The Hawaiian fruits and vegetables regulations, contained in 7 CFR 318.13 through 318.13-17 (referred to below as the regulations), govern, among other things, the interstate movement of fruits and vegetables from Hawaii. Regulation is necessary to prevent the spread of dangerous plant diseases and pests that occur in Hawaii. Some fruits and vegetables regulated under the Hawaiian fruits and vegetables regulations are allowed to move interstate if they are treated with an approved treatment for certain plant pests. Lists of approved treatments for these fruits and vegetables and requirements for conducting these treatments are contained in 7 CFR part 305.

On October 11, 2006, we published in the Federal Register (71 FR 59694-59696, Docket No. APHIS-2006-0027) a proposal  1 to amend the regulations by removing vapor heat treatment as an approved treatment for bell pepper, eggplant, Italian squash, and tomato moved interstate from Hawaii. We proposed this action because these four commodities can serve as hosts for the solanum fruit fly, which has been detected in Hawaii, and vapor heat treatment is not an approved treatment for that pest. We also proposed to provide for the use of irradiation as an approved treatment for all Capsicum spp. (peppers) and Cucurbita spp. (squash) moved interstate from Hawaii. Treatment with irradiation is approved to neutralize all fruit flies of the family Tephritidae.

We solicited comments concerning our proposal for 60 days ending December 11, 2006. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.

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

This rule is in response to a species of fruit fly that has been detected in Hawaii, the solanum fruit fly ( Bactrocera latifrons ). Bell peppers, eggplant, Italian squash, and tomatoes are the four commodities for which vapor heat treatment has been an approved treatment that are affected by the solanum fruit fly. Because limited research has been done regarding the effectiveness of vapor heat treatment at neutralizing solanum fruit fly, APHIS is removing vapor heat treatment from the list of approved treatments for bell peppers, eggplant, Italian squash, and tomatoes moved interstate from Hawaii.

While vapor heat treatment will no longer be an approved treatment, irradiation is an approved treatment for the interstate movement of bell peppers and Italian squash from Hawaii. We are amending the regulations to approve irradiation as a treatment for all species of the genus Capsicum (peppers), not just bell peppers, and all species of the genus Cucurbita (squash), not just the Italian squash. APHIS has previously determined that an irradiation dose of 150 gray is sufficient to neutralize all fruit flies that affect Capsicum spp. and Cucurbita spp. in Hawaii, including the solanum fruit fly.

Approximately $15.4 million worth of eggplant, green peppers, Italian squash, Oriental squash, and tomatoes were produced in the State of Hawaii in 2004, amounting to 52 million pounds (table 1). However, none of the eggplant, green peppers, Italian squash, or tomatoes produced in Hawaii in 2004 was moved interstate to the U.S. mainland. According to the Hawaii Department of Agriculture, none of these commodities has been moved interstate from Hawaii to the U.S. mainland within the last 2 years.

The regulations will continue to give Hawaiian entities the opportunity to move Capsicum spp. and Cucurbita spp. interstate. While vapor heat treatment will no longer be an approved treatment for bell peppers and Italian squash, irradiation will become an approved treatment for all Capsicum spp. and Cucurbita spp. Irradiation will continue to be an approved treatment for eggplant and tomatoes as well.

Accordingly, we do not expect that this rule will have a significant economic impact on a substantial number of small entities. This rule is necessary to safeguard the U.S. mainland from the introduction of solanum fruit fly ( Bactrocera latifrons ). Because in recent years eggplant, peppers, squash, and tomatoes have not been moved interstate from Hawaii, the rule is not expected to have a significant impact on small or large entities.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

SAP informed the FAA on July 12, 2006, that at least nine SAP cylinder assemblies installed in TCM 470, 520, and 550 series reciprocating engines and one installed in LE 320, 360, and 540 series reciprocating engines had separated at the cylinder head-to-barrel threaded interface because SAP omitted a heat treat process step during cylinder barrel manufacture. This omission resulted in higher stresses in the cylinder head-to-barrel threaded interface, leading to fatigue cracking and cylinder head separation. The lowest time-in-service (TIS) for a cylinder assembly known to have separated from this defect is 202 hours TIS. SAP isolated this defect to a specific production lot of 1,354 barrel forgings used as original equipment on SAP O-360 engines and in SAP PMA cylinder assemblies as replacement parts for various TCM, LE, and AL engine models. This AD addresses the barrels used in SAP PMA cylinders installed in the engines listed below.

The unsafe condition described previously is likely to exist or develop on other TCM 470, 520, and 550; LE 320, 360, and 540; AL 540, and SAP 360 series reciprocating engines of the same type design with SAP cast cylinder assemblies that have as original equipment, or have been overhauled or repaired using SAP part numbers listed in the table above. For that reason, we are issuing this AD to prevent cylinder separation which can lead to engine failure, a possible engine compartment fire, and damage to the airplane. This AD requires removing from service installed SAP cast cylinder assemblies listed in the table above, no later than 150 hours total TIS to preclude cylinder head fatigue failure and separation at the head-to-barrel threaded interface.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2006-25948; Directorate Identifier 2006-NE-32-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

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

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES .

On August 11, 2006, the FAA published in the Federal Register a notice of proposed rulemaking to revise Class E airspace at Gillette, WY, (71 FR 46133). This action would improve the safety of Instrument Flight Rules (IFR) aircraft executing this new RNAV GPS approach procedure at Gillette-Campbell County Airport, Gillette WY. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9P dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by revising Class E airspace at Gillette, WY. Additional controlled airspace is necessary to accommodate IFR aircraft executing a new RNAV (GPS) approach procedure at Gillette-Campbell Airport, Gillette WY.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On October 20, 2006, the FAA published in the Federal Register a notice of proposed rulemaking to establish Class E airspace at Nucla, CO (71 FR 61922). This action would improve the safety of Instrument Flight Rules (IFR) aircraft executing this new RNAV GPS approach procedure at Hopkins Field, Nucla, CO. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9P dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Nucla, CO. Additional controlled airspace is necessary to accommodate IFR aircraft executing a new RNAV (GPS) approach procedure at Hopkins Field, Nucla, CO.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

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

Part 4 of the Commission's regulations governs the operations and activities of CPOs and CTAs. 1 In particular, Regulation 4.41 pertains to advertising by CPOs, CTAs, and the principals  2 thereof, an issue first addressed by the Commission over 25 years ago. The Commission originally proposed that CPOs, CTAs, and their principals could not advertise their actual past performance results in a format other than that which the CPO or CTA was required to use in its Disclosure Document, 3 and that the presentation of simulated or hypothetical performance of a CPO, CTA, or the principals thereof would be prohibited. 4 In response to the comments received and its further deliberations on these proposals, the Commission adopted less restrictive advertising regulations. 5

With respect to the presentation of actual past performance, the Commission explained that it had adopted in Regulation 4.41(a) “a rule that leaves to the discretion of the [CPO, CTA, or principal] advertising performance results—whether actual, simulated or hypothetical—the format of that presentation, so long as that format is not false, misleading or deceptive.”  6 With regard to the presentation of simulated or hypothetical performance results, the Commission explained that it had adopted in Regulation 4.41(b) “a rule that allows the presentation of those results, provided that the presentation is accompanied by the statement prescribed in the rule,” whose purpose was “to alert prospective customers to the limitations inherent in simulated and hypothetical past performance results.”  7 The Commission also noted the scope of new Regulation 4.41—that it applied to both oral and written communications and regardless of whether a CPO or a CTA was exempt from registration under the Act. 8

Based upon its experience with the operation of Regulation 4.41 over the course of the past 25 years, on August 23, 2006, the Commission published for comment proposed amendments to the regulation (Proposing Release). 9 Specifically, the Commission proposed to amend Regulation 4.41: (1) To restrict the use of testimonials; (2) to clarify the required placement of the prescribed simulated or hypothetical performance disclaimer; and (3) to include within the regulation's coverage advertisement through electronic media (Proposal).

The Commission received six comment letters in response to the Proposal, as follows:  10 one from a registered futures association; one from a bar association; one from a futures industry trade association; and three from unregistered CTAs. 11 The first three commenters supported the Proposal, stating that it would further the goals of Regulation 4.41. The CTAs, however, questioned the Commission's authority to adopt and maintain Regulation 4.41 altogether.

Specifically, they objected to Regulation 4.41 on the grounds that it violates the First Amendment as applied to some CTAs. However, as the Commission explained in the Proposing Release, false, deceptive or misleading commercial speech is not protected by the First Amendment, and disclosure requirements to ensure that commercial speech is not false, deceptive or misleading are a constitutionally permissible form of regulation. 12 Thus, the Commission continues to believe that, because Regulation 4.41 applies to forms of communication used by CTAs and CPOs for marketing their services, the regulation is subject to the constitutional standards for commercial speech and it complies with those standards.

In light of the foregoing and the specific comments the Commission received on the Proposal, which are discussed more fully below, the Commission is adopting the revisions to Regulation 4.41 as proposed. In the Proposing Release, the Commission provided a detailed explanation of each revision it had proposed to make. Accordingly, the scope of this Federal Register release generally is restricted to responding to the comments received on the Proposal. The Commission invites interested persons to read the Proposing Release for a fuller discussion of the purpose of each of the amendments contained in the Proposal.

As proposed and as adopted, Regulation 4.41(a)(3) requires advertisements of the actual past performance of a CPO, CTA, or a principal thereof that refer to a testimonial to prominently disclose specified information about the testimonial— e.g. , that it may not be representative of the experience of other clients. As the Commission noted, it modeled this provision upon Rule 2210(d)(2) of the National Association of Securities Dealers, Inc. (NASD), which sets similar limits on the use of testimonials in advertisements and other marketing materials applicable to NASD members— i.e. , persons who are registered as securities broker-dealers under the Securities Exchange Act of 1934 (BDs). 13

One commenter questioned why the Commission proposed to regulate the use of testimonials along the lines of the NASD requirement for BDs, as opposed to adopting an outright prohibition against their use—as the Securities and Exchange Commission has done with respect to persons registered or required to be registered as investment advisers. 14 The same commenter asked the Commission to explain its rationale for how it approached the use of testimonials— e.g. , whether the Commission had based its approach on problems the Commission had observed or on requests for clarification from CPOs and CTAs.

The purpose of this amendment, as with all of the Amendments, is to “modernize and clarify” the Commission's regulations concerning communications with the public—which was the same purpose of the NASD in proposing its Rule 2210(d)(2). 15 While the Commission based this amendment on the observations of its staff, those observations were not of a nature so as to justify the adoption of an outright ban on testimonials at this time. In addition, the Commission notes that, as proposed and as adopted, Regulation 4.41(a)(3) applies to all CPOs and CTAs, not solely to those CPOs and CTAs subject to registration.

