On May 11, 2004, OMB established Title 2 of the CFR with two subtitles (69 FR 26275). Subtitle A, “Government-wide Grants and Agreements,” contains OMB policy guidance to Federal agencies on grants and agreements. Subtitle B, “Federal Agency Regulations for Grants and Agreements,” contains Federal agencies' regulations implementing the OMB guidance, as it applies to grants and other financial assistance agreements and nonprocurement transactions.

On August 31, 2005, the OMB published interim final guidance for government-wide nonprocurement debarment and suspension in the Federal Register (70 FR 51863). The guidance is located in title 2 of the CFR as new subtitle A, chapter 1, Part 180. The interim final guidance updated previous OMB guidance that was issued pursuant to Executive Order 12549, “Debarment and Suspension” (February 18, 1986), which gave government-wide effect to each agency's nonprocurement debarment and suspension actions. Section 6 of the Executive Order authorized OMB to issue guidance to Executive agencies on nonprocurement debarment and suspension, including provisions prescribing government-wide criteria and minimum due process. Section 3 directed Executive agencies to issue regulations implementing the Executive Order that are consistent with the OMB guidelines. On November 15, 2006, OMB published a final rule adopting the interim final guidance with changes (71 FR 66431).

In accordance with OMB's guidance, the EPA issues this final rule to adopt and implement Title 2 CFR, Part 180 with the same additions and clarifications that EPA made to the common rule on nonprocurement debarment and suspension in November 2003 (68 FR 66533).

The OMB has determined this rule nonsignificant.

This regulatory action will not have a significant adverse impact on a substantial number of small entities.

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. 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.

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

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.

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 30 days from the date of publication in the Federal Register .

Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. I. Introduction

1. The Federal Energy Regulatory Commission (Commission) is promulgating interim standards of conduct regulations that govern the relationship between natural gas transmission providers and their marketing affiliates to respond to the decision of the United States Court of Appeals for the District of Columbia concerning the Standards of Conduct for Transmission Providers under Order No. 2004. 1 In National Fuel Gas Supply Corporation v. FERC (National Fuel) , 2 the court found that the Commission did not support the standards of conduct's expansive definition of energy affiliates and vacated Order Nos. 2004, 2004-A, 2004-B, 2004-C and 2004-D (collectively referred to as Order No. 2004) as applied to natural gas pipelines, and remanded the orders to the Commission. 3 Specifically, the court rejected the Commission's attempt to extend the standards of conduct beyond pipelines' relationships with their marketing affiliates to govern pipelines' relationships with numerous non-marketing affiliates, such as producers, gatherers, and local distribution companies (energy affiliates). In light of this finding, the court found moot the other issues raised on appeal. 4

2. The purpose of this order is to repromulgate the standards of conduct not challenged in the National Fuel appeal in the interim while the Commission considers how to respond to the court's decision on a permanent basis. To that end, the Commission plans to issue a Notice of Proposed Rulemaking (NOPR) in the very near future. The interim rule will thus help eliminate any uncertainty about how the standards of conduct apply to natural gas transmission providers while the Commission develops a final rule.

3. The Commission believes that this interim rule is consistent with the court's decision in National Fuel and meets the standards for an interim rule without notice and comment under the Administrative Procedure Act as set out in the court's opinion in Mid-Tex Electric Cooperative, Inc. v. FERC (Mid-Tex) . 5 In Mid-Tex , the court reviewed the Commission's interim rule regarding the construction work in progress (CWIP) accounts for electric utilities that had previously been vacated and remanded by the court. 6 Despite objections to the interim CWIP rule, the court upheld the interim rule as consistent with the letter and spirit of its previous ruling. 7 The court concluded that the Commission could reasonably infer that should it become necessary or proper to provide a regulation prior to its full reconsideration of the CWIP issue, it may do so if it addresses the issues raised by the court. 8

4. The Mid-Tex court also concluded that the Commission had good cause to adopt an interim rule without prior notice and comment. 9 The Administrative Procedure Act permits rulemaking without prior notice and comment when an agency “for good cause * * * finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.”  10 In its order adopting the interim rule regarding CWIP, the Commission emphasized three factors for foregoing prior notice and comment. First, the Commission stressed both the interim nature of the CWIP rule and the ongoing public process in formulating a permanent CWIP policy. Second, the Commission observed that the fundamental policy underlying the CWIP had been accepted by the court. Third, the Commission took notice that an interim rule was needed to avoid regulatory confusion.

5. Guided by the standards in Mid-Tex , the Commission has structured this interim rule in accordance with the court's decision in National Fuel while the Commission conducts a public notice and comment process for promulgating a final rule. The Commission has adhered to both the letter and the spirit of the court's decision in National Fuel by fashioning an interim rule under which the standards of conduct do not apply to the relationship between natural gas transmission providers and energy affiliates, which is the aspect of the standards of conduct that the court found infirm.

6. The issuance of this interim rule is also consistent with the three factors articulated in Mid-Tex for issuing an interim rule without prior notice and comment under the Administrative Procedures Act. First, the Commission stresses that the instant interim rule is not intended to serve as a permanent rule and that it is commencing a rulemaking proceeding through the issuance in the very near future of a NOPR. Second, the interim rule follows both the letter and spirit of the court's opinion in National Fuel because, for natural gas pipelines, it eliminates the provisions of Order No. 2004 that were subject to appeal and instead adopts provisions originally promulgated in Order No. 497, which was upheld in relevant part by the court in Tenneco Gas v. FERC . 11 Third, the Commission needs to issue an interim rule to avoid regulatory confusion. When the Commission adopted Order No. 2004, it rescinded the standards of conduct promulgated by Order No. 497. 12 Because National Fuel vacated Order No. 2004 as applied to natural gas transmission providers, there are no existing regulations governing the relationship between natural gas transmission providers and their marketing affiliates. This interim rule repromulgates rules from Order No. 2004 that were not challenged on appeal. With respect to provisions that were challenged, as noted, the Commission is temporarily re-adopting the standards of conduct provisions promulgated under Order No. 497. Otherwise, there would be no rules in place governing the relationship between natural gas pipelines and their affiliates—a situation which the Commission believes would not be in the public interest as such rules have for almost two decades played an important role in the agency's program to ensure non-discriminatory access by pipeline customers to competitive wellhead markets.

7. Accordingly, in this interim rule, for natural gas transmission providers, the Commission modifies the regulations originally promulgated by Order No. 2004 consistent with the court's decision and issues appealed. The interim regulations will make clear that the standards of conduct apply to the relationship between natural gas transmission providers and marketing affiliates, and that the standards of conduct will not govern the relationship between natural gas transmission providers and their other energy affiliates. Because Order No. 2004 defined marketing differently than Order No. 497, the Commission is revising the definition of marketing consistent with Order No. 497. 13

8. Although the court did not consider petitioners' appeals with respect to specific sections of Part 358 as it vacated Order No. 2004 based on the lack of record support for the new definition of energy affiliate, the interim regulations will treat each of the sections challenged on appeal as if the court had held those sections infirm as well. Specifically, for natural gas transmission providers, the interim rule will: (1) omit restrictions on shared risk management activities and employees  14 and (2) revise the requirement to post all discretionary acts. 15 Also raised on appeal were two issues discussed in the preamble of Order No. 2004, but not codified in regulatory text. Here, too, although the court did not consider these issues, the Commission will incorporate into this preamble modifications consistent with petitioners' appeals of Order No. 2004 as if the court had ruled in their favor. Specifically, the Commission will (1) allow natural gas transmission providers to treat lawyers as permissibly shared employees; and (2) not require newly certificated natural gas pipeline transmission providers to observe the standards of conduct until they commence transmission services.

9. In the very near future, the Commission will issue a NOPR, which will seek comments on adopting permanent changes to Part 358 consistent with National Fuel . As a result, the Commission expects that the provisions in the interim rule will remain in effect until we have completed the rulemaking process for a final rule for Standards of Conduct for Transmission Providers. The Commission further expects the process for adopting a final rule to proceed without delay.

10. Prior to Order No. 2004, the Commission had two separate sets of regulations governing standards of conduct for transmission providers. The regulations applicable to natural gas pipelines were issued in Order No. 497 in 1988, 16 pursuant to the agency's statutory authority under sections 4 and 5 of the Natural Gas Act. 17 In 1996, the Commission issued Order No. 889, 18 which created standards of conduct regulations applicable to electric public utilities under sections 205 and 206 of the Federal Power Act. 19 Both rules had the same goal: To prevent transmission providers from exercising their control over transmission to engage in undue discrimination or preference in favor of their marketing affiliates over non-affiliates. Both rules employed the same general approach: Requiring employees engaged in transmission services to function independently from employees of its marketing affiliates and imposing prohibitions restricting transmission providers from sharing certain information with their marketing affiliates.

11. In Order No. 2004, the Commission revised the standards of conduct so that one set of standards of conduct applied uniformly to both natural gas pipelines and electric public utilities. 20 The Commission also expanded the coverage of the standards of conduct to govern the relationships between transmission providers and energy affiliates. 21 Previously, the standards of conduct governed the relationship between transmission providers and their marketing affiliates. 22

12. Five issues were appealed from Order No. 2004: (1) Extension of the standards of conduct to cover the relationship between natural gas transmission providers and their energy affiliates under section 358.3(d); (2) the scope of the restrictions on sharing risk management employees between the natural gas transmission providers and their marketing/energy affiliates under section 358.4(a)(6); (3) the scope of the restrictions on sharing lawyers between natural gas transmission providers and their marketing/energy affiliates; (4) the scope of the requirement that natural gas transmission providers post all discretionary acts under section 358.5(c)(4); and (5) the timing as to when newly certificated pipelines become subject to the standards of conduct.

13. In National Fuel , the court vacated Order No. 2004 as applicable to natural gas pipelines because of the expansion of the standards of conduct to include the new definition of energy affiliates. The court explained that the Commission relied on both theoretical grounds and on record evidence to justify this expansion. The court concluded that the Commission's record evidence did not withstand scrutiny and, thus, concluded the expansion was arbitrary and capricious in violation of the Administrative Procedure Act. 23 The court vacated Order No. 2004 as applicable to natural gas pipelines. In light of this disposition, the court did not address the other four issues raised on appeal regarding Order No. 2004.

14. Much of Order No. 2004 codified case-by-case exceptions that had evolved during the implementation of Order Nos. 497 and 889, which were beneficial to the natural gas transmission providers and not appealed. Some of the provisions under Order No. 2004 that were not challenged on appeal included: codifying exceptions to the independent functioning requirement;  24 revising information sharing prohibitions to reflect practical considerations  25 and emergency circumstances;  26 codifying a training requirement;  27 revising and imposing new posting requirements to improve transparency;  28 and requiring the transmission providers to designate a chief compliance officer. 29

15. This interim rule maintains one set of standards of conduct regulations for both the natural gas and electric utility industries. The Commission, however, is only making changes applicable to natural gas transmission providers consistent with National Fuel. Therefore, the interim rule makes inapplicable to natural gas transmission providers those portions of the standards of conduct that the court found unsupportable or that were challenged on appeal. However, it also repromulgates those sections that were not appealed and not found infirm.

