On March 22, 2007, we published in the Federal Register (72 FR 13423-13428; Docket No. APHIS-2007-0032) an interim rule  1 that amended the citrus canker quarantine regulations to explicitly prohibit, with certain limited exceptions, the interstate movement of regulated nursery stock from a quarantined area. The interim rule was effective on March 16, 2007. We took that action because the interstate movement of regulated nursery stock from an area quarantined for citrus canker poses a high risk of spreading citrus canker outside the quarantined area. The interim rule included two exceptions to the prohibition. We continued to allow the interstate movement of regulated nursery stock for immediate export, under certain conditions. We also allowed calamondin and kumquat plants, two types of citrus plants that were considered to have a high degree of biological resistance to citrus canker, to be moved interstate from a quarantined area under a protocol designed to ensure that they are free of citrus canker prior to movement.

In July 2007, officials from our Center for Plant Health Science and Technology (CPHST) confirmed that samples obtained from 15 calamondin plants growing in an area quarantined for citrus canker were infected with the disease. Based on those findings, we now consider it probable that the interstate movement of calamondin plants from a quarantined area, even under the conditions of the protocol, presents a disease risk pathway for the spread of citrus canker. Therefore, we consider it prudent to amend the regulations to remove calamondin plants from the protocol.

We would make that amendment in an upcoming rule that will finalize our March 2007 interim rule. Accordingly, we are reopening the comment period for the interim rule for an additional 30 days. This action will allow interested persons an opportunity to prepare and submit comments regarding calamondin plants and the interstate movement protocol.

Background

The Mexican fruit fly ( Anastrepha ludens ) is a destructive pest of citrus and many other types of fruit. The short life cycle of the Mexican fruit fly allows rapid development of serious outbreaks that can cause severe economic losses in commercial citrus-producing areas.

The Mexican fruit fly regulations, contained in 7 CFR 301.64 through 301.64-10 (referred to below as the regulations), were established to prevent the spread of the Mexican fruit fly to noninfested areas of the United States. The regulations impose restrictions on the interstate movement of regulated articles from quarantined areas. Willacy County, TX, has been listed as a quarantined area since the Mexican fruit fly regulations were established.

Based on trapping surveys conducted by inspectors of the Texas Department of Agriculture and by inspectors of the Animal and Plant Health Inspection Service, we have determined that the Mexican fruit fly has been eradicated from Willacy County. The last finding of Mexican fruit fly in this quarantined area was May 6, 2005.

Since then, no evidence of Mexican fruit fly infestation has been found in this area. Based on our experience, we have determined that sufficient time has passed without finding additional flies or other evidence of infestation to conclude that the Mexican fruit fly no longer exists in Willacy County, TX. Therefore, we are amending the regulations in § 301.64-3(c) by removing the entry for this county from the list of quarantined areas.

Immediate action is warranted to relieve restrictions that are no longer necessary. Willacy County, TX, was quarantined due to the possibility that the Mexican fruit fly could spread from this area to noninfested areas of the United States. Since we have concluded that the Mexican fruit fly no longer exists in Willacy County, immediate action is warranted to remove the quarantine and to relieve the restrictions on the interstate movement of regulated articles from this area. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

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

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This action amends the Mexican fruit fly regulations by removing Willacy County, TX, from the list of quarantined areas.

The Regulatory Flexibility Act requires that agencies consider the economic impact of their rules on small entities. We expect that any small entities located within the regulated area that sell regulated articles do so primarily for local intrastate, not interstate, movement, so the effect, if any, of this rule on these entities appears likely to be minimal. The effect on any small entities that may move regulated articles interstate has been minimized during the quarantine period by the availability of various treatments that allow these small entities, in most cases, to move regulated articles interstate with very little additional cost. Thus, the lifting of the quarantine is expected to have little effect.

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

As discussed below, this change in the schedule of fees will reflect the proposed passport book surcharge increase, as well as a reduction in the execution fee for the passport book.

Due to increased security concerns following the events of September 11th, the Department of State has focused upon improved security, particularly in relation to our nation's borders. In 2004, Congress authorized the Secretary of State to collect a surcharge related to consular services in support of enhanced border security. (Pub. L. 108-447, Div. B, Title IV, 118 Stat. 2896 (2004), 8 U.S.C. 1714). The law set the initial border security surcharge at $12.00 because that was the estimated cost of providing consular services in support of enhanced border security at that time.

In 2007, Congress provided the Secretary of State with the authority to administratively amend the border security surcharge. Department of State Authorities Act of 2006, Public Law 109-472, section 6, 120 Stat. 3554 (2007) (codified at 8 U.S.C. 1714 note). Congress included four requirements for such amendments:

The $8.00 increase is reasonably related to the costs of providing consular services in support of enhanced border security because it represents the cost of providing passport books with upgraded security features resulting from the State Department's enhanced border security programs implemented since 2005. New passport book security measures, including the introduction of an electronic passport and the use of traceable priority mail delivery to applicants to prevent passport loss or theft, have increased the security-related passport costs and $12.00 is no longer sufficient to cover such costs.

First, due to these new security measures, the passport book and mailing now costs the Department $19.40. Each passport book costs $14.80, nearly triple the previous cost, and priority mail costs $4.60 as opposed to the original 60-cent standard first-class mail rate, for a total cost of $19.40. In order to avoid a loss, the Department is rounding up the security surcharge to $20. Thus, the Department is raising the security surcharge by a total of $8.00 at the present time.

Even taking this rounding into account, the total amount of the surcharge collected will not exceed the aggregate amount obligated and expended for costs related to consular services in support of enhanced border security incurred in connection with passport services, nor will it exceed the total amount obligated and expended for passport books and mailing. When the Department initially began collecting the security surcharge in March 2005, the amounts collected were more than sufficient to fund costs. Nevertheless, each fiscal year, the Department expended the majority of its passport book security surcharge collections, leaving only a minimal amount to carry over into the new fiscal year for operating expenses on October 1. 1 Because of the substantial increase in costs caused by the introduction of the electronic passport book and the use of priority mailing, these costs now significantly exceed the amounts collected through the security surcharge. Thus, the amounts now collected through the security surcharge do not fully cover the costs for passport books and secure mail and other consular fees are used to fund the full cost of the passport book and priority mailing. This demonstrates the necessity of raising the passport book security surcharge at this time.

Third, the surcharge is only collected to the extent that it is obligated and expended to pay the costs associated with enhanced border security. These funds are maintained in a separate account—“Passport Security Surcharge”—and are used only for consular functions supporting enhanced border security.

Fourth, all of the surcharge funds are obligated and expended only to pay costs related to consular services in support of enhanced border security. As stated above, the Department has established a separate account for monies collected through the border security surcharge and ensures, and will continue to ensure, that such monies are expended only to pay the related border security enhancement costs. The financial plan for the Border Security Program exclusively uses the revenue received through the passport book security surcharge to pay for the production and mailing costs of the new electronic passport books. The passport book security surcharge is not used to support any other activities.

It is important that the Department of State increase the security surcharge by $8.00 to $20.00. The Department of State considers the enactment of this rule a matter of the utmost importance to ensure the availability of funds necessary to support consular services related to enhanced border security throughout our nation.

The Department is also reducing the execution fee for the passport book from $30.00 to $25.00, as proposed in its Notice of Proposed Rulemaking (NPRM) published on October 17, 2006 at 71 FR 60928. As the Department explained in the NPRM, the $25.00 execution fee for passport applications is based on an internal review of the Department's cost of service, along with information from the United States Postal Service. The $25.00 execution fee has already been implemented for the passport card through the Passport Card Rule published on December 31, 2007. This rule completes the transition to the $25.00 execution fee for passport card and passport book applications by applying the lower fee for the passport book.

The passport book security surcharge and reduction of the execution fee will take effect at the same time the new passport card fees become effective so that the Department can administratively implement all passport fee changes at the same time.

The new fees for the passport book are as follows:

The Department is publishing this rule as an interim final rule, with a 60-day provision for post-promulgation comments and with an effective date less than 30 days from the date of publication, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Delaying implementation of this rule would be contrary to the public interest because the rule is necessary in order to continue to fund consular services in support of enhanced border security. This rule constitutes an integral component of several changes to the Department's regulations taking place between January 1 and February 1, 2008 as part of the Department's plans to increase border security in several key areas. Failure to increase the border security surcharge on February 1 would jeopardize the Department's ability to fund consular services in support of enhanced border security, and would undermine the integrated implementation of other security-related initiatives designed to go into effect during the same time period. Moreover, delaying implementation of the $25.00 execution fee for the passport book until after February 1 would create a disparity between the fee charged for the same service for the passport book and the passport card.

The Department of State, in accordance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) and Executive Order 13272, section 3(b), has evaluated the effects of this proposed action on small entities. The Department has determined and hereby certifies that this rule would not have a significant impact on a substantial number of small entities.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not result in any expenditure by State, local or tribal governments, nor will it significantly or uniquely affect small governments. The effects on the private sector are discussed below in connection with the economic analysis required under Executive Order 12866.

This rule is a major rule as defined by 5 U.S.C. 804 for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. A copy of the rule, along with a concise general statement relating to the rule and its effective date, are being provided to each House of Congress and the Comptroller General as required by 5 U.S.C. 801. Pursuant to 5 U.S.C. 808, this interim final rule will take effect on February 1, 2008.

This rule is considered by the Department of State to be an economically significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review. The surcharge increase is based on the Department's costs and projected volumes that were available at the time this rule was drafted, and the rule has been reviewed by the Office of Management and Budget.

The implementation of this rule will result in a net increase of $3.00 per application in the cost of a passport book when execution of the passport book application is required. For those renewal applications that do not require execution it will result in an $8 increase. Although the economic impact of the rule on any given individual will be relatively minor, it will provide the Department with an additional $232 million in FY 2008 in annual fee revenue, based on a projected annual volume of 29 million applications for passport books, over the fee revenue that would be collected through the current security surcharge. This increase in revenue will be used to fund consular services in support of enhanced border security, as required by 8 U.S.C. 1714 note. The increased revenue will be used for the purchase of blank passport books and priority mailing for completed passport books. If the Department does not adjust the security surcharge to recover the cost of the books and priority mailing, its ability to fund these and other consular services in support of enhanced border security will be compromised, and the Department will be forced to continue to divert funds from other consular fees in order to meet the shortfall. This diversion, in turn, will undermine the Department's ability to deliver the high-quality consular services the public has come to rely on from it.

The Department is concerned with the impact on individual applicants of any rise in the overall cost of the passport book, and carefully analyzed whether it would be possible to keep the security surcharge below the Department's actual cost for passport book purchasing and mailing. It determined, however, that a fee amount that did not meet these costs was not possible given the amount of funding required for the Department's consular services in support of enhanced border security. Although this rule will cause a modest increase in the total cost of a passport book for the individual applicant, the increased cost of the passport book over its 10-year lifetime will be minimal. An increase of $3.00 or, for renewals, $8.00, in the cost of a passport book with a validity period of 10 years corresponds to an increased cost of either thirty cents or eighty cents per year for the life of the passport book. The Department does not anticipate that this de minimis increase in the lifetime cost of a passport book will impose an undue burden on individual passport book applicants, or that it will have an impact on application volumes or any other public behavior. Public demand for the passport book has been rising over the past several years and is expected to continue to rise as individuals increasingly come to regard the passport book as a valuable identity document.

This rule will also provide distinct benefits that cannot be quantified monetarily. As OMB Circular A-4 states, “It will not always be possible to express in monetary units all of the important benefits and costs” of a rule. A vital, non-quantifiable benefit of this interim final rule is that it will enable the Department to advance its goal of enhancing border security while simultaneously investing in infrastructure and other developments needed to meet projected levels of passport book demand in FY 2008 and beyond. By supplying the funds to purchase passport books and priority mailing, the security surcharge will significantly enhance the nation's border security.

The passport book costs three times the previous passport book for a reason. It is one the world's most secure travel documents. It contains an embedded chip with coding that will prevent digital data from being altered or removed, as well as a unique ID number for the chip. In addition, the electronic passport book uses a form of Public Key Infrastructure (PKI) that will permit digital signatures, thus protecting the data from tampering. These features make it much more difficult for individuals to engage in the fraudulent use of an electronic passport book. Likewise, the use of priority mail makes it possible for both the Department and the legitimate recipient to track the electronic passport book through the mailing process, making it easier to prevent and detect any loss or theft of the book.

At the same time, because it will fully fund the cost of blank passport books and priority mailing, the increased surcharge will permit the Department to maximize the efficiency of its operations. As OMB Circular A-4 explains, “[a] regulation may be appropriate when you have a clearly identified measure that can make government operate more efficiently.” By ensuring that the base cost of each passport book and priority mailing is funded through the surcharge, the rule allows the Department to more effectively plan for what is projected to be a record level of passport book demand, and to determine in advance how to best allocate the Department's other available resources so as to provide efficient and high-quality consular services to the American public. Specifically, the rule will permit the Department to use other funds to provide the infrastructure and staffing needed to meet the projected demand for passport books over the next fiscal year and beyond. This will enable both the Department and the public to avoid the inefficient use of resources that arises when infrastructure and staffing are insufficient to meet demand. This, along with enhanced border security through the use of the passport book and priority mailing, is a tangible and noticeable benefit. Thus, the benefits of this rule exceed its costs.

This regulation would 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, and Executive Order No. 13132 is therefore not applicable.

The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and to reduce burden.

The Department has analyzed this regulation for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that it would not have any effect on the quality of the environment.

This proposed rule would not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

The Coast Guard published in the Federal Register of December 12, 2007, a document which changed the operation of the State Route 23 vertical lift bridge across the Gulf Intracoastal Waterway (Algiers Alternate Route), mile 3.8, at Belle Chasse, Louisiana. The document outlined that the portion of the existing regulation allowing the bridge to remain closed to navigation on the last weekend in October was no longer necessary and was being removed from the operating schedule. This document shared a docket number with a separate document that had been published previously. This correction establishes a new docket number for the document published on December 12, 2007.

