We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on October 17, 2007 (72 FR 58770). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

EASA Airworthiness Directive 2007-0007, dated January 9, 2007, specifies to incorporate into the aircraft maintenance program the fuel airworthiness limitation (FAL) maintenance and inspection tasks defined in EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006. We cited both these documents in the NPRM and specified the FAL tasks in paragraph (f)(1) of the NPRM. However, further examination of the EADS CASA Technical Document has shown that it does not contain FAL maintenance and inspection tasks. Therefore, we have removed paragraph (f)(1) of the NPRM and re-identified the remaining paragraphs in this final rule. We have also removed Note 1 of the NPRM, which gave instructions regarding maintenance documents and new inspections. That note is no longer relevant in this final rule. We have also added a difference in Note 2 of this final rule to specify that we have not included the FAL action in this final rule. If EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006, is revised in the future to include the FAL tasks, or if these tasks are included in another document, we might consider additional rulemaking then.

This AD requires operators to revise the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to include CDCCL data. Operators must comply with the terms of the ALS, as specified in sections 43.16 (for persons maintaining products) and 91.403 (for operators) of the Federal Aviation Regulations (14 CFR 43.16 and 14 CFR 91.403). However, for the FAA to require compliance with any new or more restrictive life limits and inspections that the manufacturer or the FAA might impose in the ALS, we must engage in rulemaking; if we do not engage in rulemaking, the revised limitations in the maintenance manual cannot be made mandatory. We have, however, determined that it is appropriate in this case to allow accomplishing the ALS revision by incorporating the CDCCLs as defined in later revisions of EADS CASA CN-235/C-295 Technical Document DT-0-C00-05001, Issue C, dated October 2006. Therefore, we have revised paragraph (f)(3) of the NPRM (paragraph (f)(2) of this final rule) to allow later revisions of the EADS CASA technical document as acceptable methods of compliance if they are approved by the Manager, ANM-116, International Branch, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency (EASA) (or its delegated agent).

We have also added Table 1 and a new Note 1 to this final rule to provide information about the EADS CASA Component Maintenance Manuals (CMMs) that are given as references in EADS CASA CN-235/C-295 Technical Document.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

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

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

We estimate that this AD will affect about 8 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $640, or $80 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on February 26, 2008 (73 FR 10188), and proposed to supersede AD 2008-02-09, Amendment 39-15339 (73 FR 3623, January 22, 2008).

AD 2008-02-09 was issued as an interim action in order to address the need for the immediate inspection for loose attachment bolts in the left-hand and right-hand wing airbrake intermediate control lever requirement and replacement if loose attachment bolts were found.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, issued Emergency AD No. 2007-0275-E, dated October 24, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products.

The EASA AD allows for repetitive inspections at intervals not to exceed 100 hours time-in-service or 12 months, whichever occurs first after the initial inspection if no loose bolts are found. The EASA AD also requires replacing the split helical spring lock washers with tab washers and the M8x34 bolts with M8x32 bolts on both wings at the next 1,000-hour inspection after the effective date of the AD.

The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action were analyzed separately for justification to bypass prior public notice.

We are issuing this AD to address the repetitive inspections and mandatory parts replacement issues.

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

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

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

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

We estimate that this AD will affect about 6 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $480, or $80 per product.

In addition, we estimate that any necessary follow-on actions will take about 12 work-hours and require parts costing $40, for a cost of $1,000 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

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

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

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

Airspace, Navigation (air).

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

From FERC's Web site on the Internet, this information is available in the eLibrary (formerly FERRIS). The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page.

User assistance is available for eLibrary and other aspects of FERC's Web site during normal business hours. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659.

The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2007 costs. The adjusted fees announced in this notice are effective June 2, 2008. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

The new fee schedule is as follows:

In the Federal Register of February 6, 2007 (72 FR 5367), FDA published a proposed rule to amend the regulation authorizing a health claim on the relationship between soluble fiber from certain foods and risk of CHD. FDA proposed to amend the CHD health claim at § 101.81 (21 CFR 101.81) so that foods that exceed the nutrient content requirement in § 101.62 for “low fat” due to fat content derived from whole oat sources (i.e., oat bran, rolled oats, whole oat flour, and oatrim) listed in § 101.81(c)(2)(ii)(A) would be eligible to bear the health claim. Specifically, FDA proposed to amend § 101.81(c)(2)(iii)(C) by removing the phrase, “low fat” food and creating a new § 101.81(c)(2)(iii)(D) to specify that the food shall meet the “low fat” food requirement, unless the food exceeds this requirement due to fat content derived from whole oat sources listed in § 101.81(c)(2)(ii)(A). FDA issued this proposed rule in response to a health claim petition submitted by the Quaker Oats Co. (the petitioner) on November 7, 2005, under section 403(r)(4) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 343(r)(4)). Section 403(r)(3)(B)(i) of the act (21 U.S.C. 343(r)(3)(B)(i)) states that the Secretary of Health and Human Services (the Secretary) (and, by delegation, FDA) shall issue regulations for health claims if the Secretary determines, based on the totality of publicly available scientific evidence, that there is significant scientific agreement that the claim is supported by such evidence (see also 21 CFR 101.14(c)). Section 403(r)(4) of the act sets out the procedures that FDA is to follow upon receiving a health claim petition. FDA filed the petition for comprehensive review in accordance with section 403(r)(4) of the act on February 15, 2006.

In regulations authorizing CHD-related health claims, FDA has required, with a few exceptions, that foods bearing such claims meet the “low fat“ criterion defined by § 101.62(b)(2), 1 the “low saturated fat” criterion defined by § 101.62(c)(2), and the “low cholesterol” criterion defined by § 101.62(d)(2) (see authorized claims in 21 CFR 101.75, 101.77, 101.81, 101.82, and 101.83) rather than applying the total fat, saturated fat, and cholesterol content disqualifying levels specified in the general requirement for health claims (§ 101.14(a)(4)). The “low fat” criterion is currently applied to the soluble fiber from certain foods and CHD health claim in § 101.81(c)(2)(iii)(C).

Prior to the publication of this final rule, foods such as Quaker Oats Co.'s flavored reduced sugar instant oatmeal products were ineligible for the soluble fiber from certain foods and CHD health claim because these products did not meet the “low fat” criterion, whereas its flavored, unmodified instant oatmeal product containing the same amount of rolled oats and fat, but 12 grams (g) more sugar, per packet does meet the criterion. The removal of sugar from the flavored unmodified instant oatmeal product resulted in more whole oats (and thus fat from whole oats) per RACC. Thus, these food products were not eligible to bear the soluble fiber from certain foods and CHD health claim because these foods exceed the “low fat” criterion due to the fat contained in the whole oat source.