16. In response to several informal inquiries, the Commission also clarifies that waivers or exemptions that the Commission issued under Order No. 2004 are not negatively impacted by the National Fuel decision.

17. Because the court's decision focused on the Commission's lack of evidence to support expanding the standards of conduct to govern the relationship between natural gas transmission providers and their energy affiliates, the interim rule adds a new provision stating that the standards of conduct do not govern the relationship between natural gas transmission providers and their energy affiliates. The effect of this change, along with the modification to the definition of marketing as discussed below, is that the standards of conduct for natural gas transmission providers will only govern the relationship between a transmission provider and its marketing affiliates, consistent with the prior standards of conduct before the adoption of Order No. 2004. New section 358.1(e) reads as follows:

18. Order No. 2004 revised the definition of marketing affiliate previously codified by Order No. 497. As a result, the interim rule will promulgate regulations that mirror the exceptions to the definition of marketing that were found in Order No. 497. 30 Specifically, a new provision at section 358.3(l) provides as follows:

19. Prior to Order No. 2004, the standards of conduct were silent on whether a transmission provider could share risk management employees with its marketing affiliates. In reviewing the standards of conduct procedures submitted by Vector Pipeline, however, the Commission held that a natural gas pipeline could not share risk management employees if the functions included assessing the creditworthiness of a transmission customer. 31 Subsequently, in Order No. 2004, the Commission reiterated that holding and permitted the sharing of risk management employees provided that they were not “engaged in transmission functions or sales or commodity functions with their Marketing or Energy Affiliate.”  32 INGAA appealed this issue.

20. As mentioned above, the court did not address the risk management exception in the independent functioning requirement. Still, because it was raised as an issue on appeal, the Commission believes that to be faithful to the court's decision, section 358.4(a)(6) must be amended. Therefore, the Commission is adding, on an interim basis, a second sentence to that section as follows:

This provision does not apply to natural gas transmission providers.

21. In Order No. 2004, the Commission required the transmission provider to maintain a log detailing the circumstances and manner in which it exercised discretion under any terms of its tariff and post it on its OASIS or internet Web site. 33 The regulatory language in Order No. 2004 was substantively identical to the requirement under Order No. 889, but it was different than the requirement under Order No. 497. Former section 161.3(k) promulgated under Order No. 497 required a pipeline to maintain a written log of waivers that the pipeline grants with respect to tariff provisions that provide for such discretionary waivers and provide the log to any person requesting it within 24 hours of the request. On appeal, one of the petitioners claimed that section 358.5(c)(4) was much broader than former section 161.3(k), arguing that there was a significant difference between granting waivers of tariff provisions that provide for such discretionary waivers (former section 161.3(k)) and exercising discretion under any terms of its tariff (section 358.5(c)(4)).

22. In response to the National Fuel decision, on an interim basis, the Commission is revising section 358.5(c)(4). First, we will make clear that 358.5(c)(4) only applies to electric public utility transmission providers and, second, we will adopt the language regarding discretionary waivers from Order No. 497 for natural gas transmission providers. Accordingly, we adopt the following language at section 358.5(c)(4):

23. The Commission recognizes that many natural gas transmission providers have put in place procedures to post information regarding discretionary waivers on their Internet Web sites. Of course, this is an acceptable means of complying with the requirement in lieu of providing the log to any person requesting it within 24 hours of the request.

24. With respect to the sharing of lawyers, under the Order No. 497 standards of conduct, lawyers were treated as permissibly shared employees. 34 Order No. 2004 was silent as to the classification of lawyers. In Order No. 2004-A, the Commission clarified that a lawyer who participates in transmission policy decisions on behalf of a Transmission Provider would be considered a transmission function employee (and hence, not permissibly shared). 35 Additionally, the Commission explained that lawyers may provide legal or regulatory advice in their traditional roles without becoming transmission function employees, 36 but, an individual's title of “lawyer” did not automatically exempt him/her from the independent functioning requirement. The Commission stated that if lawyers participate in transmission policy decisions on behalf of transmission providers, the Commission considers that participation to be a transmission function and the lawyers to be transmission function employees. 37 Following requests for clarification, the Commission stated that lawyers may provide legal or regulatory advice in their traditional roles without becoming transmission function employees, but to the extent that lawyers conduct transmission functions or are involved in planning, directing or organizing transmission functions, the lawyer's status as a “lawyer” does not exempt him/her from also being a transmission function employee. 38

25. This issue was appealed. In light of the court's decision, the Commission clarifies that participating in business decisions by rendering legal advice does not make a lawyer a transmission function employee. Since this issue was discussed in the preamble to Order No. 2004, there is no regulatory text to adopt or revise. However, this clarification is intended to provide direction to the natural gas industry that the Commission will treat lawyers as permissibly shared employees for natural gas transmission providers.

26. Under Order No 497, a natural gas transmission provider became subject to the standards of conduct when the transmission provider commenced transportation transactions with its marketing or brokering affiliate. 39 In the preamble of Order No. 2004, the Commission stated that newly formed transmission providers would become subject to the standards of conduct when the transmission providers begin soliciting business or negotiating contracts, as those are activities which the Commission considers transmission function activities. Since the timing of applicability of the standards of conduct was one of the items on appeal, the Commission will treat this issue as if the court had ruled against the Commission on this issue. As a result, the Commission will not require natural gas transmission providers to observe the standards of conduct until they commence transportation transactions with their marketing affiliates. Because this issue was discussed in the preamble to Order No. 2004, there is no regulatory text to adopt or revise. However, in the interim, the foregoing statement is intended to provide direction to the industry with respect to when the Commission will consider natural gas transmission providers subject to the standards of conduct.

27. The Office of Management and Budget (OMB) regulations require approval of certain information collection requirements imposed by agency rules. 40 Previously, the Commission submitted to OMB the information collection requirements arising from the standards of conduct adopted in Order No. 2004. OMB approved those requirements. 41 This interim rule does not impose any additional information collection burden on industry participants.

28. The Commission is submitting notification of the information collection requirements imposed in the Interim Rule to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act of 1995. 42 Comments are solicited on the Commission's need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods of minimizing respondent's burden, including the use of automated information techniques.

29. OMB regulations require OMB to approve certain information collection requirements imposed by agency rule. The Commission is submitting notification of this proposed rule to OMB.

Title: FERC-592.

Action: Proposed Collection.

OMB Control No: 1902-0157.

Respondents: Business or other for profit.

Frequency of Responses: On occasion.

Necessity of the Information: The information is necessary to ensure that all regulated transmission providers treat all transmission customers in a non-discriminatory basis.

Internal Review: The Commission has reviewed the requirements pertaining to natural gas pipelines and determined the interim rule is necessary to avoid a regulatory gap.

30. These requirements conform to the Commission's plan for efficient information collection, communication, and management within the natural gas and electric public utility industries. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information requirements.

31. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, [Attention: Michael Miller, Office of the Chief Information Officer], phone: (202) 502-8415, fax: (202) 208-2425, e-mail: Michael.miller@ferc.gov . Comments on the requirements of the proposed rule also may be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission].

32. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 43 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment. 44 The action proposed here falls within the categorical exclusions provided in the Commission's regulations because this rule is clarifying and corrective and does not substantially change the effect of the regulations being amended. 45 Therefore, an environmental assessment is unnecessary and has not been prepared in this rulemaking.

33. The Regulatory Flexibility Act of 1980  46 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. Because most transmission providers do not fall within the definition of “small entity,”  47 the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities.

34. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.

35. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

36. User assistance is available for eLibrary and the FERC's website during normal business hours from our Help line at (202) 502-8222 or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 502-8659. E-Mail the Public Reference Room at public.referenceroom@ferc.gov .

37. These regulations are effective on date of issuance. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. The Commission will submit the interim rule to both houses of Congress and the General Accounting Office. 48

Section 343(a) of the Trade Act of 2002, as amended (the Act; 19 U.S.C. 2071 note), required that CBP promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP-approved electronic data interchange (EDI) system before the cargo is brought into or departs the United States by any mode of commercial transportation (sea, air, rail or truck). The cargo information required is that which is reasonably necessary to enable high-risk shipments to be identified for purposes of ensuring cargo safety and security and preventing smuggling pursuant to the laws enforced and administered by CBP.

On December 5, 2003, CBP published in the Federal Register (68 FR 68140) a final rule to effectuate the provisions of the Act. In particular, a new § 123.92 (19 CFR 123.92) was added to the regulations to implement the inbound truck cargo provisions. Section 123.92 describes the general requirement that, in the case of any inbound truck required to report its arrival under § 123.1(b), if the truck will have commercial cargo aboard, CBP must electronically receive certain information regarding that cargo through a CBP-approved EDI system no later than 1 hour prior to the carrier's reaching the first port of arrival in the United States. For truck carriers arriving with shipments qualified for clearance under the FAST (Free and Secure Trade) program, § 123.92 provides that CBP must electronically receive such cargo information through the CBP-approved EDI system no later than 30 minutes prior to the carrier's reaching the first port of arrival in the United States.

On September 13, 2004, CBP published a notice in the Federal Register (69 FR 55167) announcing a test allowing participating Truck Carrier Accounts to transmit electronic manifest data for inbound cargo through ACE, with any such transmissions automatically complying with advance cargo information requirements as provided in section 343(a) of the Trade Act of 2002. Truck Carrier Accounts participating in the test were given the ability to electronically transmit the truck manifest data and obtain release of their cargo, crew, conveyances, and equipment via the ACE Portal or electronic data interchange messaging.

A series of notices announced additional deployments of the test, with deployment sites being phased in as clusters. Clusters were announced in the following notices published in the Federal Register : 70 FR 30964 (May 31, 2005); 70 FR 43892 (July 29, 2005); 70 FR 60096 (October 14, 2005); 71 FR 3875 (January 24, 2006); 71 FR 23941 (April 25, 2006); 71 FR 42103 (July 25, 2006); and 71 FR 77404 (December 26, 2006).

CBP continues to test ACE at various ports. CBP will continue, as necessary, to announce in subsequent notices in the Federal Register the deployment of the ACE truck manifest system test at additional ports.

In a notice published October 27, 2006, (71 FR 62922), CBP designated the Automated Commercial Environment (ACE) Truck Manifest System as the approved EDI for the transmission of required data and announced that the requirement that advance electronic cargo information be transmitted through ACE would be phased in by groups of ports of entry.