In rule FR Doc. CGD08-07-042 published on December 12, 2007, (72 FR 298) make the following correction. On page 70515, in the first column, in the heading section replace the docket number CGD08-07-042 with USCG-2007-0176.

On May 8, 2007, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Sunset Beach, NC” in the Federal Register (72 FR 26038). We received 10 comments on the proposed rule. No public meeting was requested, and none was held.

The S.R. 1172 Bridge at Sunset Beach has zero vertical clearance to vessels when in the closed position at mean high water.

The North Carolina Department of Transportation (NCDOT) owns and operates this single-lane, floating steel-barge, swing-span referred to as a pontoon drawbridge. Current regulations set out at 33 CFR 117.821(a)(5) require the bridge to open on signal for commercial vessels at all times; and on the hour on signal for pleasure vessels between 7 a.m. and 7 p.m., April 1 to November 30, except that on Saturdays, Sundays, and Federal holidays, from June 1 through September 30, the bridge shall open on signal on the hour between 7 a.m. and 9 p.m.

NCDOT and the residents of the Town of Sunset Beach requested a change to the operating regulations for the S.R. 1172 Bridge in an effort to improve the schedule for both roadway and waterway users. The S.R. 1172 Bridge provides the only route on and off Sunset Beach Island. This rule will not change the requirement for the bridge to open on signal at any time for commercial vessels.

The Coast Guard reviewed the bridge logs for 2005 and 2006 provided by NCDOT which illustrate a small decrease in the numbers of vessels passing through the bridge during the spring, summer, and fall over the past year. Most vessels transiting the area in the spring and fall are operated by owners commonly referred to as “snowbirds”. Owners of these transitory recreational vessels are either traveling north to south towards a warmer climate in the fall or south to north towards a cooler climate in the spring which can result in frequent bridge openings due to increased vessel numbers. During the spring and fall months, the flow of recreational vessels is constant.

There were approximately 10,461 and 11,429 vessel passages occurring in 2006 and 2005, respectively, over an eight-month period (during the peak boating season from April to November) according to records furnished by the NCDOT. (See Table A)

The final rule will facilitate pleasure vessels in navigating the AIWW, while also helping to ease vehicular traffic congestion.

The Coast Guard received 10 comments to the NPRM published on May 8, 2007 (72 FR 26038). The comments included nine letters from homeowners and one written request from the North Carolina Department of Environment and Natural Resources, Division of Coastal Management (NCDCM).

Of the nine comments received from homeowners, eight favored the proposal to allow the bridge to open on the hour on signal for pleasure vessels from 7 a.m. to 9 p.m. year round. The remaining comment opposed the proposal. However, that comment inaccurately concluded that the proposal would change the opening schedule to “on demand” for pleasure vessels. This rule will not create an “on demand” schedule, therefore we do not consider this comment to oppose the NPRM or this final rule.

The last comment from NCDCM contained a request that the NPRM be subject to a consistency review under the Coastal Zone Management Act. The Coast Guard response is included in the “Environment” section below.

Based on all of the comments received, we are publishing this final rule with no changes from the NPRM. Under this final rule, the draw of the S.R. 1172 Bridge will open on signal at all times for commercial vessels and on the hour on signal between 7 a.m. and 9 p.m., year-round for pleasure vessels. At all other times, the draw shall open on demand.

The Coast Guard is amending 33 CFR 117.821, by revising paragraph (a)(5) for pleasure vessels to read “shall open on the hour on signal from 7 a.m. to 9 p.m.” What this means is that the bridge shall only open on the hour, but that it may remain closed on certain hours if no one has requested an opening for that hour.

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 (DHS).

In accordance with 15 CFR part 930.35(a)(1) Negative determinations of proposed activities, we based this action on careful review of the waterway use, historical reports, and dated records seeking past impacts on coastal and natural resources around the bridge and within the surrounding areas.

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

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

This conclusion is based on the fact that the changes will have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the scheduled bridge openings to minimize delays.

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. No assistance was requested from any small entity.

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such 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 would 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 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 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

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

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32) (e) of the Instruction, from further environmental documentation because it has been determined that the promulgation of operating regulations for drawbridges are categorically excluded.

The Coast Guard has determined that changing the operating schedule for the SR 1172 Bridge will not have any foreseeable effect on any coastal uses or natural resources within the coastal zone of the State of North Carolina.

On October 1, 2007, the new Federal Docket Management System (FDMS) was established and FDMS numbers were assigned to all actions published in the Federal Register . New FDMS numbers are posted and requested comments are reviewed at www.regulations.gov. The FDMS number assigned to this rule is USCG-2007-0065.

On November 8, 2007, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations: Isle of Wight Bay (Sinepuxent Bay), Ocean City, Maryland” in the Federal Register (72 FR 63156). The previously assigned NPRM docket number was CGD05-07-100. We received no comments on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register . The bridge repairs, scheduled to begin on January 7, 2008, are necessary repairs that must be performed with all due speed to assure the continued safe and reliable operation of the bridge. Any delay in making this rule effective would not be in the best interest of public safety and the marine interests that use Isle of Wight Bay (Sinepuxent Bay). We received no comments on the published NPRM, which included the effective period, indicating a need to delay the effective date of this temporary final rule.

Maryland Department of Transportation-State Highway Administration (MDOT) owns and operates the bascule span of the U.S. 50 Bridge, at mile 0.5, across Isle of Wight Bay (Sinepuxent Bay) in Ocean City, MD. The bridge has a vertical clearance in the closed position to vessels of 13 feet, above mean high water (vertical clearance at center of channel increased by five feet). The current regulations are outlined at 33 CFR 117.559, which require the bridge to open on signal except: From October 1 through April 30 from 6 p.m. to 6 a.m., the draw shall open if at least three hours notice is given and from May 25 through September 15 from 9:25 a.m. to 9:55 p.m., the draw shall open at 25 minutes after and 55 minutes after the hour for a maximum of five minutes to let accumulated vessels pass, except that, on Saturdays from 1 p.m. to 5 p.m., the draw shall open on the hour for all waiting vessels and shall remain in the open position until all waiting vessels pass.

The Office of Bridge Inspection and Remedial Engineering, a division under MDOT, requested a change to the existing operating drawbridge regulations to accommodate the necessary repairs. The repairs include replacing the existing north and south pinion/bull gear sets in the west bascule leaf and replacing the existing grid deck in the bascule span. To facilitate the repairs, the drawbridge will be locked in the closed-to-navigation position from 8 a.m. on Monday, January 7, 2008 until and including 5 p.m. on Thursday, February 21, 2008.

Information provided by MDOT indicates that during the winter months, in January and February, the bridge has an opening frequency of five openings per month. Vessel operators with mast height lower than 13 feet still can transit through the drawbridge across Isle of Wight Bay (Sinepuxent Bay) during the rehabilitation. The project will also require a small barge, measuring 8 feet by 27 feet, for the gear removal/grid deck installation. The barge will only be needed for a six-day period and removed at the end of each procedure at the end of each day. However, the barge can be removed during an emergency at any time. Also, the Atlantic Ocean is an alternate route for vessels with a mast height greater than 13 feet. Therefore, vessels should not be negatively impacted by this temporary change.

The Coast Guard received no comments to the NPRM. Based on the information provided, we will implement a final temporary rule with no changes to the NPRM.

The Coast Guard is suspending the operating regulations at 33 CFR 117.559 for the U.S. 50 Bridge at mile 0.5, in Ocean City, Maryland from 8 a.m. on January 7, 2008, through 5 p.m. on February 21, 2008. During this suspension period, the Coast Guard will implement temporary operating regulations for this bridge. The final temporary rule states that the bridge need not be opened by the bridge operator, Maryland Department of Transportation-State Highway Administration, during this period.

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.

Due to the historical average number of bridge openings during this time period, this temporary change will have only a minimal impact on maritime traffic seeking to transit the bridge. Vessel operators with mast height lower than 13 feet still can transit through the drawbridge across Isle of Wight Bay (Sinepuxent Bay) during the rehabilitation. Also, the Atlantic Ocean is an alternate route for vessels with a mast height greater than 13 feet who cannot transit under the bridge during this period.

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

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

This rule will affect the following entities, some of which might be small entities: Owners and operators of vessels with over 13 feet of mast height seeking to transit the bridge between 8 a.m. on January 7, 2008, through 5 p.m. on February 21, 2008. This rule will not have a significant economic impact on a substantial number of small entities because vessel operators with mast height lower than 13 feet still can transit thorough the drawbridge. The Atlantic Ocean is an alternate route for vessels with a mast height greater than 13 feet.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could 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 (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

This rule will not 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 would 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

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

We have analyzed this rule under Commandant Instruction M16475.lD 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 because this rule involves drawbridge regulations. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation.

In Title 33 of the Code of Federal Regulations, Parts 1 to 124, revised as of July 1, 2007, in part 117, under ILLINOIS, on page 587, reinstate § 117.397 to read as follows:

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 rule effective less than 30 days after publication in the Federal Register . It would be contrary to public interest to delay the effective date of this rule.

The Department of Homeland Security designated the 2008 State of the Union Address a National Special Security Event (NSSE). The Coast Guard is establishing this security zone to support the United States Secret Service, the designated lead federal agency for an NSSE, in their efforts to coordinate security operations and establish a secure environment for this highly visible and publicized event.

The measures contemplated by the rule are intended to protect the public and high-ranking public officials by preventing waterborne acts of terrorism, which terrorists have demonstrated a capability to carry out. Immediate action is needed to defend against and deter these terrorist acts.

The ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. Due to increased awarness that future terrorist attacks are possible, the Coast Guard, as lead federal agency for maritime homeland security, has determined that the Coast Guard Captain of the Port must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. This security zone is part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks.

The Captain of the Port Baltimore is establishing a security zone to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against a gathering of high-ranking United States officials at or near the U.S. Capitol Building would have. This temporary security zone of 24-hour duration is necessary to provide for the security of high-ranking United States officials and the public at large.

The 2008 State of the Union Address is scheduled for the evening of January 28 in Washington, D.C. This temporary security zone applies to all waters of the Potomac River, from the Woodrow Wilson Memorial Bridge upstream to the Key Bridge, including the waters of the Anacostia River downstream from the Highway 50 Bridge to the confluence with the Potomac River, including the waters of the Georgetown Channel Tidal Basin. This rule is effective from 8 a.m. on January 28, 2008, through 8 a.m. on January 29, 2008.

Vessels underway at the time this security zone is implemented must immediately proceed out of the zone. We will issue written and broadcast Notices to Mariners to further publicize the security zone and any revisions to the zone.

Except for Public vessels and vessels at berth, mooring or at anchor, this rule temporarily requires all vessels in the designated security zone as defined by this rule to depart the security zone.

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. There is little seasonal vessel traffic associated with recreational boating and commercial fishing during the effective period, and vessels may seek permission from the Captain of the Port Baltimore to enter and transit the zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners of operators of vessels intending to operate, transit or anchor on the Potomac River, from the Woodrow Wilson Memorial Bridge upstream to the Key Bridge, including the waters of the Anacostia River downstream from the Highway 50 Bridge to the confluence with the Potomac River, including the waters of the Georgetown Channel Tidal Basin, from 8 a.m. on January 28, 2008 through 8 a.m. on January 29, 2008. This security zone will not have a significant economic impact on a substantial number of small entities due to a lack of seasonal vessel traffic associated with recreational boating and commercial fishing during the effective period. Also, vessels may seek permission from the Captain of the Port Baltimore to enter and transit the zone.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D 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 security 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 where indicated under ADDRESSES.

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

Organization of this document. The following outline is provided to aid in locating information in this preamble.

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine on August 7, 2006. The SIP revision consists of the Clean Air Act (CAA or Act) Section 110(a)(1) 8-hour ozone maintenance plans for four areas in Maine. Maine held a public hearing on the proposed SIP revision on July 6, 2006. The maintenance plans demonstrate how the state intends to maintain the 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. These plans replace the existing ozone maintenance plan for the former Hancock and Waldo Counties 1-hour marginal ozone nonattainment area. That plan had been included as part of the redesignation request for this area as required under 175A of the Clean Air Act. (See 62 FR 9081; February 28, 1997.)

Maine has four areas that are required to submit a CAA Section 110(a)(1) maintenance plan. This requirement applies to areas that are designated as attainment/unclassifiable for the 8-hour ozone standard and also had a designation of either nonattainment or attainment with an approved maintenance plan for the 1-hour ozone standard as of June 15, 2004 (the effective date of the 8-hour ozone standard designation for these areas). 1 In Maine, these areas are:

The exact cites and towns in these areas are listed in the Technical Support Document (TSD) for this action, and in the Maine submittal. The TSD and Maine's submittal are available in the docket for this action or from the contact listed in the FOR FURTHER INFORMATION CONTACT section of this action.

Section 110(a)(1) of the CAA requires, in part, that states submit to EPA plans to maintain any NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were either nonattainment or maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS. EPA established June 15, 2007, three years after the effective date of the initial 8-hour ozone designations, as the deadline for submission of plans for these areas.

On May 20, 2005, EPA issued guidance  2 that applies, in part, to areas that are designated attainment/unclassifiable for the 8-hour ozone standard and either have an approved 1-hour ozone maintenance plan or were designated nonattainment of the 1-hour ozone standard. The purpose of the guidance is to assist the states in the development of a SIP which addresses the maintenance requirements found in Section 110(a)(1) of the CAA. There are five components of a Section 110(a)(1) maintenance plan which are: (1) An attainment inventory, which is based on actual typical summer day emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NO X ) for a ten-year period from a base year as chosen by the state; (2) a maintenance demonstration which shows how the area will remain in compliance with the 8-hour ozone standard for 10 years after the effective date of designations (June 15, 2004); (3) a commitment to continue to operate air quality monitors; (4) a contingency plan that will ensure that a violation of the 8-hour ozone NAAQS is promptly addressed; and (5) an explanation of how the state will track the progress of the maintenance plan.

EPA has determined that the ME DEP (Maine Department of Environmental Protection) 8-hour ozone maintenance plans address all of the necessary components of a Section 110(a)(1) 8-hour ozone maintenance plan as discussed below.