Regulation 4.41(b)(1) prohibits the presentation of simulated or hypothetical performance results of a CPO, CTA, or principal thereof unless that presentation is accompanied by either: (1) The statement prescribed by the regulation; or (2) a statement prescribed by a registered futures association. The National Futures Association (NFA) currently is the sole registered futures association, and it has prescribed such a statement in its Compliance Rule 2-29(c). 16 As proposed, the Commission has amended Regulation 4.41(b)(1) so as to clarify the meaning of the term “accompanied by” in the context of the statement prescribed by the regulation. 17

One of the commenters on the Proposal questioned the need for alternative statements under the regulation. In response, the Commission notes that the availability of alternative statements provides a meaningful option for compliance with the regulation. Indeed, in the more than ten years following NFA's adoption of Compliance Rule 2-29(c), 18 the Commission has not been made aware of any compliance or other issues arising from the existence of alternative cautionary statements in Regulation 4.41(b)(1). 19 Accordingly, the Commission has not adopted the recommendation of this commenter that it abandon its own prescribed statement in favor of the prescribed NFA statement.

Two commenters recommended that the Commission adopt an exception to its prescribed statement where advertisements are directed solely to persons who meet the definition of “qualified eligible person” (QEP) in Commission Regulation 4.7. 20 They claimed adoption of such an exception would be consistent with NFA Compliance Rule 2-29(c)(6). However, based upon its review of the record of the adoption of the NFA rule, the Commission has concluded that the NFA rule does not provide for any such exception.

In its Notice to Members announcing the adoption of amendments to, and a formal interpretation of, Compliance Rule 2-29(c), NFA stated:

Moreover, given the nature of simulated or hypothetical performance results, the Commission does not believe that it is appropriate to extend the approach of fewer disclosures to QEPs in this instance. Due to their financial sophistication and/or wealth, QEPs may justifiably be presumed to be better equipped to obtain information regarding industry professionals and to scrutinize the risks and rewards for particular investments. However, it is not clear that QEPs, solely by virtue of their being QEPs, are able to identify each instance in which otherwise unexplained performance results are simulated or hypothetical.

Accordingly, the Commission has not adopted the recommendation of these commenters.

Regulation 4.41(b)(2) requires that the statement prescribed by Regulation 4.41(b)(1) be “prominently disclosed” if the simulated or hypothetical performance that is presented is other than oral. In order to make clear that simulated or hypothetical performance is clearly identified as such, as proposed and as adopted, Regulation 4.41(b)(2) specifies that the prescribed disclaimer also must be “in immediate proximity to the simulated or hypothetical performance being presented.”

One commenter suggested that the proposed amendment lacked specificity as to the term “in immediate proximity.” The commenter requested that the Commission either define the term “in immediate proximity” or provide examples of how compliance with that requirement would be assessed in practice.

In determining what constitutes “in immediate proximity” for the purpose of Regulation 4.41(b), the Commission does not believe that a bright-line test is practical for all circumstances. Rather, the Commission believes that, in determining what would constitute “in immediate proximity” to the simulated or hypothetical performance being advertised, the person providing the prescribed statement should use its best judgment. If it would be clear to someone viewing the simulated or hypothetical performance results that the statement is intended to refer to those particular performance results, then the statement would be “in immediate proximity” to the performance results. 22 Thus, placing the statement on the cover page of a document would not be sufficient, because it would be on a different page from the simulated or hypothetical performance being shown. Similarly, if simulated or hypothetical performance results appear on several pages, the statement should appear on a sufficient number of pages so as to leave no doubt as to the nature of the performance results as they appear on each of those several pages.

The Regulatory Flexibility Act (RFA)  23 requires that agencies, in proposing regulations, consider the impact of those regulations on small businesses. The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its regulations on such entities in accordance with the RFA. 24

With respect to CTAs, the Commission has previously stated that it would evaluate within the context of a particular rule proposal whether all or some affected CTAs would be considered to be small entities and, if so, the economic impact on them of the proposal. 25 Moreover, the Commission stated that CPOs would be considered small entities if they are exempt from registration by virtue of Regulation 4.13(a). 26 The Commission does not believe that the Amendments will have a significant impact on affected CTAs, CPOs, and their principals. This is because the only burden that will be imposed by the Amendments will be in furtherance of the obligation to comply with the antifraud provisions of Section 4 o of the Act when presenting the past performance of CTAs, CPOs, and their principals—whether by way of actual, simulated or hypothetical performance or through the use of testimonials. Assuming arguendo , however, that compliance with Section 4 o will constitute a significant burden, the burden is neither new nor additional, because the Amendments are consistent with the Commission's longstanding interpretation of Section 4 o as applicable to all advertisements by CTAs, CPOs, and their principals, including advertisements that are viewed electronically, and with the requirement that such advertisements must not be false or misleading.

The Commission did not receive any comments relative to its analysis of the application of the RFA to the Proposal.

The Paperwork Reduction Act of 1995 (PRA)  27 imposes certain requirements on Federal agencies (including the Commission) in connection with their conducting or sponsoring any collection of information as defined by the PRA. The Amendments do not require a new collection of information on the part of any entities.

The Commission did not receive any comments relative to its analysis of the application of the PRA to the Proposal.

Section 15(a) of the Act  28 requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.

Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular regulation was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.

The Commission did not receive any comments relative to its cost-benefit analysis of the Proposal.

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 section 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 section 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, section 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); 71 FR 77404 (December 26, 2006) and 72 FR 7058 (February 14, 2007).