In the proposed rule, FDA stated that a food product that contains any fat from ingredients other than whole oat sources would not be exempt from the “low fat” requirement. However, FDA asked for comment on whether whole oat food products that contain sources of fat other than whole oat sources should be exempt from the “low fat” requirement and, if so, how much and what types(s) of fat contributed by these sources would be acceptable (72 FR 5367 at 5370).

FDA solicited comments on the proposed rule. The comment period closed on April 23, 2007. The agency received eight responses, each containing one or more comments, to the proposed rule. The comments were from trade associations, industry, a health professional organization, a foreign government, and consumers. Most of the comments supported the proposed amendment. One comment raised issues that were outside the scope of this rulemaking and will not be discussed in this document. The remaining comments and the agency's responses are discussed below.

(Comment 1) One comment opposed FDA exempting whole oat food products from the “low fat” requirement, but did not provide any specific information or data in support of its position.

(Response) The agency disagrees with this comment. FDA believes that the consumption of foods containing whole oat products is helpful in reducing the risk of CHD, and the amount by which the fat content derived solely from whole oat sources may exceed the low fat criterion would not be very significant and is not likely to be a health concern. Moreover, the exemption does not cover a food product that contains any fat from ingredients other than whole oat sources and granting this exemption will provide consumers more choices of whole oat products (72 FR 5367 at 5370). The comment did not provide any information or data in support of its position.

(Comment 2) One comment opposing the proposed rule argued that granting the exemption would be the same as saying that full fat whole oatmeal cookies could reduce the risk of heart disease.

(Response) The agency disagrees with the comment. As discussed in the proposed rule, only a limited number of products would be newly eligible to bear the claim (72 FR 5367 at 5372). Under the new exemption, a food must meet the “low fat” requirement “unless the food exceeds this requirement due to fat content derived from whole oat sources” (§ 101.81(c)(2)(iii)(D)). The products eligible to bear the claim would not contain any fat from sources other than the fat inherent in the whole oat sources. Food products that are typically made with other fat sources, such as cookies, would likely be ineligible for the claim.

(Comment 3) One comment opposing the proposed rule was concerned that the exemption allowing an exception to a marketing claim for a single food product that has been modified would confuse consumers.

(Response) FDA disagrees with the comment. Consumers will not be confused by this exemption because it does not apply only to a single food product. The final rule merely expands the use of this health claim to cover any whole oat product that was previously ineligible for the claim due to the fat derived from the whole oat source. The food product described in the petition only serves as an example of a consequence that was not intended (reduction of sugar leading to ineligibility for the claim) in the authorization of the original health claim. The agency wishes to eliminate this unintended consequence and allow consumers access to information about the health benefits of whole oat sources.

(Comment 4) One comment stated that any health claim related to CHD should meet requirements of “low soluble fibre, low saturated fat, and low cholesterol.” The comment did not provide any specific information or data in support of its position.

(Response) Foods eligible for CHD-related health claims are currently required to meet the definition of “low fat,” “low saturated fat,” and “low cholesterol,” unless specifically exempted (see 21 CFR 101.75 (dietary saturated fat and cholesterol and CHD)), 21 CFR 101.77 (fruits, vegetables, and grain products containing fiber and CHD), § 101.81 (soluble fiber and CHD), 21 CFR 101.82 (soy protein and CHD), and 21 CFR 101.83 (plant sterol/stanol esters and CHD)). This final rule does not change the nutrient content requirements for “low saturated fat,” “low fat,”or “low cholesterol” found in these CHD-related health claims. The agency notes that the soy protein and CHD health claim also contains an exemption for the “low fat” requirement. Specifically, the soy protein and CHD health claim requires the food to meet the nutrient content requirement for “low fat” found in § 101.62 “unless it consists of or is derived from whole soybeans and contains no fat in addition to the fat inherently present in the whole soybeans it contains or from which it is derived” (§ 101.82(c)(2)(iii)(C)).

Contrary to what the comment infers, foods are not required to meet any soluble fiber requirements to bear a CHD-related health claim except in the specific case where fiber has been declared as the substance that is the subject of the claim (i.e., the fruits, vegetables, and grain products containing fiber and CHD-related health claim found at § 101.77 and the health claim discussed in this rule). Even in these cases, the fiber requirement is to meet certain fiber levels, not to keep the fiber (soluble or otherwise) “low.” The agency has determined in these CHD-related health claims that diets that are low in saturated fat and cholesterol and that include soluble fiber from certain foods may reduce the risk of CHD (see §§ 101.77(a) and 101.81(a) for explanations of the relationship between diets low in saturated fat and cholesterol that contain fiber). Therefore for these CHD-related health claims, the goal is to encourage the consumption of fiber-rich foods, and not to limit the amount of fiber in the food as the comment suggests.

(Comment 5) Two comments requested that FDA extend the exemption from the “low fat” requirement to other beta-glucan-containing food products, specifically whole grain barley, dry milled barley, and other barley products.

(Response) FDA is not now exempting other beta-glucan-containing food products from the “low fat” nutrient content requirement. As discussed in the proposed rule, it is possible that a product could exceed the maximum total fat permitted under the “low fat” requirement solely due to fat from whole oat sources. The total fat content of whole oat sources can be as high as 7.0 g per 100 g, whereas other cereal grain products are lower in fat. “Whole oats contain a higher amount of total fat than barley (2.3 g per 100 g) or other cereal grains such as whole wheat (1.9 g per 100 g whole wheat flour), rice (2.9 g per 100 g brown rice) or corn (1.2 g per 100 g dry corn grits)” (72 FR 5367 at 5369). As a result of these nutrient compositions, it is likely that additional cereal grain food products on the market consisting of other cereal grains (and not including other sources of fat) would already meet the “low fat” requirement for the soluble fiber claim and would not require any exemption to this requirement. The agency is aware, however, that advances in food technology (such as the reduction of sugar in oatmeal products) can lead to consequences unintended by the original health claim, and in those cases, the agency can be petitioned under section 403(r)(4) of the act to address the issue in rulemaking.

(Comment 6) Two comments requested that FDA eliminate the “low fat” requirement for this health claim based on the latest 2005 Dietary Guidelines for Americans science and dietary recommendations. The comments recommended that a “moderate” level of fat should be the requirement that foods eligible for the claim should have to meet. This change, the comments noted, could allow food products eligible to bear the claim to contain as much as 13 g total fat (the total fat disqualifying level). In support of their position, the comments pointed out that the 2005 Dietary Guidelines for Americans do not require that diets be low in fat.