ACE will be phased in as the required transmission system at some ports even while it is still being tested at other ports. However, the use of ACE to transmit advance electronic truck cargo information will not be required in any port in which CBP has not first conducted the test.

The October 27, 2006, document identified all land border ports in the states of Washington and Arizona and the ports of Pembina, Neche, Walhalla, Maida, Hannah, Sarles, and Hansboro in North Dakota as the first group of ports where use of the ACE Truck Manifest System is mandated.

Applicable regulations (19 CFR 123.92(e)) require CBP, 90 days prior to mandating advance electronic information at a port of entry, to publish notice in the Federal Register informing affected carriers that the EDI system is in place and fully operational. Accordingly, CBP is announcing in this document that, effective 90 days from the date of publication of this notice, truck carriers entering the United States at any land border port of entry in the states of California, Texas, and New Mexico will be required to present advance electronic cargo information regarding truck cargo through the ACE Truck Manifest System.

Although other systems that have been deemed acceptable by CBP for transmitting advance truck manifest data will continue to operate and may still be used in the normal course of business for purposes other than transmitting advance truck manifest data, use of systems other than ACE will no longer satisfy advance electronic cargo information requirements at a port of entry in California, Texas and New Mexico as of April 19, 2007.

CBP will be publishing subsequent notices in the Federal Register as it phases in the requirement that truck carriers utilize the ACE system to present advance electronic truck cargo information at other ports. ACE will be phased in as the mandatory EDI system at the ports identified below in the sequential order in which they are listed. The sequential order provided below is somewhat different from that announced in the October 27, 2006, notice. Although further changes to this order are not currently anticipated, CBP will state in future notices if changes do occur. In any event, as mandatory ACE is phased in at these remaining ports, CBP will always provide 90 days' notice through publication in the Federal Register prior to requiring the use of ACE for the transmission of advance electronic truck cargo information at a particular group of ports.

The remaining ports at which the mandatory use of ACE will be phased in, listed in sequential order, are as follows:

1. All ports of entry in the state of New York and Michigan.

2. All ports of entry in the states of Vermont, New Hampshire, and Maine.

3. All ports of entry in the states of Idaho and Montana.

4. The remaining ports of entry in the state of North Dakota and the land border port of Minnesota.

5. All ports of entry in the state of Alaska.

In FR Doc. E6-21591, appearing on page 75865 in the Federal Register of Tuesday, December 19, 2006, the following corrections are made to the SUPPLEMENTARY INFORMATION .

1. On page 75868, in the second column, section III of the document is corrected to read:

FDA has examined the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of the rule on small entities. Because this final rule will not result in economic impacts on domestic small entities, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any Federal mandate that may result in the expenditure of State, local and tribal governments, in the aggregate, or the private sector of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current (2005) implicit price deflator for the Gross National Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

The information in the following sections sets forth the bases for the previous conclusions. We show the expected annual costs and benefits of this final rule next in table 1. The average annualized costs of the final rule are estimated to be $6.6 million using either a 3-percent or 7-percent discount rate. Average annualized benefits are expected to be between $14.8 million and $15.1 million, depending on the discount rate. Average annualized net benefits are between $8.2 million and $8.5 million.

The objective of the final rule is to reduce the risk of transmission of blood-borne pathogens (particularly human immunodeficiency virus (HIV), hepatitis B (HBV), and hepatitis C (HCV) infections). The rule accomplishes this objective by ensuring that medical gloves (surgeons' and patient examination gloves) maintain a high level of quality with respect to the level of noted defects. FDA is also harmonizing its level for acceptable defects with consensus quality standards developed by ISO and ASTM.

Unnecessary exposures to blood-borne pathogens are of great importance to the health care community because contact with contaminated human blood or tissue products has led to increased cases of HIV, HBV, and HCV infections.

Available data cannot precisely quantify the number of new HIV cases that this final rule will prevent. This analysis, however, attempts to derive a conservative estimate. For the year 2000, the Centers for Disease Control (CDC) reported a cumulative total of approximately 900,000 persons in the United States who had contracted HIV, of which 775,000 cases had progressed to Acquired Immunodeficiency Syndrome (AIDS). Of those patients whose conditions had progressed to AIDS, almost 450,000 (58 percent) had died as of December 2000. For the year 2000, the CDC identified 21,704 new cases of HIV infection (Ref. 1).

Approximately 5 percent of the reported HIV/AIDS cases were among health care personnel (Ref. 2). However, in an indepth analysis of occupational risk, the CDC reported that between 1992 and 2002 there had been 56 identified incidents of occupational transmission of the HIV pathogen and all but 7 of these cases (12.5 percent) were due to percutaneous cuts or needlesticks. In addition, there were 138 other cases of HIV infection or AIDS among health care workers with occupational exposures to blood who had not reported other risk factors for HIV infection (Ref. 3). Assuming the same 12.5-percent rate for these workers implies that 17 additional cases of HIV transmission to health care workers during this period might have been caused by cutaneous contact in an occupational setting. Consequently, a total of 24 incidents of occupational transmission of HIV to health care personnel may have occurred over the 10-year period (or 2.4 per year) due to problems with the barrier protection properties of gloves used in health care settings.

The CDC also reports approximately 80,000 new cases of HBV for the latest available reporting period (2001) (Ref. 4). There are approximately 1.25 million people in the United States chronically infected with HBV. While only 6 percent of those who contract hepatitis B after the age of 5 will develop chronic conditions, 15 to 25 percent of those that do will die prematurely. Health care personnel are at some risk from this pathogen, but the availability of a vaccine has reduced the risk of negative outcomes due to exposure. (Ref. 5).

FDA has no direct data for estimating the rate of new HBV infections in health care personnel. While the CDC has reported the risk to health care workers as “low,” there is no definition of that term (Ref. 6). FDA estimates that as many as 4,000, or 5 percent, of all new incidents of HBV occur in health care personnel. Because occupational transmissions for HBV may be approximately 5 times more likely than that for HIV, FDA imputes approximately 140 annual cases of occupational transmission of HBV to health care personnel (HIV rate of 7.3/1,085 x 5 x 4,000). CDC analyses communicate that a large portion of HBV infections in health care personnel are the result of direct or indirect blood or bodily fluid exposures that inoculated HBV into cutaneous scratches, abrasions, burns, other lesions, or on mucosal surfaces (Ref. 7). Because 2.4 of the 7.3 annual HIV cutaneous contact transmissions (33 percent) were believed to be attributable to glove defects, FDA similarly expects about one-third of the 140 annual occupational transmissions of HBV infections (approximately 40 cases) may potentially be associated with the current quality level of medical gloves. If only 6 percent of these cases develop chronic conditions, then an average of 2.4 annual cases of chronic HBV are associated with defective medical gloves.

HCV currently infects 3.9 million persons in the United States. Over 2.7 million patients have reported chronic conditions. (Ref. 8). More than 40,000 new cases were reported in 1999. The risk of exposure to health care workers, however, appears to be extremely low. In fact, according to the CDC, other than from needle stick punctures, there has been no documented transmission of HCV to health care personnel from intact or non-intact skin exposures to blood or other fluids or tissues (Ref. 9). Thus, there is little evidence that glove defects are associated with HCV exposures.

As a result, FDA estimates the overall annual transmission of blood-borne pathogens due to defects in glove barrier protection in health care settings to include 2.4 cases of HIV infection and 2.4 cases of HBV infection. Increasing the AQL of gloves by lowering the rate of acceptable defects should reduce the transmission rates of these pathogens.

The previous AQL (being replaced by this rule) for medical gloves allowed a defect rate of 4.0 percent for patient examination gloves and 2.5 percent for surgeons' gloves. The AQL represents the proportion of sampled gloves from a given lot that may include defects such as leaks or foreign material and still be accepted for entry into the marketplace. Currently, if more than 4 percent of the sampled patient examination gloves exhibit defects in accordance with the sampling criteria, the entire lot of gloves is considered adulterated. Surgeons' gloves are sampled to a higher quality level (lower AQL requires a higher proportion of non-defective gloves in order to pass inspection), because these products have a higher likelihood of contact with bodily fluids. Of course, medical glove lots that fail to meet the AQL may be marketed as household or other products. If a sample of gloves fails to meet the AQL, the marketer may request resampling of the lot. The required sampling plan for a lot originally found to be out of compliance is more intensive than the original sampling plan for a randomly selected lot. Lots initially found to be out of compliance are either resampled and subsequently offered as medical devices after meeting the current AQL, offered as nonmedical gloves, or sold in foreign markets.

Approximately 39.5 billion medical gloves were imported into the United States during 2004 (Ref. 10). According to FDA records, there are over 400 manufacturers of medical gloves. Malaysian manufacturers supply almost 40 percent of the medical gloves in the United States while Thailand manufacturers supply approximately 30 percent (Ref. 11). Surgeons' gloves accounted for only about 15 percent of all imported medical gloves during 2004, and the impact of the final rule on this sector is negligibly different from overall patient examination gloves. Therefore, this analysis focuses exclusively on patient examination gloves.

FDA expects the demand for medical gloves to increase by the same rate as employment in the medical services industry. The Bureau of Labor Statistics has projected annual employment growth of 2.6 percent for this industry (North American Industry Classification System 6200) (Ref. 12), which implies an annual volume of over 50 billion medical gloves in 10 years. (A 2.6 annual growth rate results in an expected increase of 29.3 percent in 10 years.)

Medical glove lot sizes may vary from as few as 25 gloves to as many as 500,000. According to discussions with manufacturers (Eastern Research Group, Inc. (ERG), 2001), a typical production or import lot from a foreign manufacturer contains an average of 325,000 gloves (either patient examination or surgeons'). This implies that the U.S. medical glove market currently imports over 120,600 lots of gloves per year. FDA currently samples only about 1.5 percent of all glove lots, or 1,800 lots per year. Within 10 years, FDA expects the number of lots offered for import to increase to 156,000. If the compliance sampling rate remains constant, FDA would sample about 2,300 lots during that year.

FDA's Winchester Engineering and Analytical Center (WEAC) analyzed results from samples collected from 2000 and 2001. These samples represent approximately one-third of FDA's total sampling effort for the period. (Ref. 13). A total of 98,067 gloves were tested from 942 separate lots. Of these gloves, 2,354 were defective, which implies that 2.4 percent of marketed gloves are likely to be defective. (Ref. 14) If so, then approximately 940 million defective medical gloves are currently marketed (39.2 billion gloves x 0.024). At the current AQL of 4.0, 28 lots (2.97 percent) failed. Consequently, approximately 53 annually sampled lots are defective (1,800 sampled lots x 0.0297). By the 10th year, in the absence of the final regulation, 1.21 billion defective gloves would be marketed and 68 of the sampled lots would fail to meet the AQL.