A. Emissions Inventory: An emissions inventory is an itemized list of emission estimates for sources of air pollution in a given area for a specified time period. ME DEP has provided a comprehensive and current emissions inventory for ozone precursors (NO X and VOCs) in the four areas. ME DEP uses 2002 as the base year from which it projects emissions. The submittal also includes an explanation of the methodology used for determining the anthropogenic emissions (point, area, and mobile sources) in the maintenance areas. The inventory is based on emissions for a typical ozone season day. The term “typical” refers to emissions expected on a typical weekday during the months where ozone concentrations are typically the highest.

B. Maintenance Demonstration and Tracking Progress: With regard to demonstrating continued maintenance of the 8-hour ozone standard, ME DEP projects that the total emissions from the four maintenance areas will decrease during the ten-year maintenance period. ME DEP has projected emissions from 2002 until 2016. The projected trend in emissions is downward. This clearly demonstrates that the 8-hour ozone standard will be maintained for the ten year period between 2004 and 2014, which is the required test, even though a specific inventory was not prepared for 2014.

Tables 1 through 4 show the total VOC and NO X emissions for each of the four maintenance areas in Maine for the base year (2002), an interim year (2009), and a final year (2016). 3 More detailed emissions tables can be found in the TSD for this action and the ME DEP submittal. The trend in emissions is downward, for each pollutant, in each area. As such, the plan demonstrates that, from an emissions projections standpoint, emissions are projected to decrease.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

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

On October 27, 1998 (63 FR 57356), EPA issued the NO X SIP Call, which required 22 states, including Michigan, to prepare plans to reduce the transport of ozone throughout the eastern part of the United States. This was to be accomplished by reducing emissions of NO X from selected source categories, primarily major fuel burning sources, using available cost-effective measures. The rule established a cap on emissions of NO X from each state. States had flexibility in determining which fuel burning sources were to be included in their rules. For the most part, states targeted NO X reductions from electric utilities and other large industrial boilers, cement kilns, and IC engines as sources which could be controlled in a cost-effective manner. Background information in this regard is available from documents prepared by EPA, and can be found at http://www.epa.gov/ttn/rto/otag/index.html.

Some states and industry challenged the rule. In Michigan v. EPA , 213 F.3d 663 (DC Cir. 2000), the Court largely upheld EPA's rulemaking. It did, however, remand a portion of the rule concerning IC engines to EPA for further notice and public comment.

Subsequent to the Court's decision, EPA proceeded initially with rules concerning electric generating units (EGU), industrial boilers (non-EGU) and cement kilns as Phase I sources. The IC engines fell into the Phase II group, to be addressed at a later date. Michigan adopted its Phase I rules and submitted them to EPA. We conditionally approved them on April 16, 2004 (69 FR 20548) and finally approved them on May 4, 2005 (70 FR 23029).

On April 21, 2004 (69 FR 21603), EPA issued the Phase II Rule. It required most states with Phase I budget programs to submit a Phase II plan to achieve incremental reductions not addressed by Phase I rules. The Phase II Rule also identified the additional NO X budget reductions (incremental reductions) that states would have to achieve by regulating large (greater than one ton per day emissions) IC engines. EPA calculated the amount of incremental reductions required by re-calculating the overall budget to reflect a control level of 82 percent from natural gas-fired lean-burn IC engines with greater than one ton per day NO X emissions. MDEQ drafted the new rule (R 336.1818 Emission limitations for stationary internal combustion engines, also known as Rule 818) based on guidance from EPA dated September 19, 2004, which contained an example model rule.

The public process for Rule 818 started on April 1, 2006 when the rule was made available for public comment in the Michigan State Register. On April 3, 2006, notices that the rule was available for public comment were published in four newspapers throughout Michigan. Both the notices in the Michigan State Register and the newspapers indicated that a public hearing would be held on the rule on May 9, 2006.

On December 22, 2006, the Michigan Department of Environmental Quality (MDEQ) submitted its Phase II rules to EPA. MDEQ sent additional follow-up information addressing the budget demonstration for this source category in a March 12, 2007 letter requesting EPA approval. Because Michigan adopted EPA's model rule in which was used to calculate the state's Phase II budget, it follows that Michigan's Phase II budget will be met.

In the Phase II Rule, EPA calculated the 2007 base year emissions inventory from which Michigan needed additional reductions of 1,033 tons per ozone season. EPA based the calculation upon achieving an 82 percent reduction at all IC engines in Michigan with greater than one ton per day of NO X emissions.

Rule 818 applies only in the fine grid portion of Michigan, as this is the only portion of Michigan where the NO X SIP Call (both Phases I and II) applies (see 69 FR 21627-8). Michigan's fine grid includes the following counties: Allegan, Barry, Bay, Berrien, Branch, Calhoun, Cass, Clinton, Eaton, Genesee, Gratiot, Hillsdale, Ingham, Ionia, Isabella, Jackson, Kalamazoo, Kent, Lapeer, Lenaee, Livingston, Macomb, Mecosta, Midland, Monroe, Montcalm, Muskegon, Newaygo, Oakland, Oceana, Ottawa, Saginaw, Saint Clair, Saint Joseph, Sanilac, Shiawassee, Tuscola, Vanburen, Washtenaw and Wayne. Rule 818 applies to any person who owns or operates a large stationary reciprocating IC engine and other smaller stationary internal combustion engines that are included in a compliance plan. A large IC engine is defined as an engine that emits more than one ton of NO X per ozone season day, based on operation during the 1995 ozone season.

EPA published the incremental budget for affected states including Michigan in the April 21, 2004, Federal Register (69 FR 21604). The State's budget demonstration shows that the State will be able to reduce emissions of NO X to meet the Phase II incremental difference of 1,033 tons of NO X for the ozone season.

Approval of Rule 818 will provide a means by which the State of Michigan will meet the required reductions of NO X emissions from IC engines during the ozone season. The State rule affects NO X SIP Call IC engines, as well as any other stationary internal combustion engine subject to NO X control in the State's rule, within Michigan's fine grid. The emission reductions for some large engines will be permanent and year-round resulting from low emission combustion measures retrofitted to existing engines. Low emission combustion measures cannot be cycled off once the changes are made to the engine. The combustion control technology is a permanent, physical change to the design and operation of the engine which, when implemented, is expected to reduce emissions of NO X year-round. The State's rules include provisions which the source must follow to demonstrate compliance with the rules. EPA expects environmental benefits and health implications to be permanent.

The State Rule 818 includes a requirement that an owner or operator of a large IC engine shall not operate an affected engine during the ozone period, unless there is a compliance plan which meets the requirements of the rule. Owners and operators of subject large IC engines were required to submit compliance plans to the State by October 1, 2006, and the rules prohibit operation of affected engines after May 1, 2007, except in compliance with the requirements. Included in the compliance plan is a requirement that the projected NO X emissions from the engine, in grams per break horsepower-hour, be included in a federally enforceable permit. This information will enable the State to determine if reductions from the covered sources should meet the Phase II budget increment. The failure of a source to meet the required NO X reductions is a violation of the provisions of the permit. The State of Michigan is expected to enforce non-compliance with its rules by reviewing monitoring and testing information submitted by the owners and operators of the affected engines.

EPA is approving Rule 818 submitted by Michigan. We are taking this action because we have determined that the rule satisfies the requirements of the Clean Air Act and the NO X SIP Call Phase II rules. The State has shown, through its budget demonstration, that it can achieve the Phase II budget increment through source compliance with the State's rules affecting IC engines and the State's permitting program. Meeting the Phase II budget increment and the Phase I increment means the State will meet its total overall ozone season NO X budget and bring about reductions in ozone concentrations in the State and downwind from Michigan.

Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ).

This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ).

Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

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

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

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

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

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

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

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

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0445 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before March 31, 2008.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0445, by one of the following methods.

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

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

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

In the Federal Register of August 8, 2007 (72 FR 44439) (FRL-8138-8), EPA issued a proposal to revoke, modify, and establish specific tolerances for residues of the herbicides MCPA and triallate; and the insecticides acephate, fenbutatin-oxide (hexakis), and pyrethrins. Also, the proposal of August 8, 2007 provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under FFDCA standards.

In this final rule, EPA is revoking, modifying, and establishing specific tolerances for residues of acephate, fenbutatin-oxide (hexakis), MCPA, pyrethrins, and triallate in or on commodities listed in the regulatory text of the proposal published August 8, 2007.

EPA is finalizing these tolerance actions in order to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Food Quality Protection Act (FQPA). The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report of the Food Quality Protection Act (FQPA) Tolerance Reassessment Progress and Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend certain tolerance actions to be implemented to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone: 1 (800) 490-9198; fax: 1 (513) 489-8695; internet at http://www.epa.gov/ ncepihom/ and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161; telephone: 1 (800) 553-6847 or (703) 605-6000; internet at: http://www.ntis.gov/ . Electronic copies of REDs and TREDs are available on the Internet and in the public dockets EPA-HQ-OPP-2007-0445 and EPA-HQ-OPP-2004-0154 (fenbutatin-oxide/hexakis), EPA-HQ-OPP-2004-0156 (MCPA), EPA-HQ-OPP-2005-0043 (pyrethrins), and EPA-HQ-OPP-2006-0586 (triallate) at http://www.regulations.gov and http:// www.epa.gov/pesticides/reregistration/status.htm .

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

EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States.

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

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

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

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

This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In response to the proposal published in the Federal Register of August 8, 2007 (72 FR 44439), EPA received comments during the 60-day public comment period, as follows:

General . Comment by Pat Duggan, Editor of the Pesticide Chemical News Guide. The commenter questions why the Agency is retaining the postharvest designation on many of the pyrethrin tolerances when in a previous notice for the chemical thiophanate-methyl it was stated that “the Agency has determined that the timings of treatment should not be included as part of these tolerances because the enforcement agency analyzing samples would not know whether a commodity bore residues resulting from a seed treatment.”

Agency Response . Currently, residues of pyrethrin are regulated in two sections of the 40 CFR part 180. Residues of pyrethrins resulting from preharvest applications are regulated under the exemption in 40 CFR 180.905(a)(6). Residues of pyrethrins resulting from postharvest applications are regulated by tolerances in 40 CFR 180.128. Since there is an exemption in place for pyrethrins, there are deficiencies in the residue data used to support some tolerances. As part of the reregistration decision, the residue studies that were not previously conducted on crop groups and other commodities are being required and/or are underway. Although there are some residue data deficiencies, EPA was able to make a safety finding using conservative assumptions in the risk assessment, which indicated no dietary risks, and to consider the tolerances reassessed. Therefore, the Agency is retaining the postharvest terminology on an interim basis until these data for preharvest uses are received from the registrants and to prevent confusion in the 40 CFR part 180 between § 180.905(a)(6) and § 180.128 (unlike thiophanate-methyl which appears in only one section of the CFR.) Once the preharvest data are evaluated, and the Agency confirms that the tolerances in § 180.128 are reflective of the pre- and postharvest residue levels, the Agency intends to remove the postharvest designation to be consistent with current Agency practice.

The Agency did not receive comments on the following chemicals: acephate, fenbutatin-oxide (hexakis), MCPA, and triallate. Therefore, the Agency is finalizing, with the exception of the chlorpyrifos and metolachlor tolerances, the amendments proposed in the Federal Register of August 8, 2007 (72 FR 44439) (FRL-8138-8). The Agency received comments on chlorpyrifos and metolachlor which require additional time to address. The Agency will publish the response to comment and final tolerance rule for chlorpyrifos and metolachlor in the future. For a detailed discussion of the Agency's rationale for the establishments, revocations, and modifications to the tolerances, refer to the August 8, 2007 proposed rule.

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

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

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

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

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

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA.

2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

(a) General . (1) Tolerances are established for residues of acephate per se ( O , S -dimethyl acetylphosphoramidothioate) in or on the following food commodities 1 :

(2) A food tolerance of 0.02 ppm is established for residues of acephate per se ( O , S -dimethyl acetylphosphoramidothioate) as follows:

(c) Tolerances with regional registration . Tolerances with regional registration, as defined in § 180.1(m), are established for residues of acephate per se ( O , S -dimethyl acetylphosphoramidothioate) in or on the following food commodities:

(a) General . (1) Tolerances for residues of the insecticide pyrethrins ((1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienylcyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (pyrethrin 1), (1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropane-carboxylate (pyrethrin 2), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (cinerin 1), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (cinerin 2), (1S)-2-methyl-4-oxo-3-(2Z)-2-pentenyl-2-cyclopenten-1-yl (1R, 3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (jasmolin 1), and (1S)-2-methyl-4-oxo-3-(2Z)-pentenyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (jasmolin 2)), the insecticidally active principles of Chrysanthemum cinerariaefolium, which are measured as cumulative residues of pyrethrin 1, cinerin 1, and jasmolin 1 are not to exceed the following:

(2) A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on milled fractions derived from grain, cereal when present as a result of its use in cereal grain mills and in storage areas for milled cereal grain products.

(3) A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use.

(4) Where tolerances are established on both the raw agricultural commodities and processed foods made there-from, the total residues of pyrethrins in or on the processed food shall not be greater than that permitted by the larger of the two tolerances.

(a)(1) General . * * *

(a) * * *

(1) * * *

You may potentially be affected by this action if you manufacture (including import) consumer products intended for use by children and also manufacture (including import) lead or lead compounds. Importers are a subset of manufacturers under TSCA.

Potentially affected entities may include, but are not limited to:

• Manufacturers (including importers) of costume jewelry and novelty manufacturing (NAICS code 339914).

• Manufacturers (including importers) of dolls and stuffed toys (NAICS code 339931).

• Manufacturers (including importers) of games, toys, and children's vehicles (NAICS code 339932).

• Manufacturers (including importers) of fasteners, buttons, needles, and pins (NAICS code 339993).

• Wholesalers of toy and hobby goods, establishments with product line 12812 (NAICS code 42392).

• Discount department stores (NAICS code 452112).