(Response) FDA is not revising the rule as requested by the comment. Section 101.81(c)(2)(iii)(C) states that a food eligible to bear a soluble fiber and CHD health claim must meet the nutrient content requirements in § 101.62 for a “low saturated fat,” “low cholesterol,” and “low fat” food. “Low saturated fat,” “low cholesterol,” and “low fat” are nutrient content claims defined by regulation (§ 101.62). “Moderate fat” is not defined by regulation nor was defining this term foreshadowed in the proposal. However, any interested person can petition the agency to define and authorize a new nutrient content claim for “moderate fat” under section 403(r)(4) of the act.

(Comment 7) One comment requested that FDA exempt fat from fortificants (e.g., vitamin A palmitate) from the “low fat” requirement because the amount of fat from fortificants would likely be “inconsequential.”

(Response) FDA is not granting the requested exemption. The agency asked for comment in the proposed rule about whether to exempt whole oat products that contain sources of fat other than whole oat sources and, if so, how much and what type(s) of fat contributed by these sources would be acceptable. However, FDA did not receive, nor does it have, sufficient data regarding fortificants, such as vitamin A palmitate, to determine if whole oat foods that contain sources of fat from fortificants should be exempted from the “low fat” requirement.

Although FDA is not now revising the rule to include fat from fortificants as a source of fat eligible for the exemption from the “low fat” requirement, any interested person can petition the agency for such an exemption under section 403(r)(4) of the act.

(Comment 8) One comment requested that FDA confirm the nutrient composition values for total fat because the USDA National Nutrient Database has been updated since the proposal was published in February 2007.

(Response) The agency has confirmed that the values for fat composition of the grains cited in the proposed rule (i.e., about 6.9 g per 100 g for whole oats (same as whole oat flour), 6.3 g per 100 g for rolled oats, and 7.0 g per 100 g for oat bran) have remained unchanged in the newest release of the USDA National Nutrient Database for Standard Reference, Release 20 (Ref. 1).

(Comment 9) One comment suggested that FDA also provide exemptions to the per 50 g provision of the “low fat” requirement for foods with small serving sizes. The comment stated that products should not need to meet the “low fat” criteria on a per 50 g basis in addition to a per RACC and labeled serving size basis since products with small serving sizes (e.g., ready-to-eat cereals) would not be eligible for the health claim.

(Response) FDA advises that the exemption to the “low fat” requirement is not restricted by this final rule to food products with typical serving sizes. If a whole oat food product with a small serving size of 30 g or less or 2 tablespoons or less exceeds the “low fat” requirement on a 50 g basis due to fat derived solely from the whole oat source, it is exempted from the “low fat” requirement as well.

Given the information discussed in the preamble to the proposed rule and the absence of contrary information in the comments, FDA is adopting as a final rule, without change, the proposed amendment to § 101.81 to exempt certain foods from the nutrient content requirement of “low fat” if the food exceeds this requirement due to fat content derived from whole oat sources.

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

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this final rule allows new voluntary behavior and imposes no additional restrictions on current practices, the agency certifies that this final rule will not have a significant impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before finalizing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current (2006) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

Current 21 CFR 101.81 authorizes a health claim on foods for the relationship between soluble fiber from certain foods and reduced risk of CHD. One of the requirements for the claim is the nutrient content requirement for “low fat.” In order to bear the claim, foods must contain no more than 3 g of fat per RACC. The RACC for plain oatmeal is 40 g dry weight and the RACC for flavored, sweetened oatmeal is 55 g dry weight, assuming that 15 g of sugar is added. The amount of fat in 40 g of rolled oats is just below 3 g, mostly polyunsaturated fatty acids and monounsaturated fatty acids. A recently introduced flavored reduced-sugar oatmeal does not meet the criterion of 3 g or less of fat per 55 g dry weight. Because the amount of added sugar in this reduced-sugar oatmeal is less than 15 g, the proportional amount of fat, essentially all from whole oats, is slightly more than 3 g of fat per 55 g of the product compared to the sweetened oatmeal, even though the total amount of fat in both the sweetened and reduced-sugar oatmeal products is the same.

The ineligibility of reduced-sugar oatmeal for this health claim due to less added sugar is an unintended consequence of the regulation. The current regulation, without amendment, causes a distortion in the market, where products are essentially penalized for adding less sugar or filler. In certain instances where two products are identical at the package level, except for the amount of sugar added, only the product with more sugar is able to carry the CHD health claim because the product with less sugar has more oats per RACC and exceeds the “low fat” requirement. The final rule is needed to remove this unintended consequence.

The final rule amends the regulation authorizing a health claim on the relationship between soluble fiber from certain foods and risk of CHD. The amendment exempts certain foods from the nutrient content requirement of “low fat”. The exemption applies if the food exceeds this requirement due to fat content derived from certain oat sources.

In drafting this rule, FDA considered two regulatory alternatives in addition to the final rule. The agency considered the following alternatives: (1) No additional regulatory action and (2) general relaxation of the total fat requirement, while keeping in place restrictions on saturated fat and cholesterol. This final rule will not be an economically significant regulatory action. FDA is not quantitatively estimating the benefits and costs of the regulatory alternatives to the final rule. In what follows, FDA qualitatively compares the costs and benefits of the regulatory options to the costs and benefits of the final rule.

1. Option one . The first option considered is no action. As stated earlier, the current rule as it stands causes an unintended distortion in the market. Consumers have a higher than necessary search cost to find products that are both reduced in sugar and that have similar attributes of those currently carrying the CHD claim. Furthermore, taking no action stifles the innovation of new products that have all of the attributes of those with the CHD claim and that are reduced in sugar.