FDA allows glove lots that fail to meet the AQL to be resampled. Sponsors usually attempt to resample the glove lot rather than divert the entire lot to alternative markets. According to discussions with industry sources and testing laboratories, the cost of glove lot resampling and retesting for leakage and tensile strength is approximately $1,400. The current annual industry cost of resampling glove lot failures with the current AQL is approximately $74,000 (53 lots times $1,400 per lot). This resampling and retesting cost would equal $95,000 within 10 years.

FDA expects that the final rule will result in changed shipping practices by medical glove manufacturers. Currently, manufacturers use the target AQLs as a guide for releasing production lots of gloves for export to the United States because the release criteria are lower in the United States than in other markets. Manufacturers attempt to avoid having three failures within a 24-month period, because this may result in refusal of future imports under Level 3 detention described in FDA's current policy, “Surveillance and Detention Without Physical Examination of Surgeon's and/or Patient Examination Gloves.” Thus, to maintain an uninterrupted supply of gloves to customers, and to guard brand loyalty while avoiding Level 3 detention, manufacturers would be expected to raise their level of quality control to at least maintain the current average lot rejection rate of 2.97 percent. FDA also expects the rule to increase the costs of sampling by requiring larger and more detailed sampling plans to assure the lower AQL is met for each inspected glove lot. FDA does not envision increased regulatory oversight costs because the rate of inspections is not expected to change. Costs have been analyzed and discounted using the methodology suggested by the Office of Management and Budget's (OMB's) Circular A-4 (September 2003).

Manufacturers currently conduct quality control tests on glove lots prior to release. These tests include water-tight leak and tensile strength assays. According to interviews with glove manufacturers, the current cost of conducting these tests at the manufacturing site is approximately $310 per lot, while the more stringent quality control testing required by this rule may cost an additional $45 per lot. The additional cost is for increased inventory and larger sample sizes to ensure more precise measurements at the lower AQL. Because approximately 120,600 lots are currently imported per year, the expected costs are $5.4 million (120,600 lots x $45 per lot). The expected increase in the demand for medical gloves by the 10th evaluation year will result in a compliance cost of meeting this increased quality level of $7.0 million. Over the 10-year period, the average annualized cost of this increased level of testing, at a 3-percent annual discount rate, is $6.2 million and, at a 7-percent annual discount rate, is $6.2 million.

A lower AQL will result in increased sampling costs for imported glove lots. The increased sampling costs will result from the need to test greater quantities of gloves in order to ensure sufficient statistical power. Based on reported costs from U.S. testing laboratories, ERG, an independent economic contractor, estimated that increased testing would add approximately $200 to the current costs of $1,400 per sample. (The difference between this increased cost and the $45 increased quality control cost is attributable to lower costs in foreign countries that produce medical gloves.) FDA currently samples about 1.5 percent of the 120,600 lots imported annually, or 1,800 samples. Thus, the increased sampling costs due to this final rule are $0.4 million (120,600 lots x 0.015 x $200). Within 10 years, this increased cost will equal $0.5 million (due to expected increases in the number of inspected glove lots). The average annualized sampling cost increase at a 3-percent annual discount rate is $0.4 million, and at a 7-percent annual discount rate is $0.4 million.

The lower AQL in this final rule is also likely to result in an increase in the number of lots of medical gloves that are not released for shipment to the U.S. medical market. For example, manufacturers may attempt to maintain a target compliance level in order to avoid FDA's Level 3 detention under “Surveillance and Detentions Without Physical Examination of Surgeon's and or Patient Examination Gloves.” FDA's WEAC laboratory sampled 942 lots and discovered that 28 failed using the current AQL while 79 lots failed using the lower AQL in this final rule. (Ref. 15) To maintain the original 0.0297 (28/942) lot failure rate, the 53 lots with the highest defect rate would have to be held back by the affected manufacturers (.056) 1 .

Therefore, FDA anticipates that under the lower AQL in the final rule, approximately 6,900 lots will be held back by manufactures. In order to meet the expected demand in 10 years, FDA expects that 9,000 lots will be held back. FDA believes that glove lots that fail to meet the lower AQL in this final rule for medical quality standards will most likely be sold as nonmedical gloves. FDA believes that, although manufacturers and distributors may experience some loss of revenue from this shift (because of the price premium commanded by medical gloves), the loss will be inconsequential.

FDA does not envision increased inspection costs due to the final rule. The rate of sampled glove lots is not expected to differ and FDA resources are not expected to increase over the evaluation period.

In sum, FDA estimates that the final rule will have an average annualized cost of about $6.6 million using either a 3-percent or 7-percent annual discount rate. Table 2 of this document presents the costs for each year of the evaluation period.

The final rule will result in public health gains by reducing the frequency of blood-borne pathogen transmissions due to defects in the barrier protection provided by medical gloves. Based on an implied societal willingness to pay (WTP), FDA expects that an annualized monetary benefit of $14.8 million (using a 3-percent discount rate) or $15.1 million (using a 7-percent discount rate) will be realized due to fewer pathogen transmissions and unnecessary blood screens. Fewer glove defects will reduce the cost and anxiety associated with unnecessary blood screens (i.e., those that would yield negative results for health care personnel). Benefits have been analyzed and discounted using the methodology suggested by OMB's Circular A-4 (September 2003).

As noted in the previous paragraphs, FDA has determined that approximately 940 million defective gloves are marketed each year in the United States, or 2.4 percent of all medical gloves. In the absence of this rule, FDA expects that the number of defective medical gloves marketed in the United States would increase to 1.21 billion per year within 10 years. The final rule will substantially reduce this figure.

WEAC's analysis of 98,067 medical gloves from 942 sampled lots collected in 2000 and 2001 resulted in approximately 3-percent lot failures with an AQL of 4.0 (28 lots would fail). This lot failure rate was associated with 2,356 defective gloves, or 2.4 percent of the total number of sampled gloves. (Ref. 16). Under the lower AQL of 2.5 in the rule, the WEAC analysis concluded that 51 additional lots would fail (a total of 79 failed lots), increasing the lot failure rate from 2.91 percent to 8.39 percent.

As previously mentioned, FDA provides a Level 3 detention status in its guidance, “Surveillance and Detentions Without Physical Examination of Surgeon's and or Patient Examination Gloves.” Manufacturers on Level 3 detention are not allowed to import medical gloves because they have repeatedly failed analysis. To avoid the denial of entry, manufacturers may be expected to hold a sufficient number of defective lots from shipment in order to maintain the same target lot failure rate (approximately 3 percent) with a new AQL. If so, removing the 53 most defective lots in the testing sample would result in 26 lot failures from 880 total lots, thereby maintaining the original 2.92 percent lot failure rate. This scenario leaves 85,172 total gloves in the sample, of which 1,512 were defective, resulting in a glove defect rate of 1.78 percent. The final rule, therefore, could reduce the proportion of marketed defective medical gloves from 2.4 percent of all marketed gloves to 1.78 percent of all marketed gloves.

The implications of this expected reduction in defective gloves are significant. The current AQL is associated with 940 million glove defects during the present year (based on 2004) and within 10 years would result in 1.21 billion marketed defective medical gloves. When the lower AQL is in place, the current number of defective gloves will approximate 700 million and within 10 years will result in 900 million defective marketed gloves. The number of defective gloves, therefore, should be reduced by more than 25 percent due to the new AQL.

FDA has estimated that there are potentially 4.8 annual transmissions of blood-borne pathogens associated with medical glove defects (section III.C of this document). These transmissions include 2.4 cases of HIV and 2.4 cases of chronic HBV. Because there are currently no documented cases of cutaneous transmission of HCV that would be affected by improving glove quality levels, this analysis does not consider potential HCV transmission.

a. Reductions in HIV transmission . While the direct relationship between defective medical gloves and the transmission of HIV is unknown, FDA believes it is reasonable to apply the proportional reduction in the number of defective gloves due to the final rule (about 25 percent) to the annual transmission rate of the HIV pathogen to health care personnel. In the absence of this rule, the current expectation of 2.4 annual cases of HIV transmission to health care personnel would likely increase to 3.1 annual cases within 10 years due to the expected growth of employment in the health services industry. However, with the new AQL in place, FDA forecasts the expected annual transmission of HIV to health care personnel to equal 1.8 cases in current conditions and 2.3 cases by the 10th evaluation year (based on the expected proportionate decrease in marketed defective gloves). Over the entire 10-year evaluation period, these assumptions suggest that the rule should prevent approximately seven cases of HIV transmission to health care personnel.

b. Reductions in HBV transmissions . Hepatitis B transmissions to health care personnel are more common than cutaneous HIV transmissions. However, little specific data are available to identify affected patient populations and routes of transmission. FDA has estimated that as many as 2.4 cutaneous transmissions of chronic HBV may be due to defective medical gloves each year. In the absence of this rule, this number would be expected to increase to 3.1 annual transmissions within 10 years, based on the expected employment growth in the health services industry.

Implementation of the final rule should decrease these transmissions by about 25 percent. FDA expects 1.8 HBV transmissions under current conditions, a reduction of 0.6 transmissions from baseline conditions. By the 10th evaluation year, FDA expects that there will be 2.3 chronic HBV transmissions with the lower AQL, or a total of 0.8 fewer cases. Overall, about 7 transmissions of chronic HBV will be avoided due to the final rule over a 10 year evaluation period.

As the number of defective gloves marketed in the United States decreases due to this rule, corresponding reductions would be expected in the number of unnecessary blood screens. FDA contacted several research hospitals to ascertain how frequently health care personnel identify glove failure as a reason for initiating blood screens. Respondents stated that about 5-percent of all glove failures are noticed by the user and about 1 percent of these identified failures are reported to the facility for additional screening (Ref. 17). Respondents noted that the glove failure could occur prior to patient contact. Therefore, the additional screening may apply to the affected health care personnel or the patient. The great majority of these screens result in negative findings.

As shown in the previous paragraphs, when the final rule is in effect, FDA expects the number of defective gloves marketed to decrease from 940 million to 700 million, a reduction of 240 million defective gloves. By the 10th year, the number of defective gloves is expected to decrease from 1.21 billion to 900 million, a reduction of 310 million defective gloves. At the rates of potential identification (5 percent) and reports of contact with pathogens (1 percent) obtained from the research hospital sector, the final rule should result in 120,000 fewer unnecessary blood screens under current conditions (240 million fewer defects x 0.05 x 0.01). By the 10th year, 155,000 fewer annual blood screens are expected. Over the entire evaluation period, the rule could result in over 1.4 million fewer unnecessary blood screens.

We analyzed the cost-effectiveness of the final rule using both the cost per transmission of blood-borne pathogen avoided and the cost per unnecessary blood screen avoided. The annual numbers of future avoided transmissions and tests were compared to the present values of the costs for the evaluation period and shown in table 3. Table 3 of this document shows the expected annual reductions in blood-borne pathogens and unnecessary blood screens due to the final rule.