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. Subsequently, CBP announced on January 19, 2007 (72 FR 2435) that, after 90 days notice, the use of the ACE Truck Manifest System will be mandatory at all land border ports in the states of California, Texas and New Mexico, as well.

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 Michigan and New York 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 Michigan and New York as of May 24, 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 than 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. The remaining land border ports in the state of North Dakota and all land border ports in the state of Vermont.

2. All land border ports in the states of Idaho and Montana.

3. All land border ports in the states of Maine, New Hampshire, and Minnesota.

4. All land border ports in the state of Alaska.

On August 25, 2000, FDA published a final rule entitled, “Substances Approved for Use in the Preparation of Meat and Poultry Products,” which, in part, amended its regulations to permit an efficient joint review by both FDA and FSIS of USDA, of petitions for approval to use a food ingredient or source of radiation in or on meat or poultry products. The final rule requires applicants petitioning for approval for the use of substances in meat and poultry products to provide four copies of the petition to FDA, rather than the three copies previously specified in §§ 71.1 and 171.1. FDA will then forward a copy of the petition or relevant portions of the petition to FSIS so that both agencies can perform the necessary reviews simultaneously, thus reducing the time it takes to authorize a food additive or color additive for use in meat and poultry products. The rule does not require petitioners to submit any new information to either FDA or FSIS. This final rule resulted from a coordinated effort by the two agencies to ease the paperwork burden on regulated industries through streamlining the Government's approval process for substances used as food additives or color additives in meat and poultry products (§§ 71.1 and 171.1).

At the time of publication of the final rule, the information collection requirements contained in §§ 71.1 and 171.1 had been submitted to, but not yet approved by, OMB under the PRA (44 U.S.C. 3501-3520). Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless and until the collection displays a valid OMB control number.

FDA announced OMB approval of the information collection requirements in §§ 71.1 and 171.1, as amended by FDA's August 25, 2000, final rule, in the Federal Register of March 1, 2001. The agency is now announcing that these requirements will become effective on March 26, 2007. The information collection requirements at §§ 71.1 and 171.1 were originally assigned OMB control number 0910-0461. In December 2003, OMB control number 0910-0016 replaced OMB control number 0910-0461 as the valid control number that authorizes the information collection requirements. OMB control number 0910-0016 remains the currently approved control number for §§ 71.1 and 171.1.

The NJTRO Railroad Bridge, across Cheesequake Creek, mile 0.2, at Morgan, New Jersey, has a vertical clearance in the closed position of 3 feet at mean high water and 8 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.709(b).

The owner of the bridge, New Jersey Transit Rail Operation (NJTRO), requested a temporary deviation to facilitate scheduled bridge maintenance, electrical and structural maintenance. The bridge will not be able to open while the bridge maintenance is underway.

Under this temporary deviation the NJTRO Railroad Bridge may remain in the closed position for two 24-hour time periods between February 20, 2007 and February 24, 2007. The exact two 24-hour closure dates will be selected depending upon favorable weather necessary to perform the required repairs.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and (d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this regulation effective less than 30 days after publication in the Federal Register . While formation of ice generally occurs in the winter months, predicting when ice will begin to form, where it will be located and the thickness of the ice is difficult and depends on the weather conditions. Ice has just begun to form in the area of this safety zone. Publishing an NPRM and delaying its effective date would be contrary to public interest, since immediate action is needed to protect mariners against potential hazards associated with ice and to ensure the safety of the environment on the Upper Chesapeake Bay and its tributaries.

During a moderate or severe winter, frozen waterways present numerous hazards to vessels. Ice in a waterway may hamper a vessel's ability to maneuver, and could cause visual aids to navigation to be submerged, destroyed or moved off station. Ice abrasions and ice pressure could also compromise a vessel's watertight integrity, and non-steel hulled vessels would be exposed to a greater risk of hull breach.

When ice conditions develop to a point where vessel operations become unsafe, it becomes necessary to impose operating restrictions to ensure the safe navigation of vessels. A safety zone is a tool available to the Captain of the Port (COTP) to restrict and manage vessel movement when hazardous conditions exist. The COTP Baltimore is establishing a safety zone within all navigable waters within the COTP Baltimore zone, that will restrict access to only those vessels meeting conditions specified in broadcast notice to mariners and marine safety information bulletins.

Ice generally begins to form in the Upper Chesapeake Bay and its tributaries, including the Chesapeake and Delaware (C & D) Canal, in late December or early January. During a moderate or severe winter, ice in navigable waters can become a serious problem, requiring the use of federal, state and private ice breaking resources. The Commander, Coast Guard Sector Baltimore will use its COTP authority to promote the safe transit of vessels through ice-congested waters and the continuation of waterborne commerce throughout the winter season.

Ice fields in the Upper Chesapeake Bay and its tributaries move with prevailing winds and currents. Heavy ice buildups can occur in the C & D Canal, from Town Point Wharf to Reedy Point. Other areas that are commonly affected by high volumes of ice are, the Elk River, Susquehanna River, Patapsco River, Nanticoke River, Wicomico River, Tangier Sound, Pocomoke River and Sound, and the Potomac River. Once ice build up begins it can affect the transit of large ocean-going vessels.

Ice reports over the last several years have varied greatly on the Upper Chesapeake Bay and its tributaries. Historically, ice has been reported as NEW, FAST OR PACK ICE. The percentage of ice covering the river has been reported anywhere from 10% to 100%. The thickness has been reported anywhere from 1/2 ″ to 18″ thick.

