems (e.g., automated cockpit powerplant controls such as mixture setting). The parts of the system that are not certificated with the engine could be evaluated using the criteria of § 23.1309. However, the integral nature of systems such as these makes it unfeasible to evaluate the airplane portion of the system without including the engine portion of the system. Section 23.1309(f)(1) prevents complete evaluation of the installed airplane system since evaluation of the engine system's effects is not required.

Therefore, special conditions are proposed for the Malibu Power & Propeller Int'l, LLC modified Piper Model PA-46-310P and PA-46-350P airplanes to evaluate the installation of the electronic engine control system for compliance with the requirements of § 23.1309(a) through (e) at Amendment 23-49.

The Malibu Power & Propeller Int'l, LLC modified Piper Models PA-46-310P and PA-46-350P will incorporate the following novel or unusual design features: The Malibu Power & Propeller Int'l, LLC modified Piper Models PA-46-310P and PA-46-350P will incorporate a digital electronic engine control system.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Malibu Power & Propeller Int'l, LLC modified Piper Model PA-46-310P and PA-46-350P airplanes.

The installation of the electronic engine control system must comply with the requirements of § 23.1309(a) through (e) at Amendment 23-49. The intent of this requirement is not to reevaluate the inherent hardware reliability of the control itself, but rather determine the effects, including environmental effects addressed in § 23.1309(e), on the airplane systems and engine control system when installing the control on the airplane. When appropriate, engine certification data may be used when showing compliance with this requirement; however, the effects of the installation on this data must be addressed.

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain McDonnell Douglas Model MD-11, MD-11F, DC-10-30 and DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, and MD-10-30F airplanes. That NPRM was published in the Federal Register on June 5, 2007 (72 FR 31003). That NPRM proposed to require measuring the electrical resistance of the bond between the No. 2 fuel transfer pump adapter surface of the fuel tank and the fuel transfer pump housing flange, and performing corrective and other specified actions as applicable.

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

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

There are about 573 airplanes of the affected design in the worldwide fleet. This AD affects about 399 airplanes of U.S. registry. The required measurement takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of this AD for U.S. operators is $31,920, or $80 per airplane.

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 9, 2007 (72 FR 37124). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

To prevent the cockpit door windows separating from their frames, * * * The MCAI requires you to inspect the windscreen and cockpit door windows for signs of disbonding of the adhesive between the transparency and the composite window frame. If disbonding is evident, you must do the required modification.

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

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

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

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

We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it will take about 40 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $50 per product.

Based on these figures, we estimate the cost of this AD to the U.S. operators to be $22,750 or $3,250 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://dms.dot.gov ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section.

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all McDonnell Douglas Model 717-200 airplanes. That supplemental NPRM was published in the Federal Register on June 6, 2007 (72 FR 31206). That supplemental NPRM proposed to require inspecting the power conversion distribution unit (PCDU) to determine its part number, and modifying certain PCDUs. That supplemental NPRM also proposed to re-identify the part number reference for the proposed corrective action.

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

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

There are about 137 airplanes of the affected design in the worldwide fleet, of which about 108 airplanes are U.S. registered. The following tables provide the estimated costs for U.S. operators to comply with this AD. The total fleet cost could be as high as $434,592.

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

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

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

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

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

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

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

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

Background

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement the understandings reached at the annual plenary meeting of the Australia Group (AG) that was held in Paris on June 4-7, 2007. The Australia Group is a multilateral forum, consisting of 40 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

The understandings reached at the June 2007 annual plenary meeting included a decision to revise the AG “Control List of Biological Agents” by narrowing the scope of the listing for mycoplasma mycoides to include only the specific subspecies and strains of mycoplasma mycoides that are of most concern as the causative agents of disease in animals. This rule amends the EAR to reflect that decision by revising Export Control Classification Number (ECCN) 1C352, which controls certain animal pathogens, to narrow the scope of the listing for mycoplasma mycoides in this ECCN to include only the following subspecies and strains: Mycoplasma mycoides subspecies mycoides SC (small colony) and Mycoplasma capricolum subspecies capripneumoniae (“strain F38”). Mycoplasma mycoides subspecies mycoides SC (small colony) causes severe respiratory disease primarily in cattle (i.e., contagious bovine pleuropneumonia (CBPP)), while Mycoplasma capricolum subspecies capripneumoniae (“strain F38”) causes severe respiratory disease primarily in goats (i.e., contagious caprine pleuropneumonia (CCPP)).