Although these reductions should continue beyond the evaluation period, we have analyzed only through the 10th year. Each year's expected number of reduced blood-borne pathogen transmissions and unnecessary blood screens are discounted (using both a 3-percent annual discount rate and a 7-percent annual discount rate) to arrive at an equivalent number of reductions if valued during the first evaluation year. The present values of the regulatory costs (shown in table 4 of this document) are divided by the present values of the expected reductions to arrive at the cost per avoided event. This is shown in table 4 of this document.

The Department is publishing this rule as an interim final rule in order to meet statutorily required effective dates. The Department is not exercising any discretion in implementing these provisions. In accordance with Section 715(b), the effective date for Section 715 is October 7, 2001 and shall apply with respect to deaths occurring on or after that date. The Department has no discretion concerning the benefits available to surviving dependents, the effective date, nor the time periods benefits are available to surviving spouses and children respectively. The effective date for Section 592 is January 6, 2006. Prior to the NDAAFY06, a child placed in the home by a placement agency recognized by the Secretary of Defense in anticipation of the legal adoption of the person was eligible for TRICARE. Section 592 of the NDAA FY06 expands those intermediaries who perform adoption placement to include placement by any source authorized by State or local law to provide adoption placement. The Department is not exercising any discretion in defining who are intermediaries who can perform adoption placement. In accordance with Public Law 103-160, section 702(b), the effective date for placement by a court is July 1, 1994. In accordance with Public Law 103-337, section 701, the effective date for placement by a recognized adoption agency October 5, 1994. These last two changes are administrative corrections only. Public comments are invited and will be considered for possible revisions to the final rule.

The effective date for Section 715 is October 7, 2001 and shall apply with respect to deaths occurring on or after that date. The effective date for Section 592 is January 6, 2006. In accordance with Public Law 103-160, section 702(b), the effective date for placement by a court is July 1, 1994. In accordance with Public Law 103-337, section 701, the effective date for placement by a recognized adoption agency October 5, 1994.

Dependents of active-duty members who died while on active duty have been always eligible for TRICARE; however, their payment rates/cost-sharing provisions have changed over time. Initially, their cost-sharing provisions were at the retiree payment rate for all care received. This was amended by Section 707(c) of the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, which provided for two changes. First, effective October 1, 1993, care was to be cost-shared at the active duty dependent payment rate for a one-year period. Second, for dependents of active duty members who died while on active duty between January 1, 1993, and October 1, 1993, only care for pre-existing conditions was cost-shared at the active duty dependent payment rate.

An additional amendment to the time period for the payment rate for dependents of deceased active duty members was found in Section 704 of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001. Section 704 added a two-year extension of the active-duty dependent cost-sharing provision which allowed survivors of deceased active duty members to remain eligible for TRICARE at the active duty dependent payment rate for a total of three years from the date of death. After three years, survivors remained eligible for TRICARE at the retiree payment rate.

Section 715 of the NDAA FY06 further modified the cost-sharing provision for certain dependents of deceased active duty members by adding the following subparagraph 1079(g)(2) to title 10, United States Code:

Section 715 of the NDAA FY06 changed the time frame that certain dependents shall continue to retain eligibility to enroll in TRICARE Prime at the active duty dependent payment rate and receive the same health benefits that would apply to them if the member were still living and serving on active duty. Section 715 applies to those dependents defined in 10 U.S.C. Chapter 55, subparagraph (D) or (I) of section 1072(2). In the supplementary section of this Interim Final Rule, those dependents in subparagraphs (D) and (I) are referred to as “certain dependents” and the specific legislative language for these two subparagraphs is outlined below.

Subparagraph (D) of 1072(2) addresses a child who—

(i) has not attained the age of 21;

(ii) has not attained the age of 23, is enrolled in a full-time course of study at an institution of higher learning approved by the administering Secretary and is, or was at the time of the member's or former member's death, in fact dependent on the member or former member for over one-half of the child's support; or

(iii) is incapable of self-support because of a mental or physical incapacity that occurs while a dependent of a member or former member under clause (i) or (ii) and is, or was at the time of the member's or former member's death, in fact dependent on the member or former member for over one-half of the child's support.

Subparagraph (I) addresses an unmarried person who—

(i) is placed in the legal custody of the member or former member as a result of an order of a court of competent jurisdiction in the United States (or possession of the United States) for a period of at least 12 consecutive months;

(ii) either—

(I) has not attained the age of 21;

(II) has not attained the age of 23 and is enrolled in a full time course of study at an institution of higher learning approved by the administering Secretary; or

(III) is incapable of self support because of a mental or physical incapacity that occurred while the person was considered a dependent of the member or former member under this subparagraph pursuant to subclause (I) or (II);

(iii) is dependent on the member or former member for over one-half of the person's support;

(iv) resides with the member or former member unless separated by the necessity of military service or to receive institutional care as a result of disability or incapacitation or under such other circumstances as the administering Secretary may by regulation prescribe; and

(v) is not a dependent of a member or a former member under any other subparagraph.

These certain dependents may avail themselves of the active duty dependent payment rates available under TRICARE Standard, Extra, or Prime and enjoy medical benefits at the active duty dependent payment rate in accordance with the time frames listed in Section 715. Of significance is the cost saving opportunity Section 715 presents for those certain dependents that choose to enroll in TRICARE Prime. Currently, there is no TRICARE Prime enrollment fee and no TRICARE Prime copayment for an active duty dependent Prime enrollee so those certain dependents who are enrolled in Prime also would have no Prime enrollment fee and no Prime copayment.

Those certain dependents that choose TRICARE Standard or Extra would be responsible for the active duty payment rate (cost-share) applicable under those two programs. The active duty dependent payment rates for TRICARE Standard and Extra vary by type of service (inpatient, outpatient, etc.) and can be found in 32 CFR 199.4(f).

Because Section 715 references TRICARE Prime, the Department is interpreting this section to also include the TRICARE “Prime-like” benefit known as TRICARE Prime Remote (TPR). As a result, TPR will be available to surviving spouses and certain dependents whose sponsor died while on active duty for a period of more than 30 days. Surviving spouses will be eligible to enroll in TPR for a three-year period. Certain dependents will be eligible to enroll in TPR as long as they meet the criteria for being a dependent as described in 10 U.S.C. Chapter 55, subparagraph (D) or (I) of section 1072(2).

For additional information on the TPR program, the reader should refer to the interim final rules that were published in the Federal Register on February 6, 2002, (67 FR 5477) and July 31, 2003 (68 FR 44883).

Based on the Department's interpretation of Section 715 of the NDAA FY06, the ECHO is also available to surviving spouses and certain dependents of deceased active duty members because these surviving spouses and certain dependents are treated as if the sponsoring member were still living and serving on active duty.

For additional information on the ECHO program, the reader should refer to the final rules that were published in the Federal Register on July 28, 2004, (69 FR 44942) and August 20, 2004, (69 FR 51559).

We note that Section 715 of the NDAA FY 06 provision makes no change to the time frame that the surviving spouse shall receive care at the active duty dependent payment rate. Surviving spouses retain the three year period of TRICARE Prime, TPR, TRICARE Extra or TRICARE Standard at the active duty dependent payment rate. At the end of the three year period, surviving spouses continue eligibility for TRICARE benefits at the retiree payment rate.

The provisions found in Section 715 are effective with respect to deaths occurring on or after October 7, 2001.

Section 715 of the NDAA FY06 authorizes the time frame that certain dependents shall retain active duty dependent payment rates for medical benefits available under TRICARE. The provision has no impact on eligibility rules. Consequently, this provision does not preclude loss of eligibility as a result of any condition which routinely results in loss of TRICARE eligibility such as reaching age limits, marriage, remarriage, etc.

Although the TRICARE Management Activity is tasked with publishing legislatively mandated eligibility changes to Title 10 U.S.C., determination of dependent eligibility is the primary responsibility of the Uniformed Services. TRICARE relies primarily on the Defense Enrollment Eligibility Reporting System (DEERS) for eligibility verification. However, a determination by the Uniformed Services that a person is eligible does not automatically entitle such a person to TRICARE payments. Before any TRICARE benefits may be extended, additional requirements of 32 CFR Part 199 must be met. In accordance with 10 U.S.C. 1084, as implemented by § 199.3(h), disputes regarding eligibility as a dependent or dates of beginning eligibility for benefits under TRICARE can only be resolved by the appropriate Uniformed Service Secretary.

Section 592 of the NDAA FY06 states that:

Prior to the NDAA FY06, a child placed in the home by a placement agency recognized by the Secretary of Defense in anticipation of the legal adoption of the person was eligible for TRICARE. Section 592 of the NDAA FY06 expands those intermediaries who perform adoption placement to include placement by any source authorized by State or local law to provide adoption placement. This expanded language mirrors the language found in Title 10, Subpart A, Part II, Chapter 53, Section 1052, reimbursement for adoption expenses, and provides consistency between personnel benefit policies in chapter 53 of Title 10, United States Code, and eligibility for TRICARE under chapter 55 of Title 10, United States Code. Effective date of the NDAA FY06 (and this provision) is January 6, 2006.

During the course of amending the regulation to incorporate the NDAA FY06 provisions, we identified the need for an administrative clarification to 32 CFR Part 199 Section 3. This interim final rule clarifies the eligibility provisions for an unmarried person who is placed in the legal custody of the member or former member as a result of an order of a court of competent jurisdiction in the United States (or possession of the United States) by stating that the court order must be for a period of at least 12 consecutive months. We currently address a child who is placed in legal custody of a member or former member, but the language unintentionally omitted the 12 consecutive month period required by 10 U.S.C. 1072(I)(i).

Additionally, this rule clarifies that an unmarried person placed in legal custody of a member or former member is a category that is separate and distinct from those placed for adoption. We accomplish this by providing separate regulatory paragraphs for each group.

For further information on these two groups, we refer the reader to the final rule that established these groups, 64 FR 46133, August 24, 1999.

We have examined the impact of the interim rule under Executive Order (EO) 13132 and it does not have policies that have federalism implications that would 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, therefore, consultation with State and local officials is not required.

Section 801 of title 5, United States Code, and Executive Order 12866 requires certain regulatory assessments and procedures for any major rule or significant regulatory action, defined as one that would result in an annual effect of $100 million or more on the national economy or which would have other substantial impacts.

The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities.

This is not a major rule under 5 U.S.C. 801. It is a significant regulatory action but not economically significant, and has been reviewed by the Office of Management and Budget as required under the provisions of E. O. 12866. In addition, we certify that this proposed rule will not significantly affect a substantial number of small entities.

This final rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 55).