2. Option two . A second alternative to the final rule is a general relaxation of the total fat requirement from all fat sources for all products covered by the rule, while keeping in place restrictions on saturated fat and cholesterol. Relaxing the restriction for total fat from whole oat sources will not dampen the signal of the CHD claim (i.e. it will not reduce the clarity of the message that products bearing that claim in their labeling may reduce the risk of CHD), whereas a general relaxation of total fat from all fat sources in such products may have a deleterious effect in that the fat content may be excessive and increase the risk of CHD and negate the health benefits from the beta-glucan soluble fiber sources. The total fat content is about 6.9 g per 100 g for whole oats (same as whole oat flour) (Ref. 1), 6.3 g per 100 g for rolled oats (Ref. 1), 7.0 g per 100 g for oat bran (Ref. 1), and 2.1 g per 100 g for oatrim (Ref. 2). Whole oats contain a higher amount of total fat than barley (2.3 g per 100 g) or other cereal grains such as whole wheat (1.9 g per 100 g whole wheat flour), rice (2.9 g per 100 g brown rice) or corn (1.2 g per 100 g dry corn grits) (Ref. 1). However, most whole oat products that are essentially all whole oats meet the “low fat” requirement unless fat from other sources are added. For some products that do not meet the “low fat” requirement due to fat from whole oat sources, the amount of fat exceeding the “low fat” requirement may be small. For example, if a flavored sweetened oatmeal product were made almost entirely of whole oats, the total fat content of this product would not exceed 4 g per 55 g of RACC.

Further, whole oats contain 1.2 g saturated fatty acids, 2.2 g monounsaturated fatty acids, and 2.5 g polyunsaturated fatty acids per 100 g (Ref. 1), and thus, polyunsaturated and monounsaturated fatty acids are the predominant types of fat in whole oats. Whole oats do not contain cholesterol. The 2005 Dietary Guidelines for Americans (Ref. 3) recommends total fat intake be kept between 20 to 35 percent of calories, with most fats coming from sources of polyunsaturated and monounsaturated fatty acids, and less than 10 percent of calories from saturated fatty acids, and cholesterol intake be kept at less than 300 mg/day. Thus, the fat profile of whole oats is consistent with the 2005 Dietary Guidelines for Americans recommendation of a moderate amount of total fat with most sources coming from polyunsaturated and monounsaturated fatty acids, and limiting intake of saturated fatty acids and cholesterol. Relaxing the total fat requirement for fat from whole oats will not have a negative health effect, and will allow the CHD claim to retain clarity when directing consumers to products consistent with a diet that is low in saturated fat and cholesterol, and high in soluble fiber.

Relaxing the total fat requirement for fat from all fat sources in whole oat products may weaken the CHD claim signal that products bearing that claim in their labeling may reduce the risk of CHD. Under this scenario, products carrying the CHD claim could contain up to 13 g of fat per 55 g serving (i.e., the total fat disqualifying level for an individual food). The total fat disqualifying level is the level of total fat in a food above which the food will be disqualified from making a health claim (§ 101.14(a)(4)). Unlike whole oat sources, other products may have significantly more than the 3 g of fat per RACC that is the current total fat allowance for products carrying the CHD claim, and some may even approach the 13 g per RACC. Consumers using these products could easily increase their fat intake to levels above those recommended by the 2005 Dietary Guidelines for Americans (Ref. 3). Furthermore, under current regulation that only stipulates disqualifying levels for saturated fat, cholesterol, and total fat, some of the increased fat intake could include trans fat.

The potential health benefits would therefore be lower and the costs higher under this option than under the final rule.

This section details the costs and benefits of the final rule. The baseline in this case is the current rule, option one listed above, so the benefits of the final rule are derived from an increase in the number of products consumers have to choose from that carry the CHD claim. The costs of the final rule are the health effects associated with the potential net increase in fat intake and the new labeling costs if a manufacturer decides to voluntarily use the health claim. 2

Because much of the information required to assess whether a product will qualify for the CHD claim is not required on the Nutrition Facts label, FDA does not know with certainty how many products currently marketed will be affected by the final rule. 3 Furthermore, FDA cannot predict how many new products will be introduced because of the final rule.

In estimating the baseline number of products, FDA identified five products in the 2001 Food Label and Package Survey (FLAPS) (Ref. 4) that use the fiber related CHD claim. Of these products, three are hot cereals, one is a cold cereal, and one is wheat germ. Wheat germ products will not be affected by the final rule. Other types of products containing whole oats, such as cereal and snack bars, muffins, and cookies, will also not likely be affected by the final rule, as these products typically contain fat from sources other than whole oat sources, and would not be eligible to carry the CHD claim.

FLAPS is only a sample of all of the products available on the market. The five hot cereal products sampled made up 90 percent of all hot cereal sales in 2001. Therefore, it is possible that one or two products on the market that carry the CHD claim in 2001 were missed by the survey. The 6 cold cereals sampled made up only 18 percent of all cold cereal sales in 2001. Assuming the sample is representative implies that six or more products carrying the CHD claim were not included in the survey. Since 2001, new products carrying the claim may have entered the market and some products may have dropped out.

Through a search of the web and local grocery stores, FDA identified a single “lower sugar“ hot cereal product that does not currently qualify for the CHD claim, but might under the final rule. The company that produces this product also produces two other “lower sugar“ hot cereal products that qualify for the claim under the current rule. Beyond this single product, it is difficult to accurately predict how many products will be developed that would qualify for the claim under the final rule. Other “lower sugar” flavors might be developed. Furthermore, “no sugar added” products could be developed that could qualify for the CHD claim. Based on the current, limited information, FDA estimates that between one and ten current and future products will be affected by this final rule.

The principal benefits of the final rule are derived from an increase in the number of products consumers have to choose from that carry the CHD claim. Society benefits from the increased number of CHD claim products in two ways: (1) Increased consumer information and (2) a potential health benefit.

a. Increased consumer information . Consumers place a premium on products bearing a reduced CHD risk claim. That is, they value these products more than similar products not carrying the CHD claim. Part of this premium is due to a perceived health benefit. Part of it is also due to the fact that the CHD claim on the label, if consistent, 4 This is where you want the beginning of your text to appear instantly gives the consumer a lot of information about the product and therefore reduces search costs. The final rule, for example, will greatly increase the efficiency of a consumer's search for a product that is lower in sugar and also has all the qualities of a product carrying the CHD claim.

b. Potential health benefit . If consumers substitute the new CHD claim products for less healthy alternatives, the final rule will have a positive health effect. If a consumer is currently eating a product daily that is “lower in sugar” but happens to be relatively high in saturated fat and cholesterol, that consumer could potentially enjoy better health by switching to the new “lower in sugar” product that also carries the CHD claim. For example, some evidence suggests that the risk of CHD may be decreased by more than 2 percent for every 1 g of oat bran consumed daily (Ref. 5). Without data allowing a prediction of consumer response, FDA cannot quantify this effect. Because the number of new products is likely to be small and the total dietary intake of consumers across the population is not likely to change drastically due to substitution between breakfast cereals, the health benefit is expected to be small.