Prior to the publication of this rule, ECCN 1C352 controlled all subspecies and strains of mycoplasma mycoides. Mycoplasma capricolum and F38-type caprine mycoplasma (i.e., mycoplasma F38), however, were listed separately under ECCN 1C360, which contains unilaterally controlled select agents not included on any of the AG Common Control Lists. The Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, and the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, maintain controls on the possession, use, and transfer within the United States of the unilaterally controlled select agents listed in ECCN 1C360, as well as certain AG agents and toxins listed in ECCN 1C352. Since mycoplasma F38 (i.e., Mycoplasma capricolum subspecies capripneumoniae (“strain F38”)) is now specifically identified and controlled under ECCN 1C352 and the select agent mycoplasma mycoides capri is no longer controlled under this ECCN, this rule makes conforming changes to the list of unilaterally controlled select agents in ECCN 1C360 by removing mycoplasma F38 from the listing of mycoplasma controlled under this ECCN and adding mycoplasma mycoides capri. All Mycoplasma capricolum, except subspecies capripneumoniae, continues to be controlled under ECCN 1C360.

The EAR license requirements that apply to the specific items affected by the amendments to ECCN 1C352 and 1C360 (described above) remain unchanged. The affected items in these ECCNs continue to require a license for export or reexport to all countries or destinations indicated under CB Column 1 or AT Column 1 on the Commerce Country Chart (Supplement No. 1 to Part 738 of the EAR).

This rule also amends the EAR to reflect the addition of Croatia as the newest participating country in the Australia Group (which now includes a total of 40 countries). Supplement No. 1 to Part 738 (Commerce Country Chart) is revised by removing the license requirements indicated for Croatia, under CB Column 2, to conform with the country scope of the CB license requirements that apply to other AG participating countries (see Section 742.2 of the EAR). Supplement No. 1 to Part 740 (Country Groups) is revised to add Croatia to Country Group A:3 (Australia Group). The definition of “Australia Group” in Section 772.1 of the EAR is updated by adding Croatia to the list of participating countries.

In addition to the AG plenary meeting changes described above, this rule amends the EAR by revising the Technical Note to ECCN 2B352.a to update a reference therein to the World Health Organization (WHO) “Laboratory Biosafety Manual” to identify the current edition of the manual (i.e., 3rd edition, Geneva, 2004). This WHO manual contains safety requirements for P3 or P4 (BL3, BL4, L3, L4) complete containment facilities.

Finally, this rule amends Supplement No. 2 to Part 745 of the EAR (titled “States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction”) by adding “Barbados,” which became a State Party to the CWC on April 6, 2007. As a result of this change, the CW (Chemical Weapons) license requirements and policies that apply to Barbados now conform with those applicable to other CWC States Parties, as described in Section 742.18 of the EAR. This rule also clarifies the scope of the entry for “China” in the list of CWC States Parties by revising the footnote to this entry to indicate that, for CWC purposes only, China includes “Macau,” as well as “Hong Kong.”

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2007, 72 FR 46137 (August 16, 2007), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

Shipments of items removed from eligibility for export or reexport under a license exception or without a license (i.e., under the designator “NLR”) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on October 12, 2007, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license (NLR) so long as they are exported or reexported before October 29, 2007. Any such items not actually exported or reexported before midnight, on October 29, 2007, require a license in accordance with this regulation.

“Deemed” exports of “technology” and “source code” removed from eligibility for export under a license exception or without a license (under the designator “NLR”) as a result of this regulatory action may continue to be made under the previously available license exception or without a license (NLR) before October 29, 2007. Beginning at midnight on October 29, 2007, such “technology” and “source code” may no longer be released, without a license, to a foreign national subject to the “deemed” export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this regulation.

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, as indicated in the ADDRESSES section of this rule.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

The final regulations that are the subject of the correction are under Sections 6038 and 6038A of the Internal Revenue Code.

As published, final regulations (TD 9338) contain an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the final regulations (TD 9338), which were the subject of FR Doc. E7-13587, is corrected as follows:

On page 38475, in the document heading, the language “RIN 1545- BG11” is corrected to read “RIN 1545-BE47.”