• Warehouse clubs and supercenters (NAICS code 45291).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

EPA is amending its model Health and Safety Data Reporting rule under TSCA section 8(d) (TSCA section 8(d) model rule) to require manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds, as listed on the ITC's TSCA section 4(e) Priority Testing List , to submit certain unpublished health and safety data to EPA. The import of children’s products that contain lead or lead compounds constitutes the manufacture of lead or lead compounds under TSCA. EPA believes importers of such products are the entities most likely to have the type of health and safety studies EPA is seeking.

Based on information available to the Agency, EPA believes that imported items represent a majority of the value of sales of toys and games (without regard to lead content) in NAICS code 42392. In addition, EPA has reviewed Consumer Product Safety Commission (CPSC) recalls of lead-contaminated children’s products. None of the recalls reviewed implicated products that were produced domestically. See CPSC Recalls and Product Safety News at http://www.cpsc.gov/cpscpub/prerel/prerel.html (Ref. 1).

Processors are not included in this final rule. As explained in Unit II.B., the ITC listing procedure and the TSCA section 8(d) model rule do not generally result in TSCA section 8(d) model rules that cover processors. Therefore, a domestic company that processes lead in the manufacture of children’s products would not be covered, unless that company also manufactures (including imports) lead or lead compounds.

The regulatory text of this document lists examples of chemicals and their CAS numbers in the category of lead and lead compounds. The regulatory text also lists the data reporting requirements imposed by this amendment to the TSCA section 8(d) model rule.

Section 8(d) of TSCA allows EPA to “promulgate rules under which the Administrator shall require any person who manufactures, processes or distributes in commerce or who proposes to manufacture, process or distribute in commerce any chemical substance or mixture” to submit lists of certain health and safety studies, as well as copies of such studies (15 U.S.C. 2607(d)). Under TSCA, import is included in the definition of “manufacture” (15 U.S.C. 2602(7)).

The TSCA section 8(d) model rule (15 U.S.C. 2607(d)) is codified at 40 CFR part 716. EPA uses this TSCA section 8(d) model rule to quickly gather current information on chemicals. The TSCA section 8(d) model rule requires past, current, and prospective manufacturers, importers, and (if specified by EPA in a particular rule under TSCA section 8(d)) processors of listed chemicals to submit to EPA copies and lists of unpublished health and safety studies on the listed chemicals that they manufacture, import, or (if specified by EPA in a particular rule under TSCA section 8(d)) process. These studies provide EPA with useful information and have provided significant support for EPA's decisionmaking under TSCA sections 4, 5, 6, 8, and 9.

The TSCA section 8(d) model rule provides for the addition of TSCA section 4(e) Priority Testing List chemicals. Whenever EPA announces the receipt of an ITC report, EPA amends, unless otherwise instructed by the ITC, the TSCA section 8(d) model rule by adding the recommended (or designated) chemicals. In doing so, EPA must provide a 14-day period, which starts 14 days after date of publication of the amendments to the TSCA section 8(d) model rule in the Federal Register , for persons to submit information showing why a chemical substance, mixture, or category of chemical substances should be withdrawn from the amendment. The amendment adding these chemicals to the TSCA section 8(d) model rule is effective 30 days after date of publication in the Federal Register . If the Administrator withdraws a chemical from the amendment, then no later than 30 days after the date of publication of the amendment in the Federal Register , a Federal Register document announcing this decision is published.

Explanations of the procedures to follow if a respondent to this rule wishes to assert a claim of confidentiality for a part of a study or certain information contained in a study are provided at 40 CFR 716.55.

Aside from obligations that will arise under this final rule, persons who manufacture, process, or distribute lead may be subject to other requirements under TSCA section 8. For example, TSCA section 8(e) (15 U.S.C. 2607(e)) requires that:

Toxicity data that indicate a substantial risk of injury to health or the environment are the most common kinds of information received by EPA under TSCA section 8(e), but the Agency also often receives information on exposure, environmental persistence, or other kinds of information that indicate a substantial risk of injury to health or the environment. Of note, given the focus of this TSCA section 8(d) model rule, EPA issued guidance in September 2006 (Ref. 2) that may be relevant to persons who manufacture, process, or distribute lead-containing products intended for use by children. The guidance discusses the circumstances under which reporting under TSCA section 8(e) should be considered for substantial risk information obtained that indicates:

1. Previously unknown and significant human exposure to a chemical known to cause serious health effects (e.g., absorption of a chemical from manufactured products or articles) or

2. The presence of a previously unknown hazardous or toxic constituent in a product, including manufactured articles. Other guidance and information relevant to TSCA section 8(e) reporting are available on the TSCA section 8(e) website at http://www.epa.gov/oppt/tsca8e/index.htm .

EPA is publishing this action as a final rule without prior notice and an opportunity for comment pursuant to the procedures set forth in 40 CFR 716.105(b) and (c). EPA finds that there is ‘‘good cause’’ under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) to make these amendments without prior notice and comment. EPA believes notice and an opportunity for comment on this action are unnecessary. TSCA directs the ITC to add chemicals to the Priority Testing List for which EPA should give priority consideration. EPA also lacks the authority to remove a chemical from the Priority Testing List once it has been added by the ITC. As explained earlier in this preamble, pursuant to 40 CFR 716.105(b) and (c), once the ITC adds a chemical to the Priority Testing List , EPA in turn is obliged to add that chemical to the list of chemicals subject to the TSCA section 8(d) model rule reporting requirements, unless requested not to do so by the ITC. EPA promulgated this procedure in 1985 after having solicited public comment on the need for and mechanics of this procedure (Ref. 3). Because that rule established the procedure for adding ITC chemicals to the TSCA section 8(d) model rule, it is unnecessary to request comment on the procedure in this action. Finally, 40 CFR 716.105(b) and (c) do provide EPA with the discretion to withdraw a chemical from the TSCA section 8(d) model rule if a party submits to EPA information showing good cause that a chemical should be removed from the TSCA section 8(d) model rule.

In this document, EPA is adding the category of lead and lead compounds to the TSCA section 8(d) model rule as requested by the ITC in its 60 th ITC Report (Ref. 4). This final rule requires manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds to report certain unpublished health and safety data to EPA.

The general provisions regarding the submission of copies and lists of studies under EPA's TSCA section 8(d) model rule are located at 40 CFR 716.30 and 716.35, respectively, and additional reporting requirements and exemptions are described elsewhere in 40 CFR part 716. The reporting schedule and reporting period for persons subject to this final rule are described at 40 CFR 716.60 and 716.65. Chemical specific reporting requirements appear at 40 CFR 716.21.

Pursuant to 40 CFR 716.20(b)(5), this amendment specifies the types of environmental fate, health, and/or environmental effects studies that must be reported and the chemical grade/purity requirements that must be met or exceeded in individual studies for lead and lead compounds. The amendment requires the submission of all unpublished health and safety studies that:

1. Relate to the lead content of consumer products that are “intended for use by children” as that term is defined at 40 CFR 710.43 (excluding children’s metal jewelry, as described by CPSC in its ANPRM) (Ref. 5), or

2. Assess children’s exposure to lead from such products (including studies of bioavailability). With regard to grade/purity requirements, studies showing any measurable lead content in such products must be submitted.

The exclusion for children’s metal jewelry functions to exempt studies on those products already being directly addressed by CPSC. For more information on CPSC’s actions, please see CPSC’s Advance Notice of Proposed Rulemaking (ANPRM) regarding children’s jewelry containing lead (Ref. 5).

This amendment also specifies manufacturers subject to these reporting requirements: Manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds.

The economic analysis for the addition of lead and lead compounds to the TSCA section 8(d) model rule is entitled, TSCA Section 8(d): Economic Impact Analysis for Adding Lead and Lead Compounds from the 60 th Report of the TSCA Interagency Testing Committee to the Health and Safety Data Reporting rule . November 14, 2007. (Ref. 6).

The number of firms that will be affected by this final rule could not be estimated directly by EPA in the Economic Analysis. In most previous instances, the TSCA section 8(d) analysis has focused on the firms that manufacture the chemicals, as shown in the EPA-maintained Chemical Update System (CUS) database. In this instance, the CUS database does not include those companies that manufacture (including import) consumer products intended for use by children as well as manufacture (including import) lead or lead compounds. Importers are a subset of manufacturers under TSCA.

Reporting requirements are further limited to those studies that relate to the lead content of consumer products (excluding metal toy jewelry) that are intended for use by children or studies that assess children’s exposure to lead from such products (including studies of bioavailability).

The U.S. Census Bureau’s Economic Census does not separately identify these firms. As a result, it is difficult to estimate the number of firms affected by this rule. The Agency has chosen to estimate the number of affected firms by using census data of the number of firms included in certain NAICS categories, selected with the expectation that these categories include firms which may be engaged in manufacturing or importing children’s products. The selected categories and the number of firms in each are:

• NAICS code 339914—Costume jewelry and novelty manufacturing (651 firms).

• NAICS code 339931—Doll and stuffed toy manufacturing (134 firms).

• NAICS code 339932—Game, toy, and children's vehicle manufacturing (733 firms).

• NAICS code 339993—Fastener, button, needle, and pin manufacturing (180 firms).

• NAICS code 42392—Toy and hobby goods and supplies merchant wholesalers (establishments with product line 12812) (1,310 firms).

• NAICS code 452112—Discount department stores (39 firms).

• NAICS code 45291—Warehouse clubs and supercenters (16 firms).

It is expected that some number of firms within those categories will not need to respond, and that some other unknown number of firms not within those categories will be required to respond. This tabulation is meant to be suggestive of the potential number of respondents, given the available information, and cannot be expected to be an accurate point estimate.

The number of studies that might be submitted in response to this final rule is also difficult to estimate. The number of firms involved is likely to be larger than for other chemicals that have been listed under amendments to the TSCA section 8(d) model rule. However, the nature of the studies required to be submitted are restricted to a specific category.

An earlier examination of studies submitted under previous amendments to the TSCA section 8(d) model rule over an 8 year period prior to April 2002 reported an average of 5.66 studies per chemical. An examination of more recent experience with amendments to the TSCA section 8(d) model rule reported an average of 1 study per chemical. Based both on past EPA experience and on the professional judgment of Agency personnel responsible for the TSCA section 8(d) program, EPA estimates an average of 5 studies will be submitted for each of the 12 chemicals listed as examples of chemicals in the lead and lead compounds category, for a total of 60 studies. However, in consideration of the uncertainty of this per chemical estimate and the fact that relevant studies on lead compounds other than the listed 12 example compounds may be reported, the Economic Analysis also estimates the costs in a case where 10 times that number, or 600, studies are submitted (Ref. 6).

Given the assumptions in this unit, the industry reporting costs and burden associated with this rule are estimated in the Economic Analysis (Ref. 6) to be the following:

The sensitivity analysis conducted to estimate the costs if 600 studies are submitted suggests that the burden estimate for this TSCA section 8(d) action is relatively insensitive to the estimate of the number of studies. A ten-fold error in that estimate is calculated to lead to an increase of roughly 1,500 burden hours (or less than 12%), and an increase of about $74,000 in cost (or less than 10%). The burden and cost estimates are largely determined by the estimate of the number of responding firms, and is relatively insensitive to the estimate of the number of studies.

The estimated annual cost of the TSCA section 8(d) model rule to the Federal Government is approximately the time of one full-time employee, or 2,080 hours. Based on previous TSCA section 8(d) analyses and Agency professional judgment, this particular data collection is expected to represent 25% of 1 year’s burden, or the equivalent of approximately 520 hours. That will amount to a cost to Federal Government of $25,285.

As specified in 40 CFR 716.105(c), EPA may remove a chemical substance, mixture, or category of chemical substances from this final rule for good cause prior to the effective date of this final rule. Any person who believes that the reporting required by this final rule is not warranted for a chemical substance, mixture, or category of chemical substances listed in this final rule, must submit to EPA detailed reasons for that belief. You must submit your request to EPA on or before February 12, 2008 and in accordance with the instructions provided in 40 CFR 716.105(c), which are briefly summarized here. In addition, to ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPPT-2007-0487 on your request and submit that request in accordance with the instructions in 40 CFR 716.105(c). If the Administrator withdraws a chemical substance, mixture, or category of chemical substances from the amendment, in accordance with 40 CFR 716.105(c), a Federal Register document announcing this decision will be published no later than February 28, 2008.

The official docket for this final rule has been established under docket ID number EPA-HQ-OPPT-2007-0487. The official public docket is available for review as specified in ADDRESSES . The following is a listing of the documents referenced in this preamble that have been placed in the official docket for this final rule:

1. CPSC. Recalls and Product Safety News. Available on-line at: http://www.cpsc.gov/cpscpub/prerel/prerel.html .

2. EPA. Toxic Substances Control Act (TSCA) Section 8(e) Notices—Frequent Questions—September 2006—Health and Safety - Questions 25 and 26. Available on-line at: http://www.epa.gov/oppt/tsca8e/pubs/frequentlyaskedquestionsfaqs.htm#health2 .

3. EPA. Chemical Information Rules; Additional Automatic Reporting; Final Rule. Federal Register (50 FR 34809; August 28, 1985).

4. ITC. Sixtieth Report of the ITC. Federal Register (72 FR 41414, July 27, 2007) (FRL-8137-6). Available on-line at: http://www.epa.gov/fedrgstr .

5. CPSC. Children's Jewelry Containing Lead; Advanced Notice of Proposed Rulemaking; Request for Comments and Information. Federal Register (72 FR 920, January 9, 2007).

6. EPA. TSCA Section 8(d): Economic Impact Analysis for Adding Lead and Lead Compounds from the 60 th Report of the TSCA Interagency Testing Committee to the Health and Safety Data Reporting rule. November 14, 2007.

The Office of Management and Budget (OMB) has exempted actions under TSCA section 8(d) related to the TSCA section 8(d) model rule from the requirements of Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993).

The information collection requirements contained in TSCA section 8(d) model rules have already been approved by OMB under the provisions of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., and OMB control number 2070-0004 (EPA ICR No. 0575). The collection activities in this final rule are captured by the existing approval and do not require additional review and/or approval by OMB.