On January 23, 2006, we published a notice of proposed rulemaking (NPRM) entitled “Regulated Navigation Area: Savannah River, Savannah, GA” (71 FR 3442). To ensure the safe transfer of liquefied Natural Gas in the port of Savannah, we are publishing this interim rule that will become effective February 20, 2007. However, we still encourage you to participate in this rulemaking by submitting comments and related material to the docket. We will accept comments for 60 days after which we intend to consider received comments and publish a final rule. If you submit comments, please include your name and address, identify the docket number for this rulemaking [CGD07-05-138], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this interim rule in view of them.

We do not plan to hold a public meeting on the interim rule. But you may submit a request for a meeting by writing to MSU Savannah (see ADDRESSES above) explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at the time and place announced by a later notice in the Federal Register . We did not receive a request for a public meeting in response to the notice of proposed rulemaking and we did not hold a public meeting.

In May of 2002, Southern LNG Inc. submitted a letter of intent to expand the LNG facility on Elba Island that would nearly double LNG storage capacity and substantially increase the number of LNG tankship arrivals. The Coast Guard's positive endorsement was contingent upon the relocation of the primary LNG mooring facility in order to reduce the risk of allision and subsequent breaching of an LNG tankship's cargo tank(s). To meet this Coast Guard requirement, Southern LNG Inc. initiated a project to create a protected docking slip designed to allow simultaneous LNG transfers from vessels. This expansion, completed early in 2006, significantly reduced the level of risk associated with LNG tankship operations and vessels passing by the LNG facility. This interim rule addresses the three possible tankship mooring configurations now available to LNG tankships. The three possible tankship mooring configurations available to LNG tankships are LNG vessels moored inside the slip, outside the slip, and a combination of inside and outside the slip.

A single commentor submitted several comments to the Coast Guard during the NPRM comment period (71 FR 3442). Several comments stated that the requirement for standby tugs should be eliminated as unnecessarily duplicative of the new slip and the infrastructure and procedures already in place to prevent an LNG spill. The Coast Guard does not believe the use of standby tugs is duplicative. The use of standby tugs to attend moored LNG vessels is a common practice in the LNG industry with the tugs having the general duties of providing a ready means of assistance to maintain a safe area around the LNG vessel, provide emergency firefighting assistance, and aid the LNG vessel in the event of an emergency departure. For example, Coast Guard Sector Baltimore requires one tractor tug to be on scene and two tractor tugs to be on a 10-minute standby. Also, the vessel operators and/or LNG facility in the ports of Lake Charles and Ponce, Louisiana, require standby tugs although there is no Coast Guard requirement.

Due to the Southern LNG facility's location on the Savannah River, approximately 8 nautical miles from the busiest area of the port, it is unlikely that tug assistance could arrive in a reasonable amount of time or guarantee that they would be available at all in the event of an emergency if tugs are not dedicated to standby duties in the immediate vicinity of the moored LNG tankship. Therefore, the requirement for two standby towing vessels to take appropriate actions in an emergency remains. Additionally, the definition of standby was slightly modified to mean readily available at the facility and equipped to provide a ready means of assistance to maintain a safe zone around LNG tankships, provide emergency firefighting assistance, and aid the LNG tankship in the event of an emergency departure. This change makes it clear that the standby towing vessels should remain at the facility unless they are assisting a passing vessel in distress.

A requirement for at least one LNG escort towing vessel and at least one standby towing vessel to be FiFi Class 1 equipped was added to ensure adequate fire fighting capabilities. In the case where one LNG tankship is moored at the facility and another LNG tankship is inbound to the facility, one FiFi Class 1 equipped towing vessel shall remain at the facility along with another standby towing vessel not so equipped while another FiFi Class 1 equipped towing vessel shall escort the inbound LNG tankship to the facility along with another escort towing vessel not so equipped. The Coast Guard believes this requirement produces the least risk to the port and takes into account the limited local availability of FiFi Class 1 equipped towing vessels. The requirement for a third towing vessel is eliminated when vessels are moored within the LNG facility slip.

Three comments from the commentor stated that the Southern LNG facility is a receiving terminal only and that the “marine-side” services, such as docking, line handling, search and rescue, and towing are specifically not provided under the LNG facility tariff on file with the Federal Energy Regulatory Commission (FERC). Therefore, the LNG facility should not be held responsible for providing the towing vessels required by this regulation. The Coast Guard has changed the rule to specify that an LNG tankship must have towing vessels on-scene when moored at an LNG facility. The provisions in section 165.756(d) are no longer directed at LNG facility operators. These changes provide greater consistency with other provisions in Part 165.

Three comments from the commentor noted that the duties of the standby towing vessels outlined in paragraph (d)(3) of 33 CFR 165.756 are vague. The Coast Guard agrees with this assertion and has added the following language to the definition for stand-by , “means readily available at the facility and equipped to provide a ready means of assistance to maintain a safe zone around the moored LNG tankship, to provide emergency firefighting assistance, to aid the LNG tankship in the event of an emergency departure, or to take other appropriate actions in an emergency as necessary.” To clearly outline the type of towing vessels that are required for the standby duties described in this regulation, additional language was also added to outline the minimum firefighting capabilities of at least one of the standby towing vessels.

Two comments from the commentor stated that moving the LNG vessels from the river pier to the protected LNG facility slip has made the standby towing vessels unnecessary because the new mooring configuration has eliminated the potential for a passing vessel to allide with a moored LNG tankship causing an LNG spill. The Coast Guard carefully considered this assessment and disagrees. Although the risk has been reduced, there is still a risk of allision while LNG tankships are moored within the LNG facility slip. If a passing vessel loses power and/or steering, it is possible for it to enter the slip and allide with the moored LNG tankship. The existence of the two standby towing vessels allows the passing vessel in distress to request immediate assistance that may prevent an allision and possible LNG spill. Additionally, the standby towing vessels provide a ready means of assistance to maintain a safe area around the LNG vessel, provide emergency firefighting assistance, and aid the LNG vessel in the event of an emergency departure. Therefore, the requirement for two standby towing vessels remains.

One comment from the commentor stated the standby towing vessels are not needed to prevent ranging of the LNG tankship at its mooring due to the surge caused by a passing vessel. This assertion was recently proven false when the surge created by a large vessel passing the LNG facility slip at excessive speed caused a moored LNG tankship to range and resulted in the emergency shutdown of the LNG transfer and caused several of the LNG tankship's mooring lines to break. Automatic emergency shutoffs prevented the release of LNG and the standby tugs immediately assisted the LNG tankship back to its original position where it was secured with additional mooring lines. While this occurrence may be unusual, it illustrates that standby towing vessels are valuable assets in the event of an emergency. This occurrence adds support to our decision to keep the requirement for two standby towing vessels.

One comment from the commentor stated that the Coast Guard should monitor the speed of passing vessels through a remote monitoring system such as the Automated Information System (AIS). At this time, the local Coast Guard shore units cannot access the AIS information and do not have sufficient personnel resources to monitor such a system on a 24 hour basis. However, the incident described in the above paragraph highlights the risk posed by vessels passing the LNG facility slip at excessive speed. Therefore the “minimum safe speed” language in paragraph (d)(5)(ii) of the proposed rule has been replaced with “bare steerage way” in paragraph (d)(6)(iv) of the interim rule to eliminate any confusion that passing vessels must make every effort to minimize their surge as they pass the LNG facility slip were an LNG tankship is moored.

One comment stated that the requirement for emergency towing wires, also known as fire wires, apply only to LNG tankships moored at the river dock. The Coast Guard disagrees with this comment and the requirement for emergency towing wires remains in all mooring configurations unless the LNG tankship is equipped with waterline bollards. Language was added that exempts LNG tankships equipped with waterline bollards from this requirement. The Coast Guard believes that waterline bollards provide an equivalent level of safety and allow for standby towing vessels to quickly “make-up” to an LNG tankship in the event of an emergency.

One comment from the commentor stated that the standby towing vessels are not necessary to assist in the emergency departure of a moored LNG tankship from the slip because the LNG tankship will likely be safest at its mooring even in the event of an emergency within the facility. The Coast Guard disagrees with this assertion. Industry publications state that in the case of an internal emergency within the terminal, it is often good practice to remove ships from the berths in order to avoid their possible involvement in the situation. Such emergencies may include a fire on the facility or an imminent terrorist threat to the facility that may prompt the Captain of the Port or the master of an LNG tankship to order departure of the vessel from the LNG facility slip or pier immediately. Therefore, the requirement for two standby towing vessels remains.

One additional comment from the commentor requested relief from the towing vessel escort requirements for an outbound vessel in a “heel” condition. The Coast Guard carefully considered this request and believes that LNG vessels carrying only “heel” pose a minimal risk of an LNG spill. Therefore, we included language in the interim rule that removes the requirement to escort LNG vessels in heel when transiting within the Regulated Navigation Area. The definition of heel “is the minimum quantity of liquefied natural gas (LNG) retained in an LNG tankship after unloading at the LNG facility to maintain temperature, pressure, and/or prudent operations. [A] quantity of LNG less than five percent (5%) of the LNG tankship's carrying capacity shall be presumed to be heel.” This same reasoning led us to remove the restrictions on other vessels while the LNG tankship is outbound in a heel condition. Vessels over 200 gross tons will have a pilot aboard who will know that the outbound LNG tankship is in a heel condition. All other vessels will follow the navigation rules and treat the outbound LNG vessel just as any other deep-draft vessel transiting the Savannah River.

Finally, several comments by the commentor also included support for the provisions in the proposed rule. One comment supported keeping unnecessary vessels out of the LNG facility slip. This provision remains in the interim rule. One comment supported limiting passing vessels to minimum safe speed. This provision remains in the interim rule, but the language was changed to “bare steerage way” to eliminate any confusion over a definition of “minimum safe speed.” One comment supported eliminating broadcast notices of LNG transits. This provision remains in the interim rule. One comment supported allowing oral waivers. This provision also remains in the interim rule.

The interim rule accounts for all three potential mooring arrangements within the LNG facility slip. All of these requirements are needed to reduce the risk associated with marine LNG transfer operations. On-scene standby towing vessels will allow for immediate action in an emergency involving an LNG tankship, the LNG facility, or a vessel passing a moored LNG tankship conducting transfer operations. They will also be available to provide a ready means of assistance to maintain a safe zone around a moored carrier and to provide emergency firefighting support in the event of a fire.

When an LNG tankship is moored outside of the slip, the towing vessel requirement of 3 towing vessels as outlined in the Notice of Proposed Rulemaking published in January 2006 remains unchanged. Additionally, the LNG tankship will be required to provide at least one standby towing vessel with a minimum of 90,000 pounds of bollard pull to take appropriate actions in an emergency as directed by the LNG vessel bridge watch. However, one of the two escort towing vessels shall be FiFi Class 1 equipped, and the escort towing vessels shall have a minimum capacity of 100,000 pounds of bollard pull, 4,000 horsepower and capable of safely operating in the indirect mode in order to escort transiting vessels 1,600 gross tons or greater past the moored LNG tankship.