In 1995, the Department issued Interpretive Bulletin 95-1 (29 CFR 2509.95-1) (the IB), providing guidance concerning the fiduciary standards under Part 4 of Title I of ERISA applicable to the selection of annuity providers for purposes of pension plan benefit distributions. In general, the IB makes clear that the selection of an annuity provider in connection with benefit distributions is a fiduciary act governed by the fiduciary standards of section 404(a)(1), including the duty to act prudently and solely in the interest of the plan's participants and beneficiaries. In this regard, the IB provides that plan fiduciaries must take steps calculated to obtain the safest annuity available, unless under the circumstances it would be in the interest of the participants and beneficiaries to do otherwise. The IB also provides that fiduciaries must conduct an objective, thorough and analytical search for purposes of identifying providers from which to purchase annuities and sets forth six factors that should be considered by fiduciaries in evaluating a provider's claims paying ability and creditworthiness.

In Advisory Opinion 2002-14A (Dec. 18, 2002) the Department expressed the view that the general fiduciary principles set forth in the IB with regard to the selection of annuity providers apply equally to defined benefit and defined contribution plans. The opinion recognized that, the selection of annuity providers by the fiduciary of a defined contribution plan would be governed by section 404(a)(1) and, therefore, such fiduciary, in evaluating claims paying ability and creditworthiness of an annuity provider, should take into account the six factors set forth in 29 CFR 2509.95-1(c).

During 2005, the ERISA Advisory Council created the Working Group on Retirement Distributions & Options to study, in part, the nature of the distribution options available to participants of defined contribution plans. In November 2005, after public hearings and testimony, the Advisory Council issued a report, entitled Report of the Working Group on Retirement Distributions & Options, 1 concluding that many defined contribution plan distributions tend to be paid out in lump sums which “expose retirees to a wide range of risks including the possibility of outliving assets, investment losses, and inflation risk.” The Advisory Council recommended that the Department revise Interpretive Bulletin 95-1 to facilitate the availability of annuity options in defined contribution plans.

The Pension Protection Act of 2006 (the PPA) (Pub. L. 109-280, 120 Stat. 780) was enacted on August 17, 2006. Section 625 of the PPA directs the Secretary to issue final regulations within one year of the date of enactment, clarifying that the selection of an annuity contract as an optional form of distribution from an individual account plan is not subject to the safest available annuity standard under Interpretive Bulletin 95-1 and is subject to all otherwise applicable fiduciary standards.

Consistent with section 625 of the PPA, the Department is amending Interpretive Bulletin 95-1 to limit its application only to defined benefit plans. The Department is also proposing the adoption of a regulation, published in today's Federal Register , which, in the form of a safe harbor, provides guidance concerning the fiduciary considerations attendant to the selection of annuity providers and contracts for purposes of benefit distributions from individual account plans.

In order to implement the Congressional mandate of section 625 of the PPA and to eliminate any confusion regarding the applicability of the fiduciary standards set forth in IB 95-1 to the selection of annuity providers for the purpose of benefit distributions from individual account plans, the Department is amending Interpretive Bulletin 95-1 to provide that Interpretive Bulletin 95-1 is applicable only to the selection of annuity providers for the purpose of benefit distributions from a defined benefit pension plan.

Rulemaking under section 553 of the Administrative Procedure Act (APA) ordinarily involves publication of a notice of proposed rulemaking in the Federal Register and the public is given an opportunity to comment on the proposed rule. The APA authorizes agencies to dispense with proposed rulemaking procedures, however, if they find both good cause that such procedures are impracticable, unnecessary, or contrary to the public interest, and incorporate a statement of the finding with the underlying reasons in the interim final rule issued.

In this case, the Department finds that it is unnecessary to undertake proposed rulemaking with regard to the amendment of Interpretive Bulletin 95-1. The Department believes such rulemaking is unnecessary because section 625 of the Pension Protection Act of 2006 specifically directs the Secretary to issue final regulations within one year clarifying that the selection of an annuity contract as an optional form of distribution from an individual account plan is not subject to the safest available annuity standard under the Interpretive Bulletin 95-1. The amendment to Interpretive Bulletin 95-1 contained in this document does nothing more than limit, consistent with the statutory directive, the application of the Bulletin to defined benefit plans, thereby establishing that the “safest available” standard does not apply to individual account plans. To avoid any confusion on the part of the regulated community, the amendment includes a reference to separate guidance for the selection of annuity providers for individual account plans.