The purpose of this regulation is to promote maritime safety, and to protect the environment and mariners transiting the area from the potential hazards due to ice conditions that become a threat to navigation. This rule establishes a safety zone encompassing all waters of the COTP Baltimore zone. The COTP will notify the maritime community, via marine broadcasts, of the location and thickness of the ice as well as the ability of vessels to transit through the safety zone. Mariners allowed to travel through the safety zone with the permission of the COTP must maintain a minimum safe speed, in accordance with the Navigation Rules as seen in 33 CFR Chapter I, Subchapters D and E.

Ice Condition One means the emergency condition in which ice has largely covered the upper Chesapeake Bay and its tributaries, and the C & D Canal. Convoys are required and restrictions to shaft horsepower and vessel transit are imposed.

Ice Condition Two means the alert condition in which at least 2 inches of ice begins to form in the Upper Chesapeake Bay and its tributaries, and the C & D Canal. The COTP Baltimore may impose restrictions, including but not limited to, shaft horsepower and hull type restrictions.

Ice Condition Three means the readiness condition in which weather conditions are favorable for the formation of ice in the navigable waters of the Upper Chesapeake Bay and its tributaries, and the C & D Canal. Daily reports for the Coast Guard Stations and commercial vessels are monitored. (No limitations on vessel traffic, hull type or shaft horsepower).

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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 (DHS).

We expect the economic impact of this rule to be minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-743-3247).

This rule would call 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 this rule does not have implications for federalism.

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

This rule would not affect 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 12211, 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 Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule establishes a safety zone.

Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are available in the docket.

Section 1007(a)(2) of the Legal Services Corporation Act (“Act”), 42 U.S.C. 2996f(a)(2), requires the Corporation to establish maximum income levels for individuals eligible for legal assistance, and the Act provides that other specified factors shall be taken into account along with income.

Section 1611.3(c) of the Corporation's regulations establishes a maximum income level equivalent to one hundred and twenty-five percent (125%) of the Federal Poverty Guidelines. Since 1982, the Department of Health and Human Services has been responsible for updating and issuing the Federal Poverty Guidelines. The revised figures for 2007 set out below are equivalent to 125% of the current Federal Poverty Guidelines as published on January 24, 2007 (72 FR 3147).

In addition, LSC is publishing charts listing income levels that are 200% of the Federal Poverty Guidelines. These charts are for reference purposes only as an aid to grant recipients in assessing the financial eligibility of an applicant whose income is greater than 200% of the applicable Federal Poverty Guidelines amount, but less than 200% of the applicable Federal Poverty Guidelines amount (and who may be found to be financially eligible under duly adopted exceptions to the annual income ceiling in accordance with sections 1611.3, 1611.4 and 1611.5).

We invite public comment on our calculation of the rate increases made in this interim rule, specifically with respect to Step 3 of the methodology. All comments received will be posted, without change, to http://dms.dot.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

Submitting comments: If you submit a comment, please include your name and address, identify the docket number for this rulemaking (USCG-2006-24414), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, 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 rule in view of them.

Viewing comments and documents: To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://dms.dot.gov at any time, click on “Simple Search,” enter the last five digits of the docket number for this rulemaking, and click on “Search.” You may also visit the Docket Management Facility in room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act: Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

Public Meeting: We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The Great Lakes Pilotage Act of 1960, codified in Title 46, Chapter 93, of the United States Code (U.S.C.), requires foreign-flag vessels and U.S.-flag vessels in foreign trade to use federal Great Lakes registered pilots while transiting the St. Lawrence Seaway and the Great Lakes system. 46 U.S.C. 9302, 9308. The Coast Guard is responsible for administering this pilotage program, which includes setting rates for pilotage service.

The Coast Guard pilotage regulations require annual reviews of pilotage rates and the creation of a new rate at least once every five years, or sooner, if annual reviews show a need. 46 CFR part 404. 46 U.S.C. 9303(f) requires these reviews and, where deemed appropriate, adjustments be established by March 1 of every season.

To assist in calculating pilotage rates, the three Great Lakes pilotage associations are required to submit to the Coast Guard annual financial statements prepared by certified public accounting firms. In addition, every fifth year, in connection with the full ratemaking, the Coast Guard contracts with an independent accounting firm to conduct audits of the accounts and records of the pilotage associations and to submit financial reports relevant to the ratemaking process. In those years when a full ratemaking is conducted, the Coast Guard generates the pilotage rates using Appendix A to 46 CFR Part 404. Between the five-year full ratemaking intervals, the Coast Guard annually reviews the pilotage rates using Appendix C to 46 CFR Part 404, and adjusts rates as appropriate.

The last full ratemaking was published in the Federal Register on April 3, 2006 (71 FR 16501). On July 13, 2006, we published a Notice of Proposed Rulemaking (NPRM; 71 FR 39629), thus beginning the first annual review and adjustment following that full ratemaking. By law, this review must be completed by March 1, 2007.

The Coast Guard received four comments in response to the July 2006 NPRM. One comment was received from the American Maritime Officers' (AMO) union, two comments were received from the Lakes Pilots' Association (LPA), and one comment was received from the legal representative of the pilots' associations. This last commenter prefaced his discussion of several issues by stating that “the pilots are willing to have the Coast Guard defer action on [these issues] to the earliest possible time at which they will not delay the issuance of the updated rate pursuant to the current NPRM proceeding.” We agree that timely completion of this annual rate update is of paramount importance.