The principal costs of the final rule are the new labeling costs if a manufacturer decides to voluntarily use the health claim, and the possible negative health effect due to a potential increase in fat intake.

a. Labeling costs . Although voluntary labeling costs are necessarily less than the consumer premium placed on the products, it is useful to estimate the costs. Doing so gives a better idea of the costs generated and provides a lower bound to the total consumer utility gained from such products.

FDA used the 2004 Labeling Cost Model (Ref. 6) to calculate the potential new labeling costs produced by the final rule. The model calculates the cost of a new label based on the product type, label type, type of analytical and market tests necessary to develop the new label, compliance time, and inflation. Since the label is voluntary, firms can choose when to add the CHD label to their packaging and therefore can control the cost of the new label. If the firm chooses to immediately add the new label to the packaging, the full cost of redoing the label can be attributed to the CHD claim. Costs in this case will fall between $4,900 and $10,600 (mean = $6,800) per unique product. Firms typically update their label about every 3 years. If firms add the CHD claim when they would normally update their label, the cost of adding the new information on the package approaches zero.

New products that are developed because of the final rule will not incur new labeling costs due to the CHD claim label. They will simply work the claim into their initial label development. Since FDA only identified one current existing product that may qualify for the CHD claim because of the relaxation of the total fat requirement in the final rule, the one time new labeling costs are estimated to be between zero and $10,600.

b. Potential increase in fat intake . One other potential cost arises if total fat intake increases as a result of this claim. Total fat intake could either increase or decrease due to the final rule. Under the final rule, products carrying the CHD claim will on average contain more total fat than under the current rule. If there is no substitution between CHD claim products and other products, then the total intake of mostly polyunsaturated and monounsaturated fats would increase slightly in the population currently consuming CHD claim products. There is no evidence that a small increase in unsaturated fatty acids due to increased consumption of whole oat sources, even for a person eating multiple servings daily, would cause a negative health effect. In fact, a person with such a diet would still easily fall within the recommended fat intake (Ref. 3). If there is substitution between other products and CHD claims products (for example, between CHD claims cereal and other cereals that are higher in fat), it is possible that new CHD claims products might actually cause a decrease in total fat consumption.

Due to the small number of products likely to make the CHD claim in the future, the health effect is likely to be small, but because some substitution from higher fat products is likely to occur, the health effect of the final rule with respect to fat intake will probably be positive.

Benefits and costs of the final rule are likely to be small because few products will be affected. Voluntary labeling costs for those manufacturers who choose to use the health claim are small (less than a one-time cost of $11,000) and necessarily less than the consumer premium placed on the products. Furthermore, it is likely that, with more product choices available bearing the CHD claim, there will be a net shift towards these products carrying the claim and away from other products. Although the size of this shift cannot be estimated with available data, it would result in a public health benefit.

FDA has determined under 21 CFR 25.32(p) that this action is of the type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA concludes that labeling provisions of this rule are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Rather, the food labeling health claim on beta-glucan soluble fiber and CHD risk is a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public.” (see 5 CFR 1320.3(c)(2)).

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule will have a preemptive effect on State law. Section 4(a) of the Executive Order requires agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 403A of the act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a)(5) of the act provides that: “* * * no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce— * * * (5) any requirement respecting any claim of the type described in section 403(r)(1) made in the label or labeling of food that is not identical to the requirement of section 403(r). * * *”

This final rule amends existing food labeling regulations to provide an exemption for certain foods from the nutrient content requirement of “low fat.” Although this rule has a preemptive effect, in that it would preclude States from issuing any health claim labeling requirements for soluble fiber from certain foods and a reduced risk of CHD that are not identical to those required by this final rule, this preemptive effect is consistent with what Congress set forth in section 403A of the act. Section 403A(a)(5) of the act displaces both state legislative requirements and state common law duties. ( Riegel v. Medtronic , 128 S. Ct. 999 (2008)).

FDA believes that the preemptive effect of this final rule is consistent with Executive Order 13132. Section 4(e) of the Executive Order provides that “when an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” On February 5, 2007, FDA's Division of Federal and State Relations provided notice by fax and e-mail transmission to State health commissioners, State agriculture commissioners, food program directors, and drug program directors as well as FDA field personnel, of FDA's publication of the proposed amendment to the health claim regulation authorizing the health claim for soluble fiber from certain foods and CHD (§ 101.81).

In addition, the agency sought input from all stakeholders through publication of the proposed rule (72 FR 5367). FDA received no comments from any states on the proposed rulemaking.

In conclusion, the agency believes that it has complied with all of the applicable requirements under the Executive Order and has determined that the preemptive effects of this final rule are consistent with Executive Order 13132.

The following references have been placed on display in the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852 and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified all Web site addresses, but FDA is not responsible for any subsequent changes to the Web sites after this document publishes in the Federal Register .)

On January 26, 2006 (71 FR 4332), the Department of Defense published a proposed rule on user charges with a comment period ending May 11, 2006. Comments included updating sited directives, spelling out acronyms, and inserting punctuation. All relevant comments were accepted. However, the revision did not include a schedule of fees and rates because DoD Components were responsible for computing user fees. With the exclusion of the fee and rate schedule proposed rule 32 CFR Part 204 no longer had an impact on the public. Upon further review and discussions between White House Services and the Government Accountability Office, it was determined fees should be based on full cost or market price and the rule should specify the principles used to compute these values. The revision was completed in October 2007.

It has been determined that 32 CFR Part 204 is a significant regulatory action. The rule has an annual effect to the economy of over $100 million.

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year.

It has been certified that 32 CFR part 204 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule being promulgated provides guidelines to establish appropriate fees for authorized services supplied by Department of Defense organizations when such services provide special benefits to an identifiable recipient beyond those that accrue to the general public.

It has been certified that 32 CFR part 204 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

EPA is taking final action to approve revisions to the Alabama SIP, which includes changes to Alabama's NSR program. On June 16, 2006, the State of Alabama, through the Alabama Department of Environmental Management (ADEM) submitted revisions to the Alabama SIP. Specifically, the SIP revisions include changes to ADEM Administrative Code (AAC) Division 3 (Air Division), Chapter 14, entitled “Air Permits.” ADEM submitted these revisions in response to EPA's December 31, 2002, revisions to the federal NSR program. EPA is now approving these SIP revisions with the exception of the requirements found in Rule 335-3-14-.04(2)(w)1, the portion of the definition of “significant” that establishes a significance threshold of 100 tons for all NSR regulated pollutants for which there is not a listed significant amount. On December 3, 2007, Alabama requested this portion of the definition not be approved in to the SIP. Notably, the June 16, 2006, submittal also addressed the Clean Air Interstate Rule which EPA has already addressed in a separate action (October 1, 2007, 72 FR 55659).