For the foregoing reason, the Department finds that proposed rulemaking procedures are unnecessary and is publishing the rule as an interim final rule. Nevertheless, the Department is affording interested persons the opportunity to comment on the amendment. Because the Department exercised very limited discretion in implementing the directive contained in section 625 of the Pension Protection Act of 2006, the Department is limiting the comment period to 60 days.

The Department invites comments from interested persons. To facilitate the receipt and processing of comments, EBSA encourages interested persons to submit their comments electronically to www.regulations.gov (follow instructions for the submission of comments) or e-ORI@dol.gov. Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Interpretive Bulletin 95-1. All comments will be available to the public, without charge, online at www.regulations.gov and http://www.dol.gov/ebsa, and at the Public Disclosure Room, Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC 20210 from 8 a.m. to 4:30 p.m. (Monday-Friday).

This interim final rule is effective 60 days after the date of publication in the Federal Register .

Under Executive Order 12866 (58 FR 51735), the Department must determine whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB). Section 3(f) of the Executive Order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. For purposes of Executive Order 12866, the Department has determined that it is appropriate to review the amendment contained in this document, which merely serves to make clear that the standards set forth in Interpretive Bulletin 95-1 no longer apply to individual account plans, in conjunction with the review of the proposed rule, also appearing in today's Federal Register , that establishes, in the form of safe harbor, standards for the selection of annuity providers and contracts by fiduciaries of individual account plans. As reflected in that analysis, the Department believes that these regulatory actions are not economically significant within the meaning of section 3(f)(1) of the Executive Order. The actions, however, have been determined to be significant within the meaning of section 3(f)(4) of the Executive Order, and the Department accordingly provides an assessment of the potential costs and benefits. See notice of proposed rulemaking appearing in today's Federal Register entitled Selection of Annuity Providers for Individual Account Plans.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq. ) and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency certifies that a proposed rule will not have a significant economic impact on a substantial number of small entities, section 603 of the RFA requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the notice of proposed rulemaking describing the impact of the rule on small entities and seeking public comment on such impact. Because this rule is being issued as an interim final rule, the RFA does not apply and the Department is not required to either certify that the rule will not have a significant impact on a substantial number of small businesses or conduct an initial regulatory flexibility analysis. Nevertheless, the Department has considered the likely impact of the interim rule on small entities in connection with its assessment under Executive Order 12866, described above, and believes this rule will not have a significant impact on a substantial number of small entities. See notice of proposed rulemaking appearing in today's Federal Register entitled Selection of Annuity Providers for Individual Account Plans.

This rulemaking is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 301 et seq. ) because it does not contain “collection of information” requirements as defined in 44 U.S.C. 3502(3). Accordingly, this interim final rule is not being submitted to the OMB for review under the Paperwork Reduction Act.

The interim final rule being issued here is subject to the provisions of the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ) and will be transmitted to Congress and the Comptroller General for review. The interim final rule is not a “major rule” as that term is defined in 5 U.S.C. 804, because it does not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, or Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the interim final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, or impose an annual burden exceeding $100 million on the private sector.

Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires Federal agencies to adhere to specific criteria in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This interim final rule does not have federalism implications because it has no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in the interim rule do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States.

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

On July 26, 2007, the Coast Guard authorized a temporary deviation [CGD01-07-093] to facilitate aerial cable installation at the bridge. Under that deviation the NJTRO Lower Hack Bridge remained closed for vessel traffic for four weekends, July 28 and 29, August 4 and 5, August 11 and 12, and August 18 and 19, 2007, from 7 a.m. each Saturday morning through 7 p.m. each Sunday evening.

The owner of the bridge, New Jersey Transit Rail Operation (NJTRO), requested a second temporary deviation to facilitate the completion of the aerial cable installation at the bridge. The aerial cable installation was unexpectedly not finished during the previously authorized temporary deviation, making additional time necessary for the completion of this project.

Under this temporary deviation the NJTRO Lower Hack Bridge need not open for the passage of vessel traffic for from 7 a.m. Saturday, September 22, 2007 through 7 p.m. on Sunday, September 23, 2007. Vessels that can pass under the bridge without a bridge opening may do so at all times. In the event of inclement weather, the rain dates will be September 29, 2007 and September 30, 2007.