Contract modifications. All four comments stated that AMO union contracts with one or more of the shipping companies on the Great Lakes had changed prior to the publication of the NPRM on July 13, 2006, and requested that the final rule reflect this change. After reviewing the submissions and researching the issue to confirm the accuracy of the comments, the Coast Guard has concluded that these comments are partially correct.

The AMO union contracts with six shipping companies on the Great Lakes. On August 1, 2003, the union negotiated collective bargaining agreements with these six companies establishing, among other things, wages and benefits for mariners effective until July 31, 2006. Three of those companies, based on our research, have subsequently entered into Memorandums of Understanding dated July 23, 2004, March 11, 2005, and May 1, 2005, extending the termination dates of these collective bargaining agreements to July 31, 2007, and modifying the wage and benefit portions of the underlying collective bargaining agreements. These modifications initially became effective May 1, 2005, with additional modifications becoming effective August 1, 2005. The remaining three companies have not signed Memorandums of Understanding extending and modifying the collective bargaining agreements. Accordingly, they continue to operate under the terms of the original 2003 contracts previously used by the Coast Guard to approximate first mates wages and benefits.

The Coast Guard agrees that, since these contract modifications went into effect prior to the date the NPRM was published, weight should be given to these updated contracts. However, the Coast Guard also believes that to properly approximate current first mates wages and benefits, we must also give consideration to the August 1, 2003, AMO union contracts that remain in effect with three of the six shipping companies. Accordingly, we have calculated first mates wages and benefits under both versions of the AMO union contracts and, using the deadweight tonnage (mid-summer capacity tonnage) of vessels operating under each of these contracts, apportioned target pilot compensation based on the percentage of tonnage represented by each of the contracts to arrive at a weighted average target pilot compensation. This calculation is discussed in greater detail under Step 3 of this Appendix C Ratemaking Methodology. We specifically request public comment on this calculation.

Calculation of projected bridge hours. One commenter pointed out that we rounded up the bridge hour projections shown in Step 2.B of the Appendix A calculations for the 2006 final rule and in Step 3 of the Appendix C calculations for this rulemaking's NPRM. The commenter stated, correctly, that this was a departure from our past practice, and that the resulting artificial overstatement of traffic projections lowers rates. Because we now agree with this comment, we have corrected Step 3 in our Appendix C computations, to show actual projected bridge hours rather than rounded-up projections. This affects subsequent computations made under Appendix C, and raises rates an average of 3% over what we proposed in the NPRM. We also note by this commenter's remark that the impact of our error was most notable in District One, which has suffered the cessation of fast ferry service that accounted for 1,144 projected bridge hours in the 2006 ratemaking. This interim rule removes those hours from the District One projection.

Delay and detention. One commenter alleged that our 2006 ratemaking “changes, without explanation” our “longstanding practice” of counting “delay and detention” hours in the pilots” workload, and that this rulemaking's NPRM perpetuates this alleged error.

The comment is incorrect. The Coast Guard has never considered delay, detention, or travel time to be included in the definition of bridge hours and has never knowingly included these items in its bridge hour computations. The Appendix A, Step 2.B definition of bridge hours as the “number of hours a pilot is aboard a vessel providing basic pilotage service” has never changed. We have consistently and publicly stated that this excludes detention, delay, or travel time: See, for example, 65 FR 55206 at 55208 (Sep. 13, 2000), 66 FR 36484 (Jul. 12, 2001). In 2002, we reiterated this policy at the same time as we acknowledged a possible inadvertent departure from the policy in 2001. 67 FR 47464 (Jul. 19, 2002). The policy has been expressed and followed in all our ratemaking documents since 2002.

The commenter further cited Rear Admiral J. Timothy Riker's March 4, 2003 report on Great Lakes pilotage, in which he recommended including delay and detention in calculating bridge hours. The commenter expressed concern over the “slow pace” of the Coast Guard's response to the Riker report and asked us to implement its recommendations promptly. The report can be found at http://dms.dot.gov , under Docket USCG-2002-13191 where it appears as item 85.

The Riker report presented a series of recommendations for Coast Guard consideration. We are, and have been, actively engaged in reviewing these recommendations. This will be the subject of a separate Federal Register notice.

150% factor for designated waters. One commenter alleged that we have improperly calculated target pilot compensation for pilots servicing designated waters. The Coast Guard's standard practice under Appendix A, Step 2.A(1) and (2), is to calculate this compensation by multiplying first mates wages by 150%, and then adding benefits. The commenter believes that, instead, we should multiply the total of first mates wages and benefits by 150%. The rationale for the Coast Guard's method of calculation was given in the Saint Lawrence Seaway Development Corporation's 1997 final rule (62 FR 5917, 5920; Feb. 10, 1997). Further discussion can be found in the docket for the 1997 rule; see http://www.dms.dot.gov , Docket SLSDC-1996-1781, item 22.

This issue was the subject of litigation between the Lakes Pilots Association and the Coast Guard. In an unpublished Memorandum Opinion ( Lakes Pilots' Association v. United States Coast Guard , Civil Action No. 01-1721(RBW); Apr. 4, 2003), which we have placed in the docket for this rulemaking, the U.S. District Court for the District of Columbia upheld the Coast Guard's interpretation of the applicable regulations and the method used to calculate target pilot compensation for pilots servicing designated waters. It is the Coast Guard's view that this matter has been resolved by the court's decision.

Rate adjustment with Canada. One commenter stated that U.S. pilotage rates must be identical to rates charged by the Canadian pilotage authority, in keeping with provisions of the January 18, 1977 Memorandum of Arrangements (MOA) regarding Great Lakes pilotage, which was signed by the U.S. Secretary of Transportation and the Canadian Minister of Transport, and which remains in effect. Paragraph 7 of the MOA states that “the Secretary and the Minister will arrange for the establishment of regulations imposing identical rates, charges and any other conditions or terms being annexed hereto from time to time as a Rate Supplement and to be deemed as part of this Memorandum of Arrangements” (emphasis added). The MOA is enforceable only between the two sovereign nations that are party to it. No private right of action is created by which individuals might seek to enforce the MOA for their own benefit.

This comment is beyond the scope of this rulemaking, which merely applies existing U.S. regulations. Those regulations reflect the MOA, in that they allow for rate adjustment after U.S. consultation with Canada, but they do not automatically adjust U.S. rates to reflect Canadian rates, nor do they require U.S. rates to be identical to Canadian rates. We infer that the commenter's intent is to encourage consultation between the U.S. and Canada so that rates will be made identical. Due to vast differences in the pilotage systems and ratemaking methodologies of the two nations, and to frequent economic fluctuations that affect the two nations dissimilarly, it may not be practicable, or desirable from the perspective of the U.S. pilots, to set identical rates. However, we have been discussing with the Canadian Great Lakes Pilotage Authority ways to achieve rate parity.

This interim rule adjusts the rates for Federal pilots on the Great Lakes, contained in 46 CFR 401.405, 401.407, and 401.410, in accordance with Appendix C of 46 CFR part 404. Using this methodology, the rate adjustment results in an average increase of 22.62% across all Districts over the last pilotage rate adjustment. Fourteen and seven-tenths percent (14.7%) of the increase is attributable to increases in wages and benefits contained in the most recent American Maritime Officers' union contracts that were not included in the NPRM; 5% of the increase is attributable to increased traffic projections based upon changes in traffic levels between 2005 and 2006; 3% of the increase is attributable to adjustments made in the rate computation returning projected bridge hours to unrounded values; and 0.5% of the increase is attributable to non-wage inflation.

Rates for “Cancellation, delay or interruption in rendering services (§ 401.420)” and “Basic rates and charges for carrying a U.S. pilot beyond [the] normal change point, or for boarding at other than the normal boarding point (§ 401.428)” have been increased by 22.62%. These changes are the same in every Area.

The ratemaking analyses and methodology contained in Appendix C to 46 CFR part 404 comprises eight steps. These steps are:

1. Calculating the Base Period Total Economic Cost (Cost Per Bridge Hour by Area for the Base Period);

2. Calculating the Expense Multiplier;

3. Calculating the Annual Projection of Target Pilot Compensation;

4. Increasing the Projected Pilot Compensation in Step 3 by the Expense Multiplier;

5. Adjusting the Result for Inflation or Deflation;

6. Dividing the Result in Step 5 by Projected Bridge Hours to Determine Total Unit Costs (Adjusted Cost per Bridge Hour by Area);

7. Dividing Prospective Unit Costs (Total Unit Cost) in Step 6 by the Base Period Unit Costs in Step 1; and

8. Adjusting the Base Period rates by the Percentage Changes in Unit Cost in Step 7.

The base data used to calculate each of the eight steps comes from the last full ratemaking, as indicated in the April 3, 2006 final rule. Target pilot compensation is calculated based upon the most recent contracts between the American Maritime Officers'(AMO) union and vessel owners and operators on the Great Lakes. Bridge hour projections for the 2007 season are based on historical data and data provided by the St. Lawrence Seaway Development Corporation. Bridge hours are the number of hours a pilot is aboard a vessel providing pilotage service and do not include delay, detention, or travel time. All documents and records used in this rate calculation mentioned in this preamble as being available in the docket have been placed in the public docket for this rulemaking and are available for review at the addresses listed under ADDRESSES .

Some values may not total exactly due to format rounding for presentation in charts and explanations in this section. The rounding does not affect the integrity or truncate the real value of all calculations in the ratemaking methodology described below.

The base period numbers used in all calculations are those that were set by the last full ratemaking in 2006. The data used for this first step is obtained from the 2006 final rule's tables containing the base operating expense, base target pilot compensation, and base return element computations. This first step requires that we calculate the total economic cost for the base period by taking from these tables, and adding together, the recognized expenses, the total cost of target pilot compensation, and the return element in each Area. We then take this sum and divide it by the total bridge hours used in each Area in setting the base period rates. This calculation gives us the cost of providing pilotage service per bridge hour by Area for the base period.

The following tables summarize the Step 1 computations:

The expense multiplier is the ratio of both the base operating expenses and the base return element to the base target pilot compensation by Area. This step requires that we add together the base operating expense and the base return element. Then we divide the sum by the base target pilot compensation to get the expense multiplier for each Area. The following tables show the calculations:

Step 2 of Appendix A requires the Director of Great Lakes Pilotage to:

1. Determine the new target rate of compensation;

2. Determine the new number of pilots needed in each pilotage Area; and

3. Multiply new target compensation by the new number of pilots needed to project total new target pilot compensation needed in each Area.

Each step is detailed as follows:

Target pilot compensation for pilots providing services in undesignated waters approximates the average annual compensation for first mates on U.S. Great Lakes vessels. Target pilot compensation for pilots providing services in designated waters approximates the average annual compensation for masters on U.S. Great Lakes vessels. The Office of Great Lakes Pilotage has consistently calculated compensation for masters on the Great Lakes by first multiplying first mates' salaries by 150% and then adding benefits, since this is the best approximation of the average annual compensation for masters.