When an LNG tankship is moored inside the new slip, the requirement for tethered escorts is removed. However, an LNG tankship will still be required to have two standby towing vessels with a minimum capacity of 100,000 pounds of bollard pull, 4,000 horsepower, and the ability to operate safely in the indirect mode in order to take appropriate actions in an emergency. At least one of these standby towing vessels shall be FiFi Class 1 equipped. These on scene towing vessels shall respond to any emergency situation for the LNG tankship moored within the slip occurring at the facility or caused by vessels transiting the Savannah River past the LNG facility. When two LNG tankships are moored inside the slip each vessel shall provide a standby towing vessel that is FiFi class 1 equipped with a minimum capacity of 100,000 pounds of bollard pull and 4,000 horsepower.

When an LNG tankship is moored inside the new slip and another LNG tankship is moored outside of the slip, a minimum of three towing vessels are required. The LNG tankship moored outside the slip shall provide two escort towing vessels each with a minimum of 100,000 pounds of bollard pull, 4,000 horsepower and capable of safely operating in the indirect mode in order to escort transiting vessels 1,600 gross tons or greater past the moored LNG tankship. The LNG tankship moored inside the slip shall have at least one standby towing vessel with a minimum of 100,000 pounds of bollard pull, 4,000 horsepower and FiFi Class 1 equipped to take appropriate actions in an emergency as directed by the LNG vessel bridge watch.

When one LNG tankship is moored outside and two LNG tankships are moored inside the LNG facility slip, the LNG tankship moored outside of the LNG facility slip shall have on-scene a minimum of two escort towing vessels each with a minimum of 100,000 pounds of bollard pull, 4,000 horsepower and capable of safely operating in the indirect mode in order to escort transiting vessels 1,600 gross tons or greater past the moored LNG tankship. At least one of these towing vessels shall be FiFi Class 1 equipped. In addition, the LNG tankships moored inside of the slip shall have at least one standby towing vessel between the two ships with a minimum of 100,000 pounds of bollard pull, 4,000 horsepower and FiFi Class 1 equipped to take appropriate actions in an emergency as directed by the LNG vessel bridge watch.

Security operations have been added to the list of operations that are exempt from the applicability of this rule. This will allow facility owned or operated security vessels and local state and local law enforcement vessels to operate freely within the RNA.

To limit delays to other vessels operating within the RNA, § 165.756(d)(1)(i) has been slightly modified to allow vessels of 1,600 gross tons or greater to pass the facility while the LNG tankships are maneuvering and mooring, as long as the LNG vessels are outside of the Savannah River shipping channel (i.e., inside of the slip) and the other ships are proceeding past the slip at bare steerage way.

In the interest of security, paragraph (d)(1)(iii)(C) was removed because it drew undue attention to LNG tankships transiting the area without increasing navigational safety. However, new language has been added for vessels 1,600 gross tons or greater while in the RNA to make a broadcast on channel 13 at the following points on the Savannah River: (a) Buoy “33” in the vicinity of Fields Cut for inbound vessels and (b) Buoy “53” in the vicinity of Fort Jackson for outbound vessels. This language was added to improve communications in the interest of safety and to reduce the risk of damage to moored LNG vessels or the facility due to surge or casualty of passing vessels. The subsequent paragraphs have been appropriately redesignated.

A requirement for emergency towing wires (fire wires) was added in paragraph (d)(5)(ii) to follow standard industry practice and ensure the vessels are immediately available for emergency towing. LNG vessels equipped with waterline bollards are exempt from this requirement.

Due to anticipated and observed hydrodynamic effects on the water within the LNG slip, vessel operating restrictions were added in paragraph (d)(6)(iv) to ensure safe LNG transfer operations.

In the interest of safety and security, paragraph (d)(6)(vii) was added to prevent unnecessary vessels from entering the LNG slip.

In the interest of port security, this interim rule also eliminates the Captain of the Port requirement to issue a Broadcast Notice to Mariners on scheduled LNG tankship activities during which the restrictions imposed by this section are in effect. The level of safety introduced by broadcasting LNG tankship schedules to the general public via marine radio does not outweigh the potential security impacts. River pilots who operate all vessels over 200 gross tons on the Savannah River are well aware of the LNG tankship transit times. While transiting within the RNA, the LNG tankships carrying LNG in excess of heel will be escorted by towing vessels and security vessels that can effect notice of this rule to any vessels not requiring a river pilot.

To further define when the RNA is in effect the following was added to paragraph (a) of the proposed rule, “when a LNG tankship in excess of heel is transiting the area or moored at the LNG facility.”

To ensure the timeliness of response operations and maximize safety and security, the waiver authority in this rule has been modified to allow verbal or written waivers by the Captain of the Port to the requirements of this rule.

We are making this interim rule effective 30 days after publication in the Federal Register . Delaying implementation of this rule any longer to await public notice and comment would be contrary to the public interest because of the adverse effect on the safety of navigation in the Savannah River, vessel congestion, and the safety and security of LNG transfer operations in the port.

However, we want to receive comments on the changes from the proposed rule before issuing a final rule. Please submit your comment on this interim rule on or before March 20, 2007. We may revise the rule based on your comments.

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

Delays for inbound and outbound traffic due to LNG transits will be reduced through this interim rule and through pre-transit conferences between the pilots and the Coast Guard Captain of the Port. Additional financial benefits of this rule are that LNG tankships transiting in heel will not be required to have two escort towing vessels and LNG tankships moored only inside the LNG facility slip will only be required to provide 2 standby towing vessels vice the current requirement of 3 towing vessels.

The requirement of having one of the escort towing vessels be FiFi Class 1 equipped does not impose an additional financial burden due to a FiFi Class 1 escort towing vessel is currently being utilized for this purpose.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The LNG facility does not qualify as a small entity. Towing vessels may qualify as small entities; however the economic impact incurred will be borne by the LNG tankships.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Delays for inbound and outbound traffic due to LNG transits will be minimized through this change and through pre-transit conferences between the pilots and the Coast Guard Captain of the Port. The RNA requirements are less burdensome for smaller vessels, which are more likely to be small entities; however, there would not be a significant economic impact.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pubic Law 104-121), we want to assist small entities in understanding this proposal so that they could better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT . Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Division 5100.0, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

EPA Region V is publishing this direct final notice of deletion of the Avenue E Groundwater Contamination Superfund Site from the NPL. The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in section 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective March 20, 2007 unless EPA receives adverse comments by February 20, 2007 on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Avenue E Groundwater Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) responses under CERCLA have been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c), requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of this Site:

(1) The EPA consulted with the State of Michigan on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) Michigan concurred with deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion a notice of intent to delete is published today in the “Proposed Rules” section of the Federal Register , is being published in a major local newspaper of general circulation at or near the Site, and is being distributed to appropriate federal, state, and local government officials and other interested parties. The newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with a decision on the deletion based on the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions should future conditions warrant such actions.

The remedy at the Avenue E Site was found to be protective of human health and the environment. This determination was documented in the five year review conducted in 2005. All groundwater contaminants associated with the Coast Guard facility have reached the clean up standards specified in the 1987 agreement between the Coast Guard and the State of Michigan. All active remediation has been completed and no further actions are required for this Site. The following sections outline additional information reviewed as part of an NPL deletion determination.

The Avenue E Groundwater Contamination Superfund Site was a groundwater contamination plume located in East Bay Township in Traverse County, Traverse City, Michigan. The source of the contamination was located on the U.S. Coast Guard (USCG) Air Station. The plume was located west of the intersection of Parsons Road and Aero Park Drive. It was traced to the northwest corner of an industrial park back lot located southwest of Nish-Nah-Bee Industries. The plume eventually extended to the East Arm of the Grand Traverse Bay.

In 1980, residents of Avenue E in East Bay Township complained of odors and foaming in their well water. Subsequent investigation by the Michigan Department of Public Health (MDPH) and the Michigan Department of Natural Resources (MDNR) revealed the existence of a plume of contamination in the underlying aquifer. The plume consisted primarily of hydrocarbons found in petroleum distillates, including benzene and toluene, and some solvents.

On June 10, 1982, members of the USCG District 9 air station met with Region V removal staff to discuss the possibilities and procedures for receiving CERCLA funds to pay for the connection of the homes within the Avenue E area of concern to the existing public water supply system while the USCG conducted a hydrogeologic investigation to further determine the source of contamination identified by MDNR and MDPH. According to the On Scene Coordinator's (OSC) report, the USCG could not pay for such connections without knowing their extent of responsibility. The Coast Guard agreed to enter into a Memorandum of Understanding (MOU) with USEPA assuring to reimburse the Agency for all costs incurred for the connections should the USCG be found to be the responsible party. USEPA then proceeded with the removal action and all home connections to the existing public water supply were completed on December 12, 1982. A total of 59 homes received city water with nine home owners declining to receive full hookups. A total of 67 homes received some level of service from this action. The total cost reimbursed by the USCG to USEPA was $137,540. Although not all residents received full hookups to the public water supply system, the plume associated with the Coast Guard property no longer exists and therefore would indicate that no risk currently exists to those not fully connected to the public water supply from the contamination associated with the Coast Guard property.

The first investigation of the site was conducted by the MDNR in 1982. The State Agency's study objectives were to locate and delineate the contaminant plume, identify and determine the distribution of its component parts and locate the probable source area of the plume. The MDNR drilled 24 wells and two auger holes along Parsons Road and around the lots of Jacklyn Steel and Nish-Nah-Bee Industries.

As a result of this investigation, the MDNR determined that the USCG Air Station property was part of the suspected source area. The USCG contracted with the United States Geological Service (USGS) in July 1982 to undertake a study of the area's hydrogeologic conditions. Objectives of this study were:

(1) To determine the rate and direction of groundwater flow;

(2) locate the source or sources of contaminants;

(3) determine the extent and distribution of contaminants;

(4) evaluate hydrologically suitable locations for installing purge wells should that be necessary.

The USCG installed a total of 138 wells on the Coast Guard property, up and down gradient of the base in and around the industrial areas and residential area. Five wells were installed to conduct a pump test for determining aquifer characteristics.

At the request of the USCG, a team from the University of Michigan conducted a study of the site from February through August 1984. Building on the data and results given in the USCG report, the study was to be complementary to the USCG effort. By providing data and analysis on the time variation of contaminants, the effect of soil adsorptive characteristics on contaminant distribution and movement, and the potential risk posed by the contamination to public health, probable contaminant sources could be determined and remedial action alternatives developed.