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

The new Woodrow Wilson (lift) Bridge has a vertical clearance in the closed position to vessels of 75 feet, above mean high water.

Coordinators for the construction of the new Woodrow Wilson Bridge Project has requested a temporary deviation from the current operating regulations set out in 33 CFR part 117.255(a) to close the drawbridge to navigation to facilitate concrete pours at the rear and finger joints of the movable span.

To facilitate the concrete pours, the Woodrow Wilson Bridge will be maintained in the closed-to-navigation position from 7 a.m. on Monday, September 17, 2007 until and including 11:59 p.m. on Friday, October 19, 2007.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.

The Beach Channel Railroad Bridge, across Jamaica Bay, mile 6.7, at New York, New York, has a vertical clearance in the closed position of 26 feet at mean high water and 31 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.5.

The owner of the bridge, New York City Transit Authority, requested a temporary deviation to facilitate repairs to the bridge rails.

Under this temporary deviation, in effect for four successive weekends, the Beach Channel Railroad Bridge need not open for the passage of vessel traffic on Saturday and Sunday between 6 a.m. and 9 p.m. on September 8, 9, 15, 16, 22, 23, 29, and 30, 2007.

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

Constituency Effected: All Office of Research and Development award recipients for research grants and cooperative agreements.

Forty CFR part 40 establishes the applicable policies and procedures governing the award of research and demonstration grants by the EPA. The provisions found in part 40 are the principal mechanisms that ORD uses to provide grant assistance. This direct final rule will address an issue that has become an administrative burden for the EPA. The current regulation at § 40.125-1(a) restricts the budget period for research and demonstration projects to 24 months. This restriction is in conflict with 40 CFR Part 30 (Subpart A, Section 30.2(z)), which stipulates that the project period for grants is established through the award document, during which Federal sponsorship begins and ends. This section allows for the creation of project periods of up to 5 years through the award document (grant or cooperative agreement).

Project period definitions are historically based on grantee applications. The budget period limitation specified at § 40.125-1(a) has become a burden for EPA in both programmatic and administrative terms. This self imposed restriction has impacted active assistance agreements by requiring that grantees apply for budget period extensions for their project grants. Accordingly, the Agency is compelled to respond to these requests. Due to the unpredictability of research, many projects fail to adhere to the two-year time limitation set forth in part 40. These deviation requests have become a routine occurrence for many research grants. A recent procedures and policy review by the Grants Administration Division (GAD) identified this issue to the Agency and highlighted the administrative burden that has accompanied the processing of these rule deviations.

EPA's amendment of the rule is the final solution for the restrictive budget period limitation. This change will substantially reduce the administrative burden for the Agency and grantees by minimizing the number of administrative actions (i.e., deviations) that will be processed during the life of a grant or cooperative agreement. This change will not adversely affect any current or future research efforts.

This action announces EPA's amendment of 40 CFR 40.125.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , since the proposed change addresses an administrative requirement, which is internal to the Agency. No information will be collected from either current or future grantees by way of this proposed change.

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

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

This direct final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This direct final rule is not subject to notice and comment requirements under the APA or any other statute because this rule pertains to grant award and administration matters which the APA expressly exempts from notice and comment rulemaking requirements (5 U.S.C. 553(a)(2)).

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires that EPA identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The EPA has determined that this rule change contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. Additionally, the rule change does not contain any regulatory requirements that might significantly or uniquely affect small governments. UMRA does not apply to rules that govern the award and administration of grants. Thus, today's direct final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

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

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law, unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This proposed direct final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. Further, because this rule regulates the use of federal financial assistance, it will not impose substantial direct compliance costs to the states.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed direct final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This rule applies to the terms that define the availability of use for federal financial assistance for research and demonstration grants. Thus, Executive Order 13175 does not apply to this rule.

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

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed direct final rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), EPA is required to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices, etc.) that are developed or adopted by voluntary consensus standards bodies. The NTTAA requires EPA to provide Congress, through the Office of Management and Budget, an explanation of the reasons for not using such standards.

This proposed direct final rule does not involve any technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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

EPA has determined that this proposed direct final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it does not affect the level of protection provided to human health or the environment. This rule change pertains to grant award and administration matters.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 13, 2007.