On January 24, 2008 (73 FR 4133), EPA published a notice of proposed rulemaking (NPR) in the Federal Register , proposing to approve the Alabama SIP revisions regarding its NSR program. The January 24, 2008, NPR provides additional information about the proposed Alabama SIP revisions and the rationale for this final action. The public comment period for the proposed action ended on February 25, 2008. No comments were received on EPA's proposed action. EPA is now taking final action to approve the SIP revisions submitted by ADEM on June 16, 2006.

On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air Act (CAA), PSD and NNSR programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on its reconsideration of the 2002 rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the clean units and Pollution Control Project (PCP) provisions that were vacated by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) on June 24, 2005. The purpose of this action regarding the Alabama SIP is to approve the SIP submittal from the State of Alabama incorporating rule changes consistent with EPA's 2002 NSR Reform Rules.

The June 24, 2005, DC Circuit Court decision also involved a remand of the recordkeeping provisions of the 2002 NSR Reform Rules. On December 14, 2007, EPA issued a final rulemaking in response to the DC Circuit's remand establishing that “reasonable possibility” applies where source emissions equal or exceed 50% of the CAA NSR significance levels for any pollutant. The rule was published in the Federal Register on December 21, 2007 (72 FR 72607). For further information, see, http://www.epa.gov/nsr.

The “reasonable possibility” standard identifies, for sources and reviewing authorities, the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. Alabama's SIP revisions are approvable at this time because the Alabama rules are substantially the same as the current federal rules and EPA's interpretation of the reasonable possibility standard did not result in any actual changes to the corresponding federal rule.

As is discussed in greater detail in the NPR, EPA reviewed the SIP revisions and determined that they were at least as stringent as the federal NSR program. Therefore, Alabama's revisions are consistent with the federal NSR regulations published December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021), with the one exception noted earlier regarding AAC Rule 335-3-14-.04(2)(w)1 which is no longer a part of the current SIP submittal. As a result, the SIP revisions are approvable pursuant to the CAA.

The January 24, 2008, NPR and the docket for this action provide more details about the SIP revisions being approved and the rationale for EPA's final action. For additional information on EPA's 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

EPA is taking final action to approve changes to Alabama's Rule 335-3-14-.04, with the exception of 335-3-14.04(2)(w)1, as submitted by ADEM on June 16, 2006, as revisions to the Alabama SIP.

Under Executive Order 12866 ( 58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” ( 66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This final 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 ( 59 FR 22951, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 ( 64 FR 43255, August 10, 1999). This action merely approves state and local rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” ( 62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See, section 307(b)(2).)

This is a procedural action to extend the deadline for EPA to respond to a petition from Warrick County, Indiana and the Town of Newburgh, Indiana filed under CAA section 126. EPA received the section 126 petition on March 6, 2008. The petition requests that EPA make a finding that the Cash Creek power plant proposed to be built in Henderson County, Kentucky will emit air pollutants that will significantly contribute to Warrick County and Newburgh, Indiana's nonattainment with the NAAQS for ozone and fine particulate matter or will significantly interfere with Warrick County and Newburgh, Indiana's ability to maintain its attainment of those standards. The petition requests that EPA establish emission limitations for the proposed power plant as a result of those findings.

Section 126(b) authorizes States or political subdivisions to petition EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(D), by contributing significantly to nonattainment or maintenance problems in downwind states. If EPA makes such a finding, EPA is authorized to establish Federal emissions limits for the sources which so contribute.

Under section 126(b), EPA must make the finding requested in the petition, or must deny the petition, within 60 days of its receipt. Under section 126(c), any existing sources for which EPA makes the requested finding must cease operations within 3 months of the finding, except that those sources may continue to operate if they comply with emission limitations and compliance schedules that EPA may provide to bring about compliance with the applicable requirements.

Section 126(b) further provides that EPA must allow a public hearing for the petition. EPA(s action under section 126 is also subject to the procedural requirements of CAA section 307(d). See section 307(d)(1)(N). One of these requirements is notice-and-comment rulemaking, under section 307(d)(3).

In addition, section 307(d)(10) provides for a time extension, under certain circumstances, for rulemaking subject to section 307(d). Specifically, section 307(d)(10) provides:

In accordance with section 307(d)(10), EPA is determining that the 60-day period afforded by section 126(b) for responding to the petition from Warrick County, Indiana and the Town of Newburgh, Indiana is not adequate to allow the public and the Agency adequate opportunity to carry out the purposes of section 307(d). Specifically, the 60-day period is insufficient for EPA to develop an adequate proposal on whether the source identified in the section 126 petition will contribute significantly to nonattainment or maintenance problems in Warrick County or the Town of Newburgh, and, if so, to allow adequate time for public input into the promulgation of any controls to address those significant contributions.

EPA is in the process of determining what would be an appropriate schedule for action on the section 126 petition from Warrick County, Indiana and the Town of Newburgh, Indiana. This schedule must afford EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment and must provide adequate time for the public to comment prior to issuing the final rule.

As a result of this extension, the deadline for EPA to act on the petition is November 5, 2008.

This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that because of the limited time provided to make a determination that the deadline for action on the section 126 petition should be extended, Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice-and-comment would be impracticable because of the limited time provided for making this determination, and would be contrary to the public interest because it would divert Agency resources from the substantive review of the section 126 petition.

This action is effective on April 24, 2008. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the Federal Register if the agency has good cause to mandate an earlier effective date. This action—a deadline extension—must take effect immediately because its purpose is to extend by 6 months the deadline for action on the petition. It is important for this deadline extension action to be effective before the original 60-day period for action elapses. As discussed above, EPA intends to use the 6-month extension period to develop a proposal on the petition and provide time for public comment before issuing the final rule. These reasons support an immediate effective date.

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320(b). This action does not create new requirements and is not subject to the Paperwork Reduction Act.

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because although the rule is subject to the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b), therefore it is not subject to the notice-and-comment requirement.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, 2 U.S.C. 1532, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rules with “Federal mandates” that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This rule simply extends the deadline for EPA to take action on a petition.

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

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. It imposes no regulatory burdens. Thus, the requirements of section 6 of the Executive Order do not apply to this action.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications. This rule does not have tribal implications, as specified in Executive Order 13175. Thus Executive Order 13175 does not apply to this rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order had the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. This rule simply extends the deadline for EPA to take action on a petition and does not impose any regulatory requirements.

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

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) 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. NTTAA directs EPA to provide Congress through OMB, explanations when the Agency decides not to use available and applicably voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule simply extends the deadline for EPA to take action on a petition and does not impose any regulatory requirements.

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of April 24, 2008. 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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

Under CAA section 307(b)(1), a petition to review this action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days of May 1, 2008.

The Board's rules, regulations and standards are codified at 48 CFR chapter 99. The OFPP Act, 41 U.S.C. 422(g)(1), requires the Board, prior to the establishment of any new or revised Cost Accounting Standard, to complete a prescribed rulemaking process. The process generally consists of the following four steps:

1. Consult with interested persons concerning the advantages, disadvantages and improvements anticipated in the pricing and administration of government contracts as a result of the adoption of a proposed Standard ( e.g. , promulgation of a Staff Discussion Paper.)

2. Promulgate an Advance Notice of Proposed Rulemaking (ANPRM).

3. Promulgate a Notice of Proposed Rulemaking (NPRM).

4. Promulgate a Final Rule.

This final rule is issued by the Board in accordance with the requirements of 41 U.S.C. 422(g)(1), and, is step four of the four-step process.

The CAS and Federal Acquisition Regulation (FAR) have dealt with issues associated with ESOPs since ESOPs became popular in the late 1970s as a vehicle for providing incentive compensation to employees, as well as a means for corporations to finance their capital requirements. The popularity of ESOPs was greatly enhanced by their inclusion in the Employee Retirement Income Security Act of 1974 (ERISA) and by several beneficial changes to the Federal Income Tax Code in that same time period.

At first, the issues that arose were regarded as allowability matters that were to be treated in the FAR (or one of its predecessors, the Defense Acquisition Regulation or Armed Services Procurement Regulation). The views of the Board were sought primarily on an advisory basis. However, after issuance of the decision of the Armed Services Board of Contract Appeals (ASBCA) in the “Parsons case,” Ralph Parsons Co., ASBCA Nos. 37391, 37946, and 37947, December 20, 1990, 91-1 BCA 23648, reconsideration denied 91-2 BCA 23751, various government commenters suggested to the Board that ESOP cost measurement and period assignment matters warranted placement on the Board's agenda. These suggestions were amplified in light of the decision of the ASBCA in Ball Corp., ASBCA No. 49118, April 3, 2000, 00-1 BCA 30864. This position has been reiterated both by the Department of Defense and by some contractors.

The Board first considered issuing an Interpretation of its existing Standards, but then decided that additional research was needed. Various approaches for dealing with ESOP accounting issues were considered by the Board and other interested parties in the late 1990s. On September 15, 2000, the Board issued a Staff Discussion Paper (SDP) on this topic (65 FR 56008, Sept. 15, 2000). In response to the comments submitted on the SDP, on August 20, 2003 the Board issued an ANPRM (68 FR 50111) for the purpose of amending CAS 412 and 415 to address issues concerning the recognition of the costs of Employee Stock Ownership Plans (ESOPs) under Government cost-based contacts and subcontracts.

After considering the public comments submitted in response to the ANPRM, the Board published an NPRM on July 22, 2005 with request for comment (70 FR 42293). The Board received three sets of public comments in response to the NPRM. This final rule adopts the language in the NPRM, with minor changes to the transition provision. The final rule directs that costs of all ESOPs, regardless of type, be accounted for in accordance with CAS 415, and provides criteria in CAS 415 for measuring the costs of ESOPs and assigning those costs to cost accounting periods.

A summary of the comments received in response to the NPRM and the Board response are as follows:

Comment: Two commenters supported the issuance of the final rule. One commenter noted that the changes made to the NPRM in response to its comments on the ANRPM very effectively addressed its concerns. The second commenter noted that the NPRM indicated that the drafters diligently reviewed how ESOPs operated and reviewed carefully why Congress has consistently supported the creation of employer ownership through ESOPs for over thirty years. This commenter provided some recommendations for clarification and requested the Board move forward with the rulemaking process.

Response: The Board thanks the commenters for their responses.

Comment: One commenter opined that the proposed transition provisions at 9904.415-63 are overridden by 48 CFR 9904.412-20(b) and most existing ESOPs would not be subject to the revised rules.

Response: The Board recognizes the commenter's concern and has amended the transition provision in the final rule to specify that all ESOPs, including those considered to be pension ESOPs, are henceforth subject to CAS 415. When the transition provisions are read in conjunction with 412-20(b), the Board believes that following the receipt of a new CAS covered contract or subcontract all ESOPs shall be covered in CAS 415.

Comment: One commenter opined that the term “awarded” has no meaning in the context of a qualified ESOP plan and requires clarification.

Response: As stated previously in the NPRM (70 FR 42293, dated July 22, 2005), the Board's objective in amending CAS 412 and 415 is to provide consistent cost accounting practices for the measurement and assignment of costs of ESOPs, regardless of whether or not a particular ESOP is a qualified plan under ERISA and the IRS. Accordingly, the Board believes it need not limit itself to the terms and concepts embodied in ERISA or IRS rules and regulations in defining the cost accounting practices to be used in the measurement and assignment of costs of ESOPs. For the reasons stated in the NPRM (see responses to the ANPRM, which are contained in the NPRM and annotated as Comment 3, “Assignment of Costs Based on Award of Shares” and Comment 5, “Definition of an ESOP”), the Board continues to believe that it is appropriate to impose separate allocation and award criteria in order for an ESOP contribution to be measured and assigned to a particular cost accounting period. The Board also believes it has adequately distinguished between the concepts of allocation and award in both the techniques for application at 9904.415-50(f) and the illustrations at 9904.415-60, and that no further clarification is required.

Comment: One commenter opined that contractors should be required to separately identify the interest component of ESOP costs to promote transparency.

Response: The Board continues to believe that it is not necessary to impose a separate disclosure requirement regarding interest paid by the ESOP trust out of a contractor's ESOP contributions. The Board's reasoning, as provided in the NPRM (70 FR 42293, dated July 22, 2005), also applies here and is summarized, in relevant part, below.

The final rule recognizes the resources used by the contractor to fund the current year's award to employees, whether those shares are purchased by the ESOP in the year of award or made available for allocation by repayment of ESOP debt. In finalizing this rule, the Board believes that it is providing for the measurement of ESOP costs for contract costing purposes in a manner that reflects the CAS objective of consistency in cost accounting practices.

For financial accounting purposes, contractors are required to follow generally accepted accounting principles (GAAP). Under GAAP (specifically American Institute of Certified Public Accountants (AICPA) Statement of Position 93-6, paragraphs 6.24 thru 6.27, “Employer's Accounting for Employee Stock Ownership Plans”), companies are required to separately identify the interest and principal of the ESOP financing, and thus the transparency noted by the commenter already exists. Therefore, there is no need for the Board to promulgate a duplicate requirement. The Board further notes that whether interest or other cost components associated with financing a leveraged ESOP are allowable costs is determined under FAR Part 31. The final rule does not, in any manner, preclude the FAR Council from drafting rules that explicitly allow or disallow interest or any other cost component associated with an ESOP. Should the FAR Council decide to explicitly disallow interest or any other cost component associated with an ESOP, CAS 405 already requires that such costs be segregated in the contractor's accounting records. In addition, CAS 405 also requires that such costs be identified and excluded from any billing, claim, or proposal applicable to a Government contract. Therefore, the Board does not believe it is necessary to require separate disclosure of any interest paid by the ESOP trust out of a contractor's ESOP contribution.

Comment: One commenter opined that the following illustrations should be clarified:

a. The commenter recommended that 9904.415-60(f) should be revised to read as follows:

Contractor F has a non-leveraged ESOP. Under the contractor's plan, employees are awarded 5,000 shares of stock for the year ended December 31, 2007. The market value of the stock as of 12/31/07, as determined on 2/5/08 is $10.00 per share. On February 5, 2008, the 5,000 shares are contributed to the ESOP and allocated to the individual employee accounts.

Response: The Board does not believe a change to the illustration in the NPRM is warranted. The recommended revision would alter the content of the example and render it inconsistent with the language in the revised standard. The illustration in the NPRM is intended to demonstrate that the valuation date of the stock is the date the contribution is made in accordance with CAS 415-50(f)(1), not the date that employees are awarded the stock under the contractor's plan. As stated in the ANPRM, the Board believes that the “contribution” approach to ESOP cost accounting is the best measure of a contractor's cost to provide the ESOP benefit awarded to an employee. Therefore, the value of the shares transferred to an ESOP is established as of the contribution date (the date when the title to the shares is transferred to the trust), not the date when the shares are awarded to the employee. As such, the language in the NPRM remains unchanged.

b. The commenter recommended that 9904.415-60(g) should be revised to read as follows:

On February 15, 2008, the contractor contributes $780,000 in cash to the ESOP trust (ESOT) to satisfy the principal and interest payment on the ESOT loan for FY 2007. The contractor's contribution of $780,000 causes 9,000 shares of stock to be allocated in the true ESOP. One thousand (1,000) shares of stock are contributed to a true ESOP on 2/2/05, valued at $60,000 as of 12/31/07.

Response: The Board does not believe a change to the illustration in the NPRM is warranted. The introduction of the term “true ESOP” would be inappropriate since it is not defined or used in the standard, and the language of the standard clearly distinguishes between the ESOP and the ESOP trust (ESOT). Furthermore, the illustration makes an important distinction between shares released to the ESOT as a result of the cash payment by the contractor, the additional shares contributed to the ESOT, and the total shares actually allocated to individual employee accounts. Thus, the language in the NPRM remains unchanged.

c. The commenter recommended that 9904.415-60(h)(1) should be revised to read as follows:

Contractor H has a leveraged ESOP. Under the contractor's plan, employees are awarded 8,000 shares of stock for the year ended December 31, 2007. Only 8,000 shares of stock are allocated as of 12/31/07. $100,000 of the total payment of $500,000 made on 1/31/08 was for the FY '08, and 2,000 shares will be allocated as of 12/31/08.

Response: The Board does not believe a change to the illustration in the NPRM is warranted. The commenter's recommendation would revise the example to state that the 2,000 shares remaining in the ESOT and not awarded for 2007 will be awarded in 2008. The Board does not believe this should be added to the example because it may result in the reader incorrectly assuming that the remaining shares will always be awarded in the following year (in this case, 2008). This assumption cannot be made since there will not necessarily be an obligation to award these shares in 2008. Thus, the language in the NPRM remains unchanged.

d. The commenter recommended that 9904.415-60(h)(2) should be revised to read as follows:

At December 31, 2008, the employees are awarded 12,000 shares of stock. On January 31, 2009, Contractor H contributes $500,000 in cash to the ESOT to satisfy the principal and interest payment on the ESOT loan for 2008, resulting in the bank releasing 10,000 shares of stock. On February 10, 2009, 12,000 shares are allocated to individual employee accounts satisfying the deferred compensation obligation for 2008. If the contractor claims the contribution or an allowable cost, or claims a tax deduction, for 2007, then the shares released as a result of the contribution must be allocated for the year in which the contribution is allowed or claimed as a corporate tax deduction. In addition to the $500,000 contribution, which resulted in 10,000 shares being allocated as of 12/31/08, an additional 2,000 shares of stock were contributed to a true ESOP on 2/10/09, and allocated as of 12/31/08.

Response: The Board does not believe a change to the illustration in the NPRM is warranted. As stated in the NPRM (70 FR 42293, dated July 22, 2005), the cost accounting practices specified in CAS 415 are not dependent on tax deductibility of any contribution since two plans with identical contribution requirements should not have different cost accounting treatment solely because of differences in tax deductibility. Therefore, changing the illustration would result in inconsistency with the language in the revised standard, since such a change would base the assignment of ESOP costs for contract costing purposes on ERISA and/or IRS rules that have not been incorporated into the Standard. As such, the language in the NPRM remains unchanged.

e. The commenter recommended that 9904.415-60(i) should be revised to read as follows:

Contractor I has a leveraged ESOP. Under the contractor's plan, employees are awarded 10,000 shares for FY 2007, which ended December 31, 2007. On February 10, 2008, Contractor I contributes $700,000 in cash to satisfy the principal and interest payment for the ESOP loan for FY 2007. This contribution results in the bank releasing 10,000 shares of stock. On March 1, 2008, the ESOP allocates the 10,000 shares to individual employee accounts satisfying the 2007 obligation. The 10,000 shares of stock are allocated as of 12/31/07.

Response: The Board does not believe a change to the illustration in the NPRM is warranted. The recommended revision would eliminate the purpose of this illustration, which is intended to address instances where the shares are awarded on one date (in this example, December 31, 2007) but are not allocated to individual employee accounts until a later date (in this case, March 1, 2008). This example is intended to illustrate the assignment of ESOP contributions in accordance with 9904.415-50(f)(2) and the distinction between award and allocation. As such, the language in the NPRM remains unchanged.

The Paperwork