A total of 24 wells including 15 existing and nine new wells were selected for analysis based on previous information. These wells were sampled six times at 21-day intervals. Statistical analysis was performed on the data and various data plots were generated. This information was used to provide supporting information for developing response alternatives. A preliminary risk assessment was made for the various chemical components found in the plume. A contaminant transport computer model was used to help determine the possible origin of the plume and the effectiveness of various purge well combinations. Finally, several cleanup alternatives were identified and discussed.

Following the 1982 removal action, the Coast Guard also contracted and supervised additional groundwater investigations complementing those conducted earlier by the MDNR to aid in the planning of a long term response. Results of these investigations concluded the following:

• A plume of contamination was found stretching from near the Hanger/Administration (HA) building on the Coast Guard Property to East Bay. It was approximately 4300 feet long and from 180 to 400 feet wide. Hydrocarbon spectra of the contamination were consistent with that of 115/145 aviation gasoline. Major components were benzene, toluene and xylene with a maximum concentration of 3640 μg/l, 553000 μg/l and 5410 μg/l, respectively.

• An additional contaminant plume was discovered on the Coast Guard property with parent origin near the Coast Guard's fueling station. Around the fueling station several inches of pure JP-4 jet fuel product were found floating on the water table.

• A third contaminant plume was found along the Coast Guard's south fence line up-gradient from the fuel farm area. Possible origins include a 1979 Republic Airlines jet fuel spill and various underground storage tanks in the area that had since been removed.

• The contaminants were located in a sandy aquifer of high permeability. Groundwater flow is to the northeast with a velocity of approximately five feet per day.

• A probable source of the original plume was a fuel spill in 1969 at the Coast Guard base in which about 2500 gallons of aviation gasoline leaked into the ground at a fuel station located under the northwest corner of the new HA building. The second plume may have originated from leaking JP4 fuel tanks at the current fuel station.

To mitigate adverse effects discovered during the investigation, interim responses were implemented. In addition to providing city water connections to affected residents in the Avenue E area, the USCG also installed and operated interdiction and purge systems with treatment capability to prevent additional offsite contaminant migration and removed and/or repaired tanks at the Coast Guard fueling station. In addition to the investigation of groundwater, the USGS and the University of Michigan (UM) reported numerous measurements of organics in the soils at the Coast Guard Air Station. The UM study found maximum concentrations of 25.4 μg/g benzene, 27.6 μg/g toluene, and 229 μg/g xylene. Analyses were made for seven other hydrocarbons with negative results. Soil borings indicate that much of the organic material was adsorbed on the soil in a 6” to 12” thick layer in the capillary zone immediately above the water table. The UM suggested that this zone was slowly leaking organic contaminants into the groundwater over time and was serving as a source for the plume.

There was no Record of Decision (ROD) for this site. In 1987, an agreement between the State of Michigan and the USCG was negotiated. USCG agreed to pay the cost of implementing the cleanup of contamination emanating from the USCG air station. All clean up activities associated with the Ave E site were conducted as part of this Settlement agreement.

The municipal water supply system serving the East Bay township residences and business currently meets federal and state drinking water standards and is safe for human consumption. The source of the township's municipal water system is groundwater wells located in East Bay Township and monitored every three years. The wells used to supply water to East Bay Township are quite a distance up-gradient of the Coast Guard Facility, and the monitoring frequency for these wells is adequate.

Currently, soil vapor intrusion is not considered a possible problem at the Site. Down gradient monitoring wells placed along Avenue E in the residential area where the plume was traced, have found no detectable levels of contaminants of concern associated with the USCG plume.

In 1987, an agreement between the State of Michigan and the USCG was negotiated. USCG agreed to pay the cost of implementing the cleanup of contamination emanating from the site. The cleanup involved extraction and treatment of contaminated groundwater. Some of the other remedial actions included enhanced biodegradation using hydrogen peroxide and nitrates to reduce plume contaminates. The USCG also implemented groundwater sparging with vapor extraction, venting with vapor extraction, soil venting, natural attenuation and surfactant injection and extraction. All of these additional remedial measures helped to reduce the contaminant source in the soil and speed treatment of the groundwater through the pump and treatment system. The contaminated groundwater was treated by activated carbon prior to discharge to the Traverse City Sewer system. By 1996, the contaminant levels rarely exceeded the cleanup criteria stipulated in the 1987 settlement agreement. In 1999, the wells remained clean.

A Preliminary Closeout Report (PCOR) was completed by U.S. EPA in September 2000. The purpose of the PCOR was to document that all construction activity had been completed at the Site.

There were no provisions for institutional controls in any of the agreements associated with the clean up and monitoring of this site as the groundwater was to be remediated to unrestricted use.

The cleanup standards in the 1987 Settlement Agreement were designed to meet the contaminant levels for benzene, tetrachloroethylene and trichloroethylene as required by the State of Michigan (MDNR), based on acceptable standards in place at the time the Settlement Agreement was issued. This was an agreement between the MDNR and USCG. If these standards were not met, then additional measures would be taken. This Site is being deleted because the remedial response met all cleanup standards outlined in the 1987 Settlement Agreement.

USCG has completed monitoring groundwater at the site in accordance with the Settlement Agreement between the State of Michigan and the USCG filed on June 1, 1987. Per the Settlement Agreement with the State of Michigan, the USCG operated two interdiction fields (pump and treatment systems). There was one at the North of the base and one at the South of the base. They consisted of wells IN2, IN3, IN4, IN5, and IN6 in the North field (avgas plume) and PP5, PP7, and PP8 in the South Field (JP-4 field). Each interdiction point had point of compliance wells along the USCG property boundary. The North field point of compliance wells were M56, M1, M4, M3, and M55. The South field point of compliance wells were M22, M61, M62, and M64. There were a number of other wells installed over the course of the project for various reasons. In 2000, with consent of MDEQ, the USCG removed wells PP5, PP6, PP7 and PP8. In 2001, with the consent of MDEQ, wells IN2, IN3, IN4, IN5 and IN6 were removed along with the associated piping, manifolds, carbon treatment units, and discharge lines for both the North and South interdiction fields. The remaining monitoring wells will be removed after the 10 year post closure period. The post closure period started in October 2005.

EPA conducted a five-year review of the Site in 2005. In the review, EPA concluded that all remedial actions are complete and monitoring indicates that all clean up goals have been reached in connection with the 1987 Settlement Agreement. Therefore, no future five-year review, are required for this Site.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion of this Site from the NPL are available to the public in the information repositories, and in http://www.regulations.gov.

The EPA, with concurrence of the State of Michigan, determined that all appropriate responses under CERCLA have been completed, and that no further response actions under CERCLA are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective March 20, 2007 unless EPA receives adverse comments by February 20, 2007. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. EPA will prepare a response to comments and, as appropriate, continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Summer flounder is currently under a rebuilding plan. NMFS published a final rule containing the 2007 summer flounder TAL on December 14, 2006 (71 FR 75134). The 12.983-million-lb (5,889-mt) TAL contained within that rule became effective on January 1, 2007. The TAL implemented by that rule was a 45-percent decrease from the TAL specified for 2006.

The 12.983-million-lb (5,889-mt) TAL was developed utilizing the best available scientific information. The regulations at 50 CFR 648.100 require that NMFS implement measures (e.g., a TAL) necessary to ensure, with at least a 50-percent probability, that F max (i.e., level of fishing that produces maximum yield per recruit) will not be exceeded. The 12.983-million-lb (5,889-mt) TAL has greater than a 99-percent probability of not exceeding F max , the level at which overfishing is considered to be occurring. It also has an associated F level that will provide stock rebuilding within the 10-year statutory period under section 304 of the Magnuson-Stevens Act prior to its December 2006 reauthorization. The F level calculated to rebuild the stock within the 10-year period is F rebuild =0.15; the 12.983-million-lb (5,889-mt) TAL has a 75-percent probability of achieving this F rebuild .

Since the publication of the 2007 summer flounder TAL in the Federal Register , the Reauthorized Magnuson-Stevens Act was signed into law on January 12, 2007. Contained within the Reauthorized Magnuson-Stevens Act is a specific provision under section 120(a) that provides the Secretary the authority to extend the rebuilding time frame ending date for summer flounder to no later than January 1, 2013, provided that several specific conditions are met. The Secretary must determine that:

2. The biomass rebuilding target previously applicable to the summer flounder stock will be met or exceeded within the new time for rebuilding;

The Secretary has determined that these six criteria have been met and that there is a reasonable basis to extend the summer flounder rebuilding time frame to no later than January 1, 2013. A detailed discussion of the Secretarial determinations occurs later in this preamble, under Secretarial Determinations Required by Section 120(a) of the Reauthorized Magnuson-Stevens Act . Based on these determinations, the Secretary is implementing, through this emergency rule, a 17.112-million-lb (7,762-mt) TAL, based on the revised rebuilding time frame ending no later than January 1, 2013, which supersedes the previous TAL of 12.983 million lb (5,889 mt), which was based on a rebuilding period end date of January 1, 2010. The 17.112-million-lb (7,762-mt) TAL will be allocated 10.27 million lb (4,658 mt) to the commercial sector and 6.84 million lb (3,104 mt) to the recreational sector.

This emergency rule does not alter the previous amount of summer flounder set aside for research in the December 14, 2006, final rule. The research set-aside (RSA) level is not being increased by this emergency rule in order to ensure that the issuance of grants and exempted fishing permits required to conduct the research projects occurs in a timely fashion. Four research projects that would utilize the previously established summer flounder RSA of 389,490 lb (177 mt) have been conditionally approved by NMFS and are currently awaiting notice of award. If a project is not approved by the NOAA Grants Office, the research quota associated with the disapproved proposal will be restored to the summer flounder TAL through publication of a notice in the Federal Register .

Consistent with the revised quota setting procedures for the FMP at § 648.100(a)(1)(ii), summer flounder overages are determined based upon landings for the 2005 calendar year that were not accounted for in the 2006 final rule (70 FR 77060, December 29, 2005), and any 2006 fishing year overages through October 31, 2006. Table 1 summarizes for each state, based on the TAL implemented though this emergency rule, the commercial summer flounder percent share, the 2007 commercial quota (both initial and less the RSA), the quota reductions from overages as previously described, the resulting adjusted 2007 commercial quota, and the increase in quota from the December 14, 2006, final rule resulting from this emergency rule. Recreational harvest limits, based on the TAL implemented by this emergency rule, will be the subject of a separate rulemaking within the first quarter of 2007.

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

The A season allowance of the 2007 TAC of pollock in Statistical Area 610 of the GOA is 3,352 metric tons (mt) as established by the 2006 and 2007 harvest specifications for groundfish of the GOA (71 FR 10870, March 3, 2006).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2007 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,337 mt, and is setting aside the remaining 15 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 11, 2007.

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

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