On February 16, 2005, the North Carolina Department of Environment and Natural Resources submitted a SIP revision including changes to the MCAPCO, to be incorporated into the Mecklenburg County portion of the North Carolina SIP. The SIP revision includes changes to MCAPCO 2.0902, “Applicability,” and 2.0933, “Petroleum Liquid Storage in External Floating Roof Tanks.” Specifically, the changes to MCAPCO 2.0902 consist of a recodification, which is essentially a reorganization of the code, to remove obsolete provisions. The change to MCAPCA 2.0933 rewords a provision that was already incorporated into the SIP, and does not alter the meaning or interpretation of that provision.

EPA is approving the aforementioned changes to the Mecklenburg County portion of the North Carolina SIP, because the revisions are consistent with CAA and EPA regulatory requirements. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective November 13, 2007 without further notice unless the Agency receives adverse comments by October 12, 2007.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 13, 2007 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment .

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). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. As a result, the action does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 13, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0097 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before November 13, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0097, by one of the following methods.

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is (703) 305-5805.

In the Federal Register of June 6, 2007 (72 FR 31221) (FRL-8122-7), EPA issued a proposed rule to revoke, remove, modify, and establish certain tolerances and/or tolerance exemption for residues for the fungicides captan, dodine, and fenarimol; the herbicides 2,4-D, DCPA, endothall, propyzamide, ethofumesate, dimethipin and fomesafen; and the insecticide permethrin. Also, the proposal of June 6, 2007 (72 FR 31221), provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under the FFDCA standards.

EPA is revoking, removing, modifying, and establishing specific tolerances for residues of the fungicides captan, dodine, and fenarimol; the herbicides 2,4-D, DCPA, endothall, propyzamide, ethofumesate, dimethipin and fomesafen; and the insecticide permethrin in or on the commodities listed in the regulatory text.

EPA is finalizing these tolerance actions in order to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the FQPA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report of the Food Quality Protection Act (FQPA) Tolerance Reassessment Progress and Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend certain tolerance actions to be implemented to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone: 1 (800) 490-9198; fax: 1 (513) 489-8695; internet at http://www.epa.gov/ncepihom/ and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161; telephone: 1 (800) 553-6847 or (703) 605-6000; internet at: http://www.ntis.gov/ . Electronic copies of REDs and TREDs are available on the internet at: http://www.epa.gov/pesticides/reregistration/status.htm and in the pubic dockets EPA-HQ-OPP-2007-0097 and also EPA-HQ-OPP-2005-0266 (dodine); EPA-HQ-OPP-2004-0370 (endothall); EPA-HQ-OPP-2004-0380 (dimethipin); EPA-HQ-OPP-2002-0159 (propyzamide); EPA-HQ-OPP-2004-0346 (ethofumesate); EPA-HQ-OPP-2004-0385 (permethrin); EPA-HQ-OPP-2004-0167 (2,4-D); EPA-HQ-OPP-2004-0296 (captan) and EPA-HQ-OPP-2002-0250 and EPA-HQ-OPP-2005-0459 (fenarimol) at: http://www.regulations.gov .

In this final rule, EPA is revoking certain tolerances and tolerance exemptions because these specific tolerances and exemptions correspond to uses no longer current or registered under FIFRA in the United States. The tolerances revoked by this final rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. It is EPA's general practice to revoke those tolerances and tolerance exemptions for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance or tolerance exemption to cover residues in or on imported commodities or domestic commodities legally treated.

Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed in Unit II.A. if one of the following conditions applies:

1. Prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained.

2. EPA independently verifies that the tolerance is no longer needed.

3. The tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In response to the proposal published in the Federal Register of June 6, 2007 (72 FR 31221), EPA received two comments during the 60-day public comment period, as follows:

Comment--general. A comment was received from a private citizen that expressed concern with pesticide residues in general, that tolerance levels should be zero, and to disallow the use of numerous toxic chemicals.