For this interim rule, the average annual compensation for first mates has been partially revised, based on comments to the docket, and confirming research performed by the Coast Guard, to reflect changes in the AMO union contracts on the Great Lakes. The AMO union contracts with six shipping companies on the Great Lakes. On August 1, 2003, the union negotiated collective bargaining agreements with these six companies establishing, among other things, wages and benefits for mariners effective until July 31, 2006. Three of those companies, based on our research, have subsequently entered into Memorandums of Understanding dated July 23, 2004, March 11, 2005 and May 1, 2005, extending the termination dates of these collective bargaining agreements to July 31, 2007, and modifying the wage and benefit portions of the underlying collective bargaining agreements. These modifications initially became effective May 1, 2005, with additional modifications becoming effective August 1, 2005. The remaining three companies have not signed Memorandums of Understanding extending and modifying the collective bargaining agreements and they, accordingly, continue to operate under the terms of the original 2003 contracts the Coast Guard previously used to approximate first mates' wages and benefits.

In light of the foregoing and to effectuate these changes, the Coast Guard has calculated target pilot compensation under both versions of the AMO union contracts and, using the deadweight tonnages (mid-summer capacity) of vessels operating under each of these contracts, apportioned target pilot compensation based on the percentage of tonnage represented by each of the contracts, to arrive at a weighted average target pilot compensation accurately approximating compensation of first mates on the Great Lakes. We specifically request public comment on this calculation.

The following tables (1, 2, and 3) summarize how target pilot compensation is determined for undesignated and designated waters based on the AMO union contracts in effect on August 1, 2003. Data from these AMO union contracts were used in the NPRM published on July 13, 2006.

Under the AMO union contracts in effect on August 1, 2003, the monthly component for wages is derived by multiplying the daily rate of pay by 54 days, instead of 30 days, based upon the following formulation provided by the AMO union:

a. Average Working Days per month—30.5.

b. Vacation Days per month—15.0.

c. Weekend Days per month—4.0.

d. Holidays per month—1.5.

e. Bonus per month—3.0.

Monthly Multiplier—54.0.

Additionally, we use a nine-month multiplier in computing annual wages and benefits because the season is nine months in duration, not 12 months.

Effective August 1, 2002, the matching benefit increased to 50% for each participating 401(k) employee up to a maximum of 5% of a participating employee's compensation. For purposes of this benefit, the AMO union contracts interpret “employee compensation” to mean base wages. District Two has a pension plan, while District Three has a 401(k) plan. District One does not provide either a 401(k) or pension plan for its members. Therefore, to conform to the 401(k) matching benefit provision under the AMO union contracts, pilot compensation for Districts Two and Three is increased. The increase in undesignated waters is $5,515.20 and for designated waters is $8,272.80 per pilot. These increases are 5% of compensation, respectively.

District One does not administer any form of 401(k) or retirement plan. At the recommendation of the independent accountant, the Coast Guard has determined that the District One pilots should receive the same employer matching benefits as Districts Two and Three.

Accordingly, the compensation base of District One is adjusted to include an amount equivalent to an employer's contribution under the AMO 401(k) matching plan, which increases pilot compensation in undesignated waters by $5,515.20 and for designated waters by $8,272.80 per pilot.

The following tables (4, 5, and 6) summarize how target pilot compensation is determined for undesignated and designated waters under the modified AMO union contracts effective August 1, 2005:

On April 5, 2006, the Office of Management and Budget (OMB) approved the information collection requirements contained in Section 15.525 (a) and (e), pursuant to OMB Control No. 3060-1015. Accordingly, the information collection requirements contained in these rules became effective on April 5, 2006.

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

NMFS closed the directed fishery for pollock in Statistical Area 630 of the GOA under § 679.20(d)(1)(iii) on January 22, 2007 (72 FR 2793, January 23, 2007). The fishery was subsequently reopened on February 6, 2007 and closed on February 8, 2007 (72 FR 5346, February 6, 2007), and reopened on February 12, 2007 and closed on February 14, 2007 (72 FR 7353, February 15, 2007).

NMFS has determined that approximately 2,864 mt of pollock remain in the directed fishing allowance in Statistical Area 630 of the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C) and (a)(2)(iii)(D), and to fully utilize the A season allowance of the 2007 TAC of pollock in Statistical Area 630, NMFS is terminating the previous closure and is reopening directed fishing for pollock in Statistical Area 630 of the GOA. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached after 48 hours. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA for 48 hours, effective 1200 hrs, A.l.t., February 22, 2007.

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) and 50 CFR 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of pollock in Statistical Area 630 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 February 16, 2007.

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

Without this inseason adjustment, NMFS could not allow the fishery for pollock in Statistical Area 630 of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until March 7, 2007.

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

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (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 Pacific cod TAC allocated to catcher processor vessels using pot gear in the BSAI is 1,331 metric tons (mt) as established by the 2006 and 2007 final harvest specifications for groundfish in the BSAI (71 FR 10894, March 3, 2006) and subsequent adjustment (71 FR 13777, March 17, 2006). See § 679.20(c)(3)(iii) and (c)(5), and (a)(7)(i)(C).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that the A season allowance of the 2007 Pacific cod TAC allocated to catcher processor vessels using pot gear in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher processor vessels using pot gear in the BSAI.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher processor vessels using pot gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 16, 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.