EPA estimates that the information collection activities related to health and safety data reporting for the category of lead and lead compounds in this final rule will result in a total public reporting burden of 14,348 hours, or roughly 4.7 hours per firm. Of that total, an estimated 6,126 hours are estimated to be spent performing an initial review of the final rule. The remaining hours are associated with the actual required reporting activities (Ref. 6). As defined by the PRA and 5 CFR 1320.3(b), “burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal Agency. This includes the time needed to: Review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Under PRA, an Agency may not conduct or sponsor, and a person is not required to respond to, an information collection request unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, including its regulations implementing TSCA section 8(d) at 40 CFR part 716, are listed in the table in 40 CFR part 9 and included on the related collection instrument. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB’s implementing regulations at 5 CFR part 1320.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq ., the Agency hereby certifies that this final rule will not have a significant adverse economic impact on a substantial number of small entities. The factual basis for the Agency's determination is presented in the small entity impact analysis prepared as part of the Economic Analysis (Ref. 6) for this final rule, and is summarized here.

To estimate the impact of the final rule on a business, EPA used the “sales test,” wherein costs for any individual firm are measured as a percent of annual sales. The average cost per company for the final rule is estimated to be $283. At an average cost for any one firm of $283, the firm’s total sales would have to be less than $30,000 for this final rule to have an impact of even 1% of sales. Because of the uncertainty regarding the number and identity of the firms who will be required to respond to this data collection, it is not possible to directly compare the estimated cost to the actual sales volume of those firms. But due to the low level of the impact, it is not expected that this action will have a significant impact on a substantial number of small entities.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. In addition, EPA has determined that this final rule will not significantly or uniquely affect small governments. Accordingly, the final rule is not subject to the requirements of UMRA sections 202, 203, 204, or 205.

Based on EPA's experience with past TSCA section 8(d) model rules, State, local, and tribal governments have not been impacted by these rules, and EPA does not have any reasons to believe that any State, local, or tribal government will be impacted by this final rule. As a result, these rules are not subject to the requirements in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) or Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000).

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23,1997), does not apply to this final rule, because it is not “economically significant” as defined under Executive Order 12866, and does not concern an environmental health or safety risk that may have a disproportionate effect on children. This final rule requires the reporting of health and safety data to EPA by manufacturers (including importers) of certain chemicals requested by the ITC to be added to the TSCA 8(d) model rule in its 60 th ITC Report (Ref. 4).

This final rule is not subject to Executive Order 13211, entitled Actions that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Section 12(d) of NTTAA directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve special considerations of environmental justice-related issues pursuant to Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801 et seq ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP Web site at http://www.nero.noaa.gov/whaletrp/ .

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).

On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period.

A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (257 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (3.43 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting.

On January 17, 2008, an aerial survey reported an aggregation of twenty-nine right whales in the proximity of 43° 11' N latitude and 68° 20' W longitude. The position lies approximately 60 nm south of Rockland, Maine. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP.

Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.

NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule.

The DAM Zone is bound by the following coordinates:

43° 40' N., 68° 53' W. (NW Corner)

43° 40' N., 67° 46' W.

42° 46' N., 67° 46' W.

42° 46' N., 68° 53' W.

43° 40' N., 68° 53' W. (NW Corner)

In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Special note for gillnet fisherman: a portion of this DAM zone overlaps the year-round Cashes Ledge Closure Area found at 50 CFR 648.81(d), and the February Cashes Ledge Closure Area for Harbor Porpoise found at 50 CFR 229.33(a)(6). Due to these closures, sink gillnet gear is prohibited from these portions of the DAM zone.

Fishermen utilizing lobster trap/pot gear within portions of Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys.

Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys.

Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per string;

4. The breaking strength of each net panel weak link must not exceed 1,100 lb (498.8 kg). The weak link requirements apply to all variations in net panel size. One weak link must be placed in the center of the floatline and one weak link must be placed in the center of each of the up and down lines at both ends of the net panel. Additionally, one weak link must be placed as close as possible to each end of the net panels on the floatline; or, one weak link must be placed between floatline tie-loops between net panels and one weak link must be placed where the floatline tie-loops attach to the bridle, buoy line, or groundline at each end of a net string;

5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and

6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string.

The restrictions will be in effect beginning at 0001 hours January 31, 2008, through 2400 hours February 14, 2008, unless terminated sooner or extended by NMFS through another notification in the Federal Register .

The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA.

In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.

Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request.

NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable.

For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the Federal Register . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the Federal Register processes the document for publication.

NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.

The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ).

The rule implementing the DAM program has been determined to be not significant under Executive Order 12866.

The reef fish and shrimp fisheries of the Gulf of Mexico are managed under their respective FMPs (Reef Fish FMP and Shrimp FMP). The FMPs were prepared by the Council and are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On July 26, 2007, NMFS published a notice of availability of Amendment 27/14 and requested public comments (72 FR 41046). On October 23, 2007, NMFS published the proposed rule to implement Amendment 27/14 and requested public comments (72 FR 59989). NMFS partially approved Amendment 27/14 on October 19, 2007. The rationale for the measures in Amendment 27/14 is provided in the amendment and in the preamble to the proposed rule and is not repeated here.

NMFS disapproved the proposed management measure that would have assumed a 10-percent reduction in post-hurricane recreational fishing effort and landings as it related to total allowable catch (TAC) levels and associated management measures. NMFS determined that a 10-percent reduction in recreational fishing effort and landings was not based on the best scientific information available as required by national standard 2 of the Magnuson-Stevens Act, and was inconsistent with Council's stated objective to reduce fishing mortality and rebuild the red snapper stock. As a result of this disapproval, this final rule establishes a red snapper recreational season that remains open from June 1 through September 30 each year rather than the May 1 through October 15 season that would have resulted if the assumption of a 10-percent reduction in recreational fishing effort and landings had been approved.

NMFS is delaying, until June 1, 2008, the effectiveness of the requirements in § 622.41(m) to use non-stainless steel circle hooks when using natural baits to fish for Gulf reef fish and to use dehooking devices and venting tools when fishing for Gulf reef fish in the Gulf exclusive economic zone (EEZ). This delay in effectiveness will provide additional time for manufacturers and retail outlets to prepare for the demand for these newly required products and will provide more time for commercial and recreational fishers to comply with these new gear requirements.

Following are the public comments received on Amendment 27/14 and on the proposed rule along with NMFS' responses to those comments.

Comment 1 : Fishing conditions have improved, especially in the northeastern Gulf of Mexico, and there is no need to institute reductions in TAC, the bag limit, or the recreational season. In addition, artificial reefs and reductions in shrimp trawl effort have improved red snapper fishing.

Response : The red snapper stock assessment evaluated the status of the population both east and west of the Mississippi River delta. The assessment found the eastern portion of the population to be in better condition than the western portion, and that stock condition was improving. This increase in population abundance is likely the reason fishermen are seeing an improvement in fishing conditions. However, the red snapper population in both the eastern and western Gulf of Mexico is still considered overfished and undergoing overfishing; therefore, management measures are needed to allow the stock to rebuild by 2032.

Based on the red snapper rebuilding plan adopted by the Council in 2005, overfishing must end between 2009 and 2010. Ending overfishing and recovery of the red snapper population is contingent on reducing mortality in both the directed commercial and recreational fisheries and bycatch in the shrimp trawl fishery. More restrictive management measures are needed across all of these fisheries to constrain harvest and bycatch mortality.

The reduction in the directed fishery's TAC accounts for decreases in shrimp trawl effort. These decreases in shrimp trawl effort are expected to improve survival of juvenile red snapper. However, as mentioned above, fishing mortality in the directed fishery must also be reduced to rebuild red snapper.

Artificial reefs are known to improve recreational fishing opportunities for red snapper, and may increase red snapper productivity. Conversely, artificial reefs serve as fish attracting devices and, therefore, increase fishing mortality. Artificial reefs were discussed as one of several possible mechanisms to account for high stock recruitment during the Southeast Data, Assessment, and Review (SEDAR) process. Regardless, recreational fishing mortality is still higher than needed to rebuild the population and manage it at sustainable levels.

Comment 2 : High fuel prices and the after-effects of the 2005 hurricanes have reduced charter fishing operations and private recreational fishing effort, and, thus, little or no further action needs to be taken to constrain recreational red snapper harvest. Data used to analyze recent trends in effort and landings are questionable. Differences in regulations between state and Federal waters may have influenced the 2007 Marine Recreational Fisheries Statistical Survey (MRFSS) landings data, particularly with how anglers report where fish were harvested, causing an artificial spike in red snapper landings.

Response : The 2005 hurricane season was the busiest and costliest on record, resulting in significant physical and economic damage to coastal communities. In revising the red snapper rebuilding plan and developing management measures to constrain directed harvest, the Council selected as their preferred alternative the assumption of a continuing 10-percent reduction in post-hurricane directed fishing effort, even though the Council's Science and Statistical Committee (SSC) did not support the assumption that there would be a continuing reduction in fishing effort.

Similarly, the Southeast Fisheries Science Center (SEFSC) concluded the available data do not support the assumption of a 10-percent reduction in overall effort in the directed fishery following the 2005 hurricane season. The SEFSC based this determination on weighted 2006 effort levels, which were about 99 percent of the 2000-2004 average effort levels. The SEFSC indicated mixed changes occurred in recreational effort showing reductions in some sectors (particularly private vessels), but increases in other sectors (charter vessel and headboat). Increases in red snapper fishing efficiencies and landings, particularly off western Florida and Louisiana between 2005 and 2006 were also observed. The SEFSC also noted a fluctuating, but gradually increasing, trend in recreational effort commensurate with increases in the population. Given that private effort in state waters and for-hire effort in Federal waters are increasing, it is unlikely private effort in Federal waters will remain at current levels.

Preliminary MRFSS data through October 2007 indicate landings exceeded the 2007 recreational quota of 3.185 million lb (1.445 million kg), even under a reduced red snapper bag limit in Federal waters of two fish. Preliminary 2007 MRFSS landings were similar to or higher than landings in previous years during comparable time periods. There is no indication effort has been reduced to a point that would prevent recreational anglers from meeting or exceeding the annual quota (See also the response to Comment 3 regarding trip information). Even if these preliminary MRFSS landings are overestimated, recreational red snapper landings are likely to exceed the specified 2007 quota given that headboat red snapper landings and Texas Parks and Wildlife private and charter landings are not included in the preliminary 2007 landings estimate.

Comment 3 : Economic impacts of the recreational quota reductions and associated measures on the charter industry and associated businesses and communities are underestimated.

Response : Best available survey and modeling results indicate that relatively few trip cancellations are expected to occur as a result of this action. Most survey respondents indicated that when faced with a reduced or zero red snapper bag limit, they would either continue fishing for red snapper or fish for another species. Fishing for other species may generate distributional effects (i.e., the trips may occur from different ports, modes, or seasons, resulting in one port or entity or season losing business while another gains). These distributional effects, however, cannot be predicted with current data.

Preliminary data through August 2007 do not support claims of widespread reductions in charter business as a result of the interim measures reducing the recreational quota and bag limit. Because the recreational red snapper fishery in Federal waters did not open until late April, data for May through August 2007 were examined. During this period, approximately 461,000 trips were taken by recreational anglers on charterboats in the Gulf from Florida through Louisiana (data for Texas are not collected in the same data program and are not available). This compares to an average of approximately 403,000 angler trips on average per year for the previous 3 years, 2004 through 2006. Omitting 2006 data on the assumption that effort in that year was reduced due to lingering effects of the 2005 hurricanes, the annual average for 2004 through 2005 was only slightly greater at approximately 405,000 angler trips. Thus, while available data cannot address claims of severe economic losses by individual entities, preliminary 2007 data do not support contentions of widespread industry harm. Consistent with the projections, while effort may have shifted to other species or other charter businesses, widespread loss of effort as a result of the interim quota and bag limit reduction is not apparent. Although the management measures in the final rule are more restrictive than the interim measures, widespread effort declines are similarly not expected.

Comment 4 : A total mortality limit should be set for both commercial and recreational red snapper fisheries. This limit would include all fish killed for each sector. A sector that can reduce dead discards would see a commensurate increase in allowed landings.

Response : Establishing a total mortality limit was not considered in Amendment 27/14. While this concept would provide incentives for the respective fisheries to minimize dead discards, better estimates of discard mortality are needed. Only a short time series of commercial discard data was available for the most recent red snapper stock assessment and the data workshop panel believed recreational discards were much higher than estimated by MRFSS. For these reasons, available recreational and commercial discard data were not used in the assessment. Instead, discards were assumed to be due to the minimum size limit and were estimated from the predicted length composition of the catch. Because currently the only estimates of dead discards are produced from assessment model projections, it is not possible at this time to monitor total mortality limits on a real-time basis.

Comment 5 : Greater reductions in discard mortality in the commercial and recreational directed fisheries are needed to maximize both short-term and long-term yields.

Response : Reductions in red snapper regulatory discards are needed in all sectors of the directed red snapper fishery for the stock to recover over the long term and to reduce overfishing in the short term. If a 74-percent reduction could be achieved in directed fishery discard mortality, TAC could have been set at 7 million lb (3.2 million kg), and future TACs could be set higher. This level of reduction is not possible at this time given the available tools (e.g., gear restrictions, bag limits, size limits, etc.) managers have to limit bycatch. However, the rule does implement measures to reduce red snapper discard mortality. This rule sets the commercial size limit at 13 inches (33 cm) total length (TL) for the commercial fishery, requires the use of non-stainless steel circle hooks when fishing for reef fish with live bait , and requires specific venting tools and dehooking devices for both the commercial and recreational fisheries. Reductions in the commercial size limit are estimated to reduce dead discards by 40 to 60 percent and allow the stock to recover faster. It is unknown to what extent a requirement of circle hooks, venting tools, and dehooking devices will have in reducing bycatch mortality when harvesting reef fish, but all these gears have been shown to increase the survival of released fish.

Comment 6 : Reducing the commercial minimum size limit will enhance user conflict and is not fair and equitable. Recreational size limits should also be reduced to lower discard mortality. The commercial size limit should be further reduced to 12 inches (30.5 cm) TL, or no size limit should be implemented, to allow the stock to recover more quickly.

Response : Scientific analyses suggest both the red snapper stock and commercial fishery participants would benefit from reducing the commercial minimum size limit. This is because of high commercial discard mortality rates that nullify any benefit derived from protecting smaller size fish. However, reducing the minimum size limit in the recreational fishery would not benefit the red snapper stock or stock recovery in the long-term. The discard mortality rate of the recreational fishery is 15 to 40 percent whereas discard mortality rates for commercially caught red snapper are estimated to range between 71 and 82 percent. Thus, smaller fish caught and released by the recreational fishery are more likely to survive and help contribute to stock recovery. By contrast, reducing the commercial minimum size limit to 13 inches (33 cm) TL will allow previously discarded fish to be retained and counted toward the quota. In addition, long-term TACs associated with lower recreational minimum size limits are expected to be slightly less than TACs with a 16-inch (41-cm) TL minimum size limit. Therefore, reducing the minimum size in the recreational fishery will not maximize yield over the long-term.

Although having no commercial minimum size limit was estimated to allow the stock to rebuild slightly faster than with a 13-inch (33-cm) TL size limit, the difference in rebuilding is small. Also, if the commercial minimum size limit were eliminated, while the recreational sector operates under a minimum size limit, the potential for competition and conflict between recreational and commercial fishers would have increased. The Council recommended, and NMFS approved, a 13-inch (33-cm) TL minimum size limit because it will have positive biological impacts and will reduce the potential for user conflicts between the commercial and recreational sectors relative to the alternative of eliminating the commercial minimum size limit.

Comment 7 : The recreational fishing season should be changed. Suggested seasons included a separate spring/early summer season and late summer/fall season, shifting the season forward or backwards, or weekend openings. In addition, comments suggested the commercial fishery should be held to the same season as the recreational fishery.

Response : The Council evaluated numerous recreational fishing seasons including seasons with weekend openings. Ultimately, the Council determined it needed to preserve a core summer recreational fishing season. Comments from the public have indicated keeping the season open as long as possible is more preferable to more liberal bag or size limits. Therefore, given a bag limit of two fish, a zero-bag limit for the captain and crew of for-hire vessels, and a 16-inch (41-cm) TL minimum size limit, the Council recommended, and NMFS approved, the longest season that could be achieved and still cover the core summer fishing season. This season would be from June 1 to September 30 (122 days).

NMFS did not evaluate seasonal closure alternatives for the commercial red snapper fishery because fishery landings are managed in-season through an individual fishing quota (IFQ) program. This program was implemented in part to eliminate the derby fishery conditions that had developed in response to short fishing seasons. IFQ programs effectively control total annual harvest by enabling fishery managers to track and limit the landings of each individual program participant.

Comment 8 : Recreational measures for the eastern and western Gulf of Mexico recreational red snapper fisheries need to be different because of differences in how the fisheries operate.

Response : The Council considered different regulations between the eastern and western Gulf for the recreational fishery. Measures considered primarily examined different seasons; however, these options were not selected, in part, because of enforcement problems and angler confusion in areas around where the line of demarcation between the eastern and western Gulf is drawn.

Comment 9 : The two-fish bag limit is too restrictive. Either the four-fish bag limit should be maintained, or the bag limit should be the first four to six fish landed.

Response : In managing the recreational fishery such that harvest is constrained to the recreational quota, NMFS has employed bag limits, size limits, and seasonal closures. The combined effect of reducing the recreational bag limit from four to two fish, reducing the captain and crew bag limit for for-hire vessels, and reducing the season to a June 1 to September 30 should control effort sufficiently to ensure the recreational fishery remains within the 2.45 million-lb (1.11 million-kg) quota. To maintain a four-fish bag limit or institute some other bag limit greater than two fish, the fishing season would need to be further reduced. While some fishermen commented they would prefer to maintain the bag limit over season length, the majority of testimony from fishermen suggested they would prefer a reduction in the bag limit rather than a reduction in season length.

Comment 10 : The economic and social value of both recreational and commercial sectors needs to be considered in setting TAC. Current allocations of TAC should be changed to reflect these differences. The recreational fishery needs to be further divided into a for-hire and private angler allocation.

Response : This rule is intended to reduce the red snapper catch, bycatch, and discard mortality in the reef fish and shrimp fisheries, end overfishing of red snapper by 2010, and rebuild the red snapper stock by 2032. Therefore, addressing allocations is outside the scope of this rule. However, the Council is developing an amendment to address the allocation of different reef fish species for recommendation to NMFS and may include red snapper.

Comment 11 : Requirements for dehooking devices and venting tools should be standardized due to differences in performance of differently designed tools and other devices should be allowed. The effective date for specific fishing gear should be delayed to allow the fishing gear industry time to provide products to the public. The requirement for circle hooks creates an unfair burden on fishermen and causes increases in gut hooking.

Response : This rule provides specific details regarding the configuration of both dehooking devices and venting tools, as well as their use. The rule will require at least one dehooking device on a reef fish vessel, and the device must be able to remove hooks embedded in Gulf reef fish with minimum damage. For the venting tool, the rule will require at least one venting tool aboard a vessel, and the tool must be used to deflate the swim bladders of Gulf reef fish to release the fish with minimum damage. Gear types evaluated for this action were commercially available and easily obtainable by fishermen. Weighted release devices identified as alternative gear in comments on the rule are not commercially available at this time.

Additional public comments requested that the implementation of the circle hook requirement be delayed to allow manufacturers, distributors, and retail outlets sufficient time to produce and distribute the hooks and ensure adequate stock is available to meet fisherman demand. Additional time is reasonable to allow retailers to acquire sufficient stock and fishermen to come into compliance with these new gear requirements. Therefore, this final rule delays the effective date of these new gear requirements until June 1, 2008.

Circle hooks do not increase gut hooking in reef fish. As described in Amendment 27/14, circle hooks tend to embed in the corner of a fish's mouth, unlike J-hooks which are more likely to be swallowed. Swallowed hooks can cause internal damage leading to mortality. Because circle hooks tend to embed in the jaw, they are also easier to remove, causing the fish less stress when released and enhancing survival. Requiring the use of non-stainless steel circle hooks will allow a hook to degrade over time, providing a fish with a greater chance for survival.

Comment 12 : There is a lack of enforcement of commercial fishing vessels, which allows illegal harvest of red snapper and contributes to overfishing.

Response : NMFS law enforcement officials work cooperatively with other Federal and state agencies to reduce and prevent illegal activity. The recently implemented red snapper IFQ program was designed with enforceability in mind and with full input by Federal and state law enforcement officers. The red snapper IFQ program is the best monitored fishery in the Gulf. It incorporates a vessel monitoring system, pre-departure and advance landing notification requirements, a dockside monitoring component, and real-time data management to account for all red snapper landed including a checks-and-balances system matching quota allocations with fish purchased by dealers.

Comment 13 : Closures would preclude the shrimp fishery from achieving optimum yield (OY), and hence limit economic opportunities for the fishery.

Response : A restriction on effort in the mid-shelf region, which only affects the ability of the fishery to utilize a portion of the shrimp grounds for a limited time frame during the year, should not preclude the fishery from having the opportunity to achieve OY, as currently defined, on a continuing basis. Should it be necessary to implement a time-area closure to restrict fishing mortality on red snapper, shrimp fishing effort can shift either inshore or offshore of the closed areas with highest red snapper abundance. However, currently the shrimp fishery is adversely affected by external economic factors, such as increased fuel prices and depressed ex-vessel prices, which are constraining fishing effort.

If economic conditions should improve and effort increase in the shrimp fishery, especially in the mid-shelf region where juvenile red snapper are abundant, then a time-area closure might have to be implemented to maintain the 74-percent shrimp trawl bycatch mortality reduction target. If a closure was implemented for an extended period of time, especially a closure concurrent with the Texas Closure, the likelihood of achieving OY might be decreased. However, the Council and NMFS could take subsequent action to address that problem if it occurred. Moving the fishery into shallower water would lead to catches of smaller shrimp, which could result in reduced profits. However, such an extended closure, or an expansion of the fishery, is not expected in the near future. Alternatively, if more efficient bycatch reduction devices (BRDs) are developed in the future and provide better reductions in juvenile red snapper mortality, time-area closures could be reduced. This could then allow the fishing mortality target to be achieved while simultaneously allowing effort to increase to a level that increases the likelihood that OY would be caught.

Given the above, the likelihood of significant adverse economic consequences resulting from a shrimp fishery area closure is low. The proposed bycatch mortality reduction target is allowed to decrease through time consistent with the framework procedure if supported by the best available scientific information. This would further reduce the chance the shrimp fishery would exceed its bycatch target. The long-term economic benefits associated with the proposed action are expected to outweigh the short-term adverse economic impacts that would result from fishing effort restrictions.

Comment 14 : Effort shifts to other areas because of closures will shift bycatch problems to other benthic species.

Response : Insufficient information is available to assess the differences in the quantity and species composition of bycatch on a scale that would allow estimation of differential impacts to marine species. Seasonal area closures are intended to achieve a level of fishing mortality reduction in red snapper. Seasonal closures that lead to relocation of effort by the shrimp fleet to nearshore waters would most likely increase the level of other finfish bycatch. The ratio of finfish biomass to shrimp biomass is often twice as high for nearshore waters as it is for offshore waters. However, populations of many of the common species, such as Atlantic croaker, spot, and longspine porgy, are less susceptible to the adverse effects of shrimp trawling because they are short-lived, and have high natural mortality rates.

Comment 15 : The rule does not reflect the Council's intent that the target-reduction of shrimp trawl bycatch mortality of red snapper be phased down from 74 percent of the benchmark years of 2001-2003, to 67 percent in 2011, and thereafter, reduced as necessary, to achieve the target goal of 60 percent by 2032.

Response : This rule allows NMFS the flexibility to modify the mortality reduction target over time via appropriate rulemaking, based on new information and analyses. The preferred alternative selected by the Council in Amendment 27/14 illustrates the Council's intent to adjust the targets over time to appropriate levels while maintaining the red snapper rebuilding schedule. As stated in the amendment, the specific reduction target values identified in the Council's preferred alternative may not be appropriate in the future following new assessments and scientific advice, much like future adjustments to TAC in the directed fishery. Nevertheless, any future adjustment would need to be made through the FMP framework procedures established in this rule. The framework procedure provides the NMFS Southeast Regional Administrator authority to adjust the target reduction level consistent with the red snapper rebuilding plan and the findings of subsequent stock assessments via appropriate rulemaking.

Comment 16 : The shrimp trawl fishery is not being constrained sufficiently through this rule, or is being constrained too much. Relaxation of the bycatch targets that occur later in the rebuilding plan could allow excessive bycatch by the shrimp fishery.

Response : This rule provides a procedure to constrain shrimp trawl bycatch mortality on red snapper to a level that is 74 percent less than the benchmark years of 2001-2003. The rule provides for adjustment of the target level reduction, consistent with the red snapper stock rebuilding plan and the findings of subsequent stock assessments, via appropriate rulemaking. These provisions ensure that any restrictions on shrimp trawl bycatch of red snapper will be consistent with the red snapper rebuilding plan and the best scientific information available.

In the near future, minimal measures to manage shrimp fishing effort in relation to the target red snapper bycatch mortality reduction goal may be needed. This is because the economic downturn in the shrimp fishery, coupled with increased fuel costs and hurricane damage to vessels and infrastructure, reduced effort from the benchmark years by nearly 60 percent in 2005 and 65 percent in 2006. Had the shrimp trawl fishery been operating at levels associated with the benchmark years, substantial action would have been required and proposed measures would have had greater adverse economic effects. Preliminary effort estimates for 2007 indicate the shrimp fishery is operating below the target level.

Allowing the shrimp bycatch reduction target to be reduced as the red snapper stock rebuilds will allow bycatch and bycatch mortality of red snapper to increase. However, any such increases would be constrained to levels consistent with the red snapper rebuilding plan and best available scientific information. The Council and NMFS believe it is appropriate to provide for reduction of the shrimp bycatch mortality target, so that the shrimp fishery could receive some benefit from stock rebuilding. Holding the shrimp bycatch mortality constant would not provide any benefits to the shrimp fishery, while the directed red snapper fishery would benefit from larger TACs. In making any future adjustments to the target bycatch goal, NMFS will ensure bycatch is being minimized to the extent practicable.

To ensure red snapper bycatch does not increase above levels specified in Amendment 27/14, the rule establishes a framework and actions for NMFS to take should the target not be met. These are summarized in the above comment.

Comment 17 : The final version of the amendment submitted for Secretarial review included updated shrimp landings information not available for the public hearing draft of the amendment. This lack of information was misleading regarding the Council's final choice of a preferred alternative, especially regarding the potential social and economic impacts of a closure. The text in the amendment is confusing in regard to how the revised BRD criterion would assist in reducing red snapper fishing mortality to achieve the reduction target. The document indicated an additional 10-percent reduction in fishing mortality on juvenile red snapper would be achieved through the certification and use of BRDs that are more efficient than the industry-standard Fisheye BRD. Conversely, another section of the document suggested there would be minimal additional reduction benefits from BRDs expected in the short-term.

Response : Updated information for 2006 indicated red snapper fishing mortality attributable to the shrimp fishery was 65 percent less than the benchmark years, and not 72 percent as noted in the public hearing draft. The updated shrimp effort data and possible implications were brought to the Council's attention at their June 2007 meeting prior to the Council's approval of the amendment for review by the Secretary. The public hearing draft of Amendment 27/14 contained the most recent information available at the time. This text was clear to point out the 2006 shrimp effort estimates were preliminary and based on two of three trimesters of data. If those estimates held true, the shrimp fishery would be near the 74 percent reduction goal.

With respect to the information on bycatch reductions from BRDs, both statements are accurate and are not contradictory. Additional bycatch mortality reduction is expected from the introduction of new BRDs for the fishery under a pending revision to the certification criterion for BRDs. Recent evaluations of the most commonly used BRD, the Fisheye positioned forward in the cod end, indicate this BRD is reducing fishing mortality (F) on juvenile red snapper by approximately 11 percent. Based on a proposed new certification criterion to be established in 2008, NMFS expects that new and more effective BRDs will be certified for use in the fishery. These new BRDs reduce F on juvenile red snapper by greater than 20 percent; therefore, the new BRDs should double the reduction in F derived from using BRDs. However, the contribution attributable to BRDs is much less than the reductions of F achieved by restricting fishing effort in areas where juvenile red snapper are caught.

Comment 18 : The rule does not consider mortality reductions achieved through improved BRDs in the process whereby the SEFSC makes recommendations to the RA in determining the scope and durations of shrimp closed areas. The condensing of the 12 statistical areas into 3 zones will reduce the SEFSC's ability to tailor the geographical scope of the time-area closures.

Response : The 74-percent reduction target in shrimp trawl bycatch mortality on red snapper from the 10-30 fathom area required by the red snapper rebuilding plan is based on total bycatch reduction. This includes both reductions in mortality from reduced fishing effort as well as reductions obtained from BRDs.

The three shrimp zones identified in this rule were developed to identify the geographical scope of the 10-30 fathom area of statistical zones 10-21 that could be closed to shrimp fishing should a closure be needed. The Texas zone corresponds to the area where the cooperative 60-day seasonal closure with the State of Texas to protect small brown shrimp emigrating from bay nursery areas occurs. The Louisiana and Eastern zones identify the rest of the area to be managed under the framework, but were split because of the lack of trawlable 10-30 fathom bottom in Federal waters between Louisiana and Mississippi. Because the rule states “the RA will, if necessary, establish a seasonal area closure of the shrimp fishery in all or a portion of the areas of the Gulf EEZ specified in paragraphs (l)(2) through (l)(4),” the closure could apply to all or a part of one or all three geographic zones. The extent of these closures would be based on the SEFSC's assessment.

Comment 19 : The shrimp assessment conducted by the SEFSC and framework procedures to set time and area closures should allow for input from the shrimp fishery.

Response : The SEFSC is dependent on landings and effort data from the shrimp fishery in conducting its assessment. The framework procedure indicates this assessment will be provided to the RA on or about March 1 of each year. At this time, the assessment results will be available to the public. Once the assessment is available, comments may be directed to the RA to use in the RA's determination if a closure is necessary, and if so, to what extent. It is also likely the assessment results will be presented to the Council for their review. Comments could also be introduced at this time when the Council evaluates the RAs decision.

The Administrator, Southeast Region, NMFS, determined that Amendment 27/14 is necessary for the conservation and management of the Gulf red snapper fishery and that it is consistent with the Magnuson-Stevens Act, and other applicable laws.

This proposed rule has been determined to be significant for purposes of Executive Order 12866.

NMFS prepared an SEIS for this amendment. A notice of availability for the draft SEIS was published on April 20, 2007 (72 FR 19928). A notice of availability for the final SEIS was published on August 3, 2007 (72 FR 43271).

A FRFA was prepared. The FRFA incorporates the initial regulatory flexibility analysis, a summary of the significant economic issues raised by public comments, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows.

The final rule will reduce the commercial quota from 4.65 million lb (2.14 million kg) to 2.55 million lb (1.16 million kg) and the recreational quota from 4.47 million lb (2.06 million kg) to 2.45 million lb (1.11 million kg), reduce the recreational bag limit from four fish to two fish and the bag limit for captain and crew of for-hire vessels to zero, reduce the commercial minimum size limit from 15 inches (38 cm) TL to 13 inches (33 cm) TL, require participants in all Gulf reef fish fishery sectors to use non-stainless steel circle hooks (when using natural baits) and to use venting tools and dehooking devices, provides for seasonal area closures of the Gulf shrimp fishery to reduce red snapper bycatch consistent with Amendment 27/ 14's framework procedure, and establishes authority to adjust the target shrimp bycatch reduction and effort levels and time-area closures consistent with the framework procedure.

The purpose of this final rule is to reduce red snapper catch, bycatch, and discard mortality in the directed commercial and recreational fisheries and the shrimp fishery in order to end overfishing for red snapper between 2009 and 2010 and rebuild the stock by 2032 in compliance with the red snapper rebuilding plan.

Several public comments were received on the economic impact of the rule. These comments stated that the economic impacts of the proposed TAC reduction and associated measures on the charter industry and associated businesses and communities were underestimated. Best available survey and modeling results indicate that relatively few angler trip cancellations are expected to occur as a result of this action. Most survey respondents indicated that when faced with a reduced red snapper bag limit, including a zero-fish bag limit, they would either continue fishing for red snapper or fish for another species. Fishing for other species may generate distributional effects (i.e., the trips may occur from different ports, modes, or seasons, resulting in one port/entity/season losing business while another gains). These distributional effects, however, cannot be predicted with current data. Additionally, contrary to the comments, preliminary data through August 2007 do not support claims of widespread reductions in charter business as a result of the interim reduction in the recreational quota and bag limit. Because the recreational red snapper fishery in Federal waters did not open until late April, data for May through August 2007 were examined. During this period, approximately 461,000 trips were estimated to have been taken by recreational anglers on charterboats in the Gulf from Florida through Louisiana (data for Texas are not collected in the same data program and are not available). This compares to an average of approximately 403,000 angler trips per year for the previous 3 years, 2004 through 2006. Omitting 2006 data on the assumption that effort in that year was reduced due to lingering effects of the Fall 2005 hurricanes, the annual average for 2004 through 2005 was only slightly greater, at approximately 405,000 angler trips. Thus, while these results do not address, and available data cannot address, claims of severe economic loss by individual entities, preliminary 2007 data do not support contentions of widespread industry harm. Consistent with the projections, while effort may have shifted to other species or other charter businesses, a widespread reduction in effort as a result of the reduced interim recreational quota and bag limit is not apparent. The management measures in the final rule are more restrictive than the interim measures, i.e., while the bag limit would remain at the interim 2-fish bag limit, a lower quota results in a shorter open season. However, because anglers indicated they would generally continue to fish under a lower bag limit, including a 0-fish limit, widespread effort declines are similarly not expected. For these reasons, no changes were made in the final rule as a result of these comments.

Additional public comments requested that the implementation of the circle hook requirement be delayed to allow manufacturers, distributors, and retailers sufficient time to produce and distribute the hooks and ensure adequate stock is available to meet fisherman demand. NMFS has revised this final rule to delay the effective date of these new gear requirements until June 1, 2008.

The management actions considered in this final rule are expected to affect all vessels that operate in the commercial red snapper fishery, all vessels that have a Federal reef fish for-hire permit, and all dealers and processors that handle product from these fisheries. Although this final rule contains actions that pertain to the commercial shrimp fishery, these actions are not expected to impose any direct adverse impacts on the shrimp fishery or associated entities.

An IFQ program was implemented January 2007 for the commercial red snapper fishery. Summary data on the fleet economics under this program are not yet available. Prior to the implementation of the IFQ program, however, 136 entities held Class 1 licenses that allowed a commercial vessel trip limit of up to 2,000 lb (907 kg) of red snapper and 628 entities held Class 2 licenses that allowed a trip limit of up to 200 lb (91 kg) of red snapper. Between 2002 and 2004, the top 50 red snapper vessels in terms of landings harvested 2.77 million lb (1.26 million kg) of red snapper, on average, or 64 percent of the industry total. Vessels ranked 51 to 131 harvested 1.29 million lb (0.59 million kg), on average, or 30 percent of the industry total for the same period. Thus, the top 131 red snapper vessels accounted for approximately 94 percent of the total industry red snapper landings. Red snapper are mainly harvested by fishermen using vertical-line gear. These fishermen accounted for approximately 90 percent of commercial red snapper Gulf harvests, on average, between 2002 and 2004.

Average annual gross receipts (2004 dollars) and net income (gross receipts minus all costs) per vessel vary by gear type, area fished, and volume of catch. High-volume vessels using vertical lines averaged gross receipts and net income of $110,070 and $28,466 in the northern Gulf, but only $67,979 and $23,822 in the eastern Gulf. Low-volume vessels using vertical lines averaged gross receipts and net income of $24,095 and $6,801 in the northern Gulf, but $24,588 and $4,479 respectively in the eastern Gulf. Vessels using bottom longlines averaged gross receipts and net income of $116,989 and $25,452 for high-volume vessels, but only $87,635 and $14,978 respectively for low-volume vessels.

The current fleet permitted to operate in the Gulf reef fish for-hire sector is estimated to be 1,625 vessels. The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The average charterboat is estimated to generate $76,960 in annual revenues and $36,758 in annual profits, whereas the appropriate values for the average headboat are $404,172 and $338,209, respectively.

The measures in this final rule are also expected to affect fish dealers, particularly those that receive red snapper from harvesting vessels. A Federal permit is required for a fish dealer to receive reef fish from commercial vessels, and there are 227 dealers currently permitted to buy and sell reef fish species. All reef fish processors are included in this total because all processors must be dealers. Most of these dealers are located in Florida (146), with 29 in Louisiana, 18 in Texas, 14 in Alabama, 5 in Mississippi, and 15 in states outside the Gulf. In addition, vessels identify the dealers who receive their fish on logbook reports. Commercial reef fish vessels with Federal permits are required to sell their harvest only to permitted dealers. From 1997 through 2002, on average, 154 reef fish dealers actively bought and sold red snapper. These dealers were distributed around the Gulf as follows: 7 in Alabama, 96 in Florida, 22 in Louisiana, 7 in Mississippi, and 22 in Texas. On average, Florida dealers purchased approximately $1.8 million of red snapper, followed by Louisiana ($1.4 million), Texas ($1.3 million), Mississippi ($174,000), and Alabama ($88,000). These dealers may hold permits for multiple fisheries, but it is not possible to determine what percentage of their total business comes from the red snapper fishery.

Approximately 2,000 vessels are expected to be issued a shrimp moratorium permit, which has been required to operate in the Gulf commercial EEZ shrimp fishery since March 26, 2007. Economic profiles of these vessels are not available at this time. Prior to implementation of the moratorium permit, approximately 2,666 vessels were identified as qualifying for the permit based on historical participation in the fishery. The following description of the shrimp fleet is based on an assessment of these qualifying vessels.

The average annual gross revenue (all harvest species) per qualifying shrimp vessel in 2005 was approximately $116,000, while the comparable figure for qualifying vessels active in the Gulf shrimp fishery, i.e., vessels with recorded shrimp landings in 2005, was approximately $152,000. In the same year, the maximum annual gross revenue from shrimp by a vessel was approximately $757,000 for both qualifying and active qualifying vessels, whereas the maximum annual gross revenue for all harvest species was approximately $1.89 million by an inactive qualifier and $757,000 for an active qualifier. According to recent projections, on average, Gulf EEZ commercial shrimp vessels are experiencing a -33 percent rate of return (net revenues/total fixed and variable costs). These economic losses were projected to continue until 2012.

In 2005, 609 dealers were identified operating in the commercial shrimp fishery. Employment information for this sector is not available. In 2005, 60 processors in the shrimp fishery were identified, employing approximately 3,400 persons, or an average of 56 employees per entity. The maximum number of employees for a shrimp processor in 2005 was 353.

The Small Business Administration (SBA) defines a small business in the commercial fishing industry as an entity that is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has total annual average receipts not in excess of $4.0 million annually (NAICS codes 114111 and 114112, finfish and shellfish fishing). For for-hire vessels, these same criteria apply except that the average annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processors and dealers, the SBA uses an employee threshold rather than a receipts threshold. The threshold is 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide for a seafood processor and 100 or fewer persons for a seafood dealer.

Some persons/entities are known to own multiple vessels (i.e., fleet operations) in the commercial red snapper fishery and in the commercial reef fish fisheries in general, but the extent of such operations is unknown. The maximum number of reef fish permits reported owned by the same person/entity is 6 permits. Additional permits and the revenues associated with those permits may be linked to an entity through affiliation rules, but such affiliation links cannot be made using existing data. Further, a definitive determination of whether any commercial entity would be considered a large entity cannot be made using average revenue information. However, since the average total revenue in the commercial red snapper fishery between 2002 and 2004 was $11.652 million, given the number of license holders in the fishery is 764, the summary statistics and the maximum number of permits owned by a single person/entity provided above, NMFS determined that all commercial reef fish harvest entities that will be affected by this final rule are small entities.

Fleet operations also exist in the for-hire sector, with at least one entity reported to hold 12 permits. The bulk of the fleet, however, consists of single permit operations. Thus, based on the average revenue figures above, NMFS determined that all for-hire operations that will be affected by this final rule are small entities.

Average employment per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is approximately 700 individuals, both part and full time. While all processors must be dealers, a dealer need not be a processor. Further, processing fish is a more labor intensive than buying fish. Therefore, given the employment estimate for the processing sector and the number of dealers that participated in the fishery on average per year from 1997-2002 (154 dealers), NMFS assumed that the maximum number of employees for reef fish dealers and processors are unlikely to surpass the SBA employment benchmarks. Therefore, NMFS determined that all reef fish dealers and processors that will be affected by this final rule are small entities.

As with the other fishery sectors, fleet operations are known to exist in the commercial shrimp fishery, but the magnitude of such cannot be determined using available data. Given the maximum revenue per vessel figures noted above, NMFS determined that all shrimp vessels that could be affected by this final rule are small entities.

Similar to the reef fish industry, processing shrimp is more labor intensive than buying shrimp. Thus, average employment in the shrimp dealer sector is assumed to be less than that in the processing sector. Because the maximum number of employees for a shrimp processor does not exceed the SBA threshold, NMFS determined that all shrimp dealers and processors that could be affected by this proposed rule are small entities.

The red snapper recreational and commercial quota reductions are expected to reduce profits in the for-hire and commercial sectors. In the for-hire sector, declines in profits, approximated by net operating revenue (gross revenue minus operating costs except labor) decreases, are expected due to declines in individual angler trip bookings. Under the 2.45 million lb (1.11 million kg) recreational quota and two-fish bag limit, the for-hire sector is projected to lose approximately $1.1 million in annual net operating revenues per year. It is not possible to accurately estimate the extent to which individual for-hire operations will be affected by the quota reduction. Depending on the geographic location of their operation, level of activity, reliance on red snapper trips, variety of species available, and preferences of their core clientele, some vessels will be impacted more than others. Quantifying the number of vessels that will face the greatest economic losses is not possible with available data. The average impact per vessel will vary inversely with the number of vessels substantially involved in and dependent upon the red snapper fishery. For example, if the expected economic impacts were borne by 10 to 25 percent of the fleet, average losses in net annual operating revenue per vessel would be expected to range from approximately $2,700 to $6,800. These losses still represent an average, however, and individual losses for some vessels will be higher by an indeterminate amount.

The assessment of impacts on for-hire profits was based on the recreational quota and not season length. Although industry comment during the development of the proposed rule indicated that a longer open season was preferable to a shorter season, regardless of total allowable catch, and would result in less economic losses, estimating the differential economic impacts of season length was not possible with available data. As a result, the estimated reduction in for-hire profits is neutral with respect to season length. If the red snapper season length is a significant factor in for-hire profits, then the estimated $1.1 million losses will understate the impacts of a shorter season by an indeterminate amount.

The commercial red snapper sector is expected to experience reductions in profits, measured by changes in net operating revenue to owners, captains, and crew, as a result of the lower quota specified by the final rule. Some of these losses will be mitigated by the reduction in the commercial minimum size limit. The impact analysis for the commercial red snapper sector assumed the fishery was operating under an IFQ program, which was implemented in January 2007. Under the IFQ, the number of vessels operating in the fishery is expected to decline substantially as quota shares are consolidated. However, since the IFQ program has been operating less than one year, sufficient data on the expected contraction is not yet available to indicate the size and type of fleet that will develop. Therefore, the analysis of the expected impacts of the commercial quota reduction assumed the fleet would contract to homogenous fleets of a specific vessel size and accompanying operational characteristics, with the resultant fleet comprised of either more small vessels (35 ft (10.7 m)) or fewer large vessels (65 ft (19.8 m)).

Under the status quo commercial quota of 4.65 million lb (2.14 million kg), the fleet is projected to contract to between ninety-five 35-ft (10.7 m) vessels or thirty-nine 65-ft (19.8 m) vessels. The average annual net operating revenue per vessel within each vessel size class was estimated at $274,000 and $667,000, respectively. Under the 2.55 million lb (1.16 million kg) commercial quota in the final rule, projected losses in net operating revenues to owners, captains, and crew in the commercial sector are estimated to be approximately $11.5 million. The resultant fleet is projected to consist of between fifty-two 35-ft (10.7-m) or twenty-two 65-ft (19.8-m) vessels, representing a reduction of forty-three 35-ft (10.7-m) vessels to seventeen 65-ft (19.8-m) vessels. For each of these potential fleets, the corresponding average net operating revenue for remaining vessels was estimated at $278,000 and $665,000, respectively. Average short-term net operating revenue losses per vessel are estimated at $121,000 and $295,000 for the 35-ft (10.7-m) and 65-ft (19.8-m) vessel classes, respectively.

The reduction in the commercial quota is also expected to adversely impact dealers and processors that purchase and sell red snapper. Although substantial decreases in revenues collected from domestic red snapper are anticipated, the expected losses to dealers and processors cannot be quantified due to lack of firm-level gross revenues and profit data. To mitigate the adverse economic impacts that will result from the 45-percent decrease in the commercial quota, dealers and processors may increase their reliance on imported snapper and use other reef fish species as substitutes.

The zero-fish captain and crew bag limit while on charter is not expected to affect the profitability of for-hire operations because the sale of recreational reef fish landings is already prohibited. Requiring all persons aboard reef fish vessels to use non-stainless steel circle hooks when using natural baits, venting tools, and dehooking devices is expected to result in minimal impacts on the profitability of small entities because of the current widespread use of circle hooks, their competitive pricing, and the availability of dehooking devices and venting tools for less than $15 each.

The management measures considered in this final rule do not affect the reporting or record-keeping requirements for reef fish and shrimp vessels, dealers, or processors. This final rule does not require additional records or report preparation.

Four alternatives, including the status quo, were considered for the action to set TAC and, thus, establish the recreational and commercial quotas in the red snapper fishery. Three of the alternatives include multiple options and sub-options to manage the recreational fishery under the respective TACs and quotas. The first alternative, the status quo, would not be consistent with assumptions related to expected reductions in directed and bycatch mortality rates and would not result in a sufficient, i.e., greater than 50 percent, probability of the red snapper rebuilding plan's success. If implemented, the status quo alternative would result in drastic TAC and quota reductions in subsequent years and, thus, greater adverse economic impacts during that time in order for the resource to continue on the designated recovery path.

The second alternative to the red snapper TAC would have reduced the TAC to 7.0 million lb (3.175 million kg), with resultant commercial and recreational quotas of 3.57 and 3.43 million lb (1.62 and 1.44 million kg), respectively. This alternative has the potential of generating, depending upon the sub-option selected, lower short-term adverse economic impacts than the final rule. However, a 7.0 million lb (3.175 million kg) TAC is not consistent with the current mortality reduction assumptions and would not provide the necessary greater than 50- percent probability of achieving the rebuilding plan objectives. Like the status quo, this alternative would require greater TAC reductions in subsequent years, thereby generating greater adverse economic impacts over that time than the final rule.

The third alternative to the red snapper TAC would have reduced the TAC to 3.0 million lb (1.36 million kg), with resultant commercial and recreational quotas of 1.53 and 1.47 million lb (0.69 and 0.67 million kg), respectively. This alternative would have reduced the TAC and quotas more than necessary to end overfishing within the specified time period and would be expected to result in an overly restrictive management approach with unnecessary and greater adverse economic impacts than the final rule.

Three alternatives, including the status quo, were considered for the action addressing post-hurricane effort and landings reductions. Although some post-hurricane reduction in effort and landings is demonstrated by available data, the reductions are not consistent across the entire fishery and are not expected to persist. Therefore, the final rule does not assume any post-hurricane effort reduction in the determination of the management measures necessary to limit the recreational sector to its quota. The second alternative would have assumed a 10-percent reduction in post-hurricane effort in the recreational red snapper fishery. This alternative would extend the fishing season and yield greater short term economic benefits than the final rule. However, a 10-percent reduction in effort is not supported by available data, and adopting such an assumption may result in a failure to meet conservation goals, resulting in long-term negative economic impacts relative to the proposed action. The third alternative would have assumed a 25-percent reduction in post-hurricane effort and landings. This alternative would result in a longer season than the final rule and result in greater short-term economic benefits than the final rule. However, a 25-percent reduction is also not supported by available data, and adopting that assumption would be expected to result in a failure to meet conservation goals, resulting in substantial long-term negative economic impacts relative to the final rule.

Two alternatives, including the status quo, were considered for the action to set the captain and crew bag limit. The final rule will allow the recreational red snapper fishing season to remain open 4-16 days longer relative to the status quo. The status quo alternative, which would allow the captain and crew to retain the angler bag limit, would require either a shorter season or a lower bag limit for recreational anglers to achieve the rebuilding goals. These more restrictive measures would be expected to result in greater reductions in trip demand and increased reductions in for-hire profits and angler value than the final rule.

Three alternatives, including the status quo, were considered for the commercial red snapper minimum size limit. The first alternative to the final rule, the status quo, would be expected to result in continued unnecessary bycatch mortality and would not, therefore, meet the Council's objectives. The 13-inch (33-cm) minimum size limit in the commercial sector is expected to result in decreased economic impacts to the fishery and associated industries due to increases in the operational efficiency of commercial vessels and a potential ex-vessel price increase for smaller fish. The third alternative would eliminate the commercial minimum size limit. Eliminating the commercial minimum size limit would increase user conflicts between the commercial and recreational sectors since the recreational sector would have a 16-inch (41 cm) minimum size limit, while the commercial sector would not have any minimum size limit. Further, because no commercial market is currently known to exist for red snapper smaller than 12 inches (30 cm), no additional benefits would be expected to accrue to the commercial sector. Thus, the total economic impacts to the commercial sector of an elimination of the minimum size limit would be expected to be comparable to those of the final rule.

Three alternatives, including the status quo, were considered for the gear requirement action. The two alternatives that contained new gear requirements contained options that specified the fisheries over which the requirements would apply. The final rule will require the use of non-stainless steel circle hooks when using natural baits, and require the use of venting tools and dehooking devices for all participants in the reef fish fisheries in the EEZ of the Gulf of Mexico. The final rule will reduce bycatch and bycatch mortality in the red snapper and reef fish fisheries and contribute to improving the likelihood of success of the red snapper rebuilding plan. This is expected to result in increased long-term economic benefits. The sub-options that reduced the fisheries to which the gear requirements will apply would be expected to result in less reduction in bycatch mortality and lower long-term economic benefits than the final rule. However, in general, little economic impact is expected because of the current widespread use of circle hooks and the low cost of venting/dehooking devices (less than $15 each).

The first alternative to the final gear action would not impose new gear requirements on fishermen and would not, in the short term, result in any direct adverse economic impacts. However, this alternative would not contribute to improving the likelihood of success of the red snapper rebuilding plan. Relative to the final rule, this alternative could result in more severe restrictions on fishery participants in the long run and, thus, generate greater adverse economic impacts.

The second alternative and associated sub-options to the final gear action would specify only a minimum hook size. Compared to the final rule, this alternative would be less effective in reducing bycatch and bycatch mortality. As a result, in the long run, it would be expected to result in smaller economic benefits than the final rule.

Six alternatives, including the status quo, were considered for the bycatch reduction target in the commercial shrimp fishery. The status quo would not establish a bycatch reduction target, would not ensure consistent reductions in bycatch fishing mortality on juvenile red snapper in the shrimp fishery, and would not be consistent with the 2005 SEDAR assessment recommendations to further reduce bycatch fishing mortality rates on the red snapper stock. The final rule incorporates a target reduction of shrimp trawl bycatch mortality on red snapper 74 percent less than the benchmark years of 2001-2003 as specified in the amendment, which is consistent with the red snapper quotas established by final rule, and increases the probability of success of the red snapper rebuilding plan. Establishment of the bycatch reduction target is an administrative action and will not result in any direct adverse economic effects.

The second and third alternatives to the final bycatch reduction target would establish lower reduction targets than the 74-percent target reduction incorporated in the final rule. Like the final rule, these alternatives are not expected to result in direct adverse economic impacts. However, the lower targets do not contribute sufficiently to increasing the likelihood of the success of the red snapper rebuilding plan and could be expected to require further effort reductions, resulting in more severe management measures in the long run. The fourth alternative would, as will the final rule, incorporate a 74-percent reduction in shrimp trawl bycatch mortality on red snapper, but would not specify changes to the target or the method by which the target might be adjusted in the future. Similarly, the fifth alternative would establish a 74-percent reduction in shrimp trawl bycatch mortality on red snapper, but would also explicitly link future adjustments to the bycatch reduction target to red snapper stock assessment updates.

Four alternatives, including the status quo, were considered for the action to potentially establish fishing restrictions for the EEZ shrimp fishery in the Gulf of Mexico if the bycatch reduction target in the fishery is not met. The first alternative to the final rule, the status quo, would not establish potential fishing restrictions for the Gulf shrimp fishery. The status quo would not result in direct or indirect adverse economic impacts because potential restrictions would not be established for the shrimp fishery. However, if effort reductions in the fishery are not sufficient to achieve target goals, this alternative may result in more severe future restrictions and potentially greater adverse economic impacts than the enactment of potential effort restrictions at this time.

The final rule will, if necessary, establish a procedure for implementing a seasonal closure in the 10- to 30-fathom (18- to 55-m) zone of selected areas within statistical zones 10-21 in the Gulf of Mexico via appropriate rulemaking. The closure is intended, when possible, to begin on the same start date as the closure of the EEZ off Texas. This measure will ensure that target reductions in shrimp trawl bycatch mortality are met, is consistent with the red snapper quotas, and will contribute to increasing the likelihood of the success of the red snapper rebuilding plan. Establishment of this procedure is an administrative action and will not result in any direct economic effects. Direct economic impacts will only accrue if, in the future, it is determined that the bycatch reduction target has not been met and a seasonal closure is necessary. The direct economic effects of the closure would be analyzed at that time, as appropriate.

The second and third alternatives to the final action to establish fishing restrictions if the bycatch reduction target in the fishery is not met would also establish a procedure for implementing seasonal closures, as necessary, in the 10 to 30-fathom (18 to 55 m) zone of selected areas within statistical zones 10-21 in the Gulf of Mexico but would consider alternative time frames for the closures. As with the final rule, this procedure and associated alternatives are administrative in nature and would not be expected to result in any direct economic effects. Direct economic impacts would only accrue if, in the future, it is determined that the bycatch reduction target has not been met and a seasonal closure is necessary. However, compared to the long-term benefits expected to accrue to the red snapper fishery from the final rule, smaller long-term economic benefits to the red snapper fishery would be expected from these alternatives. The greater positive impacts associated with the final rule are attributable to the intended starting date of any potential closure coinciding with the movement of age 1 snapper from shrimp grounds to larger structures.

Two alternatives, including the status quo, were considered for the action to establish a framework procedure to adjust effort in the commercial shrimp fishery. The status quo would not establish a framework procedure and would not support adjusting effort in the commercial shrimp fishery in response to a failure to meet bycatch reduction requirements in a timely and efficient manner. The final rule will allow the Regional Administrator to implement closures based upon annual shrimp effort assessments conducted by the Southeast Fisheries Science Center. This procedure is expected to be the quickest and most efficient approach to establishing closures. Two other options were considered under the second alternative. These options would establish less expedient means of implementing recommended closures. Direct adverse economic impacts are not expected to result from the alternatives included in this action because the establishment of a framework procedure to adjust effort in the commercial shrimp fishery is an administrative action. Direct effects will only accrue if shrimp effort needs to be adjusted. The direct effects of any adjustment will be analyzed at the time such action is initiated, as appropriate.

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

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, 2008, and which published in the Federal Register on January 25, 2008.

NMFS has determined that approximately 3,069 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 2008 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., January 27, 2008.

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 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 January 23, 2008.

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 February 8, 2008.

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