Agency Response. The private citizen's comment did not take issue with the Agency's conclusion that specific tolerances in the proposed rule should be revoked, established and/or modified. The Agency conducts a detailed risk assessment to determine whether establishing and/or increasing tolerances is safe; i.e., there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue in accordance with FFDCA section 408, 21 U.S.C. 346a. Also, it is EPA's general practice to propose revocation of tolerances for residues of pesticide active ingredients on crop uses for which FIFRA registrations no longer exist. In developing REDs and TREDs, EPA worked with stakeholders, pesticide registrants, growers and other pesticide users, environmental and public health interests, the States, the U.S. Department of Agriculture (USDA), other Federal agencies, and others to develop voluntary measures or regulatory controls needed to effectively reduce risks of concern. Such options include voluntary cancellations of pesticide products or deletion of uses, declaring certain uses ineligible or not yet eligible and many other measures.

Comment--permethrin : A comment was received noting an inconsistency for the permethrin tolerance proposed in/on leaf petioles subgroup 4B at 5.0 ppm. The Agency proposed a tolerance for permethrin in/on leaf petioles subgroup 4B at 5.0 ppm when there is an existing tolerance for vegetable, leafy, except brassica, group 4 at 20 ppm, which is inclusive of the leaf petiole subgroup 4B. To correct this inconsistency, the commenter suggested either the proposed tolerance for leaf petioles should be dropped or the vegetable, leafy, except brassica, group 4 should be changed to leafy greens subgroup 4A.

Agency Response : The Agency proposed a tolerance of 5.0 ppm in/on leaf petioles subgroup 4B based on available field trial data that indicate residues of permethrin as high as 4.0 ppm in/on celery. The crop group tolerance in/on vegetable, leafy, except brassica, group 4 at 20 ppm was already in place and is inclusive of the leaf petioles subgroup 4B. Based on the proposal, tolerances of both 5.0 ppm and 20 ppm would exist on the commodities that are in both the leaf petioles subgroup 4B and the vegetable, leafy, except brassica, group 4, inadvertently creating an inconsistency. To correct this inconsistency, the Agency agrees with the commenter that the existing permethrin tolerance expression in/on vegetable, leafy, except brassica, group 4 at 20 ppm should be revised to leafy greens subgroup 4A at 20 ppm and establish the tolerance in/on leaf petioles subgroup 4B at 5.0 ppm as proposed.

The Agency did not receive comments on the following chemicals: Captan, 2,4-D, DCPA, dodine, dimethipin, endothall, ethofumesate, fenarimol, and formesafen. Therefore, the Agency is finalizing, with the exception of the fenarimol tolerance, the amendments proposed in the Federal Register of June 6, 2007 (72 FR 31221). The fenarimol tolerance on apple proposed at 0.3 ppm cannot be finalized at this time due to changes that have occurred that may affect the risk assessment for this chemical. For a detailed discussion of the Agency's rationale for the establishments, revocations, and modifications to the tolerances, refer to the June 6, 2007 proposed rule.

EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). In this final rule, EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes, and as follow-up on canceled uses of pesticides. As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standards under FQPA. The safety finding determination is found in detail in each RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A. of the proposed rule.

EPA has issued post-FQPA REDs for 2,4-D, dodine, DCPA, endothall, ethofumesate, permethrin, and dimethipin, and TREDs for captan, propyzamide, and fenarimol, whose REDs were both completed prior to FQPA. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including statements regarding additional data on the active ingredients that may be needed to confirm the potential human health and environmental risk assessments associated with current product uses, and REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FQPA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are made final in this document do not need such assessment when the tolerances are no longer necessary.

EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.

When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, the Agency gives consideration to possible pesticide residues in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, then tolerances do not need to be established for these commodities (40 CFR 180.6(b) and 180.6(c)).

These actions become effective on the date of publication of this final rule in the Federal Register because their associated uses have been canceled for several years. The Agency believes that treated commodities have had sufficient time for passage through the channels of trade.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by the FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that: (1) The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and (2) the residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

The tolerance revocations in this final rule are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standard established by the FFDCA. The same food safety standards apply to domestically produced and imported foods.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue levels (MRLs) established by the Codex Alimentarius Commission, as required by section 408(b)(4) of the FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this final rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A. of the proposed rule.

In this final rule, EPA is establishing tolerances under FFDCA section 408(e), and modifying and revoking specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866 due to its lack of significance, this final rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this final rule, the Agency hereby certifies that this action will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this final rule). Furthermore, for the pesticides named in this final rule, the Agency knows of no extraordinary circumstances that exist that would change EPA's previous analysis. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this final rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This final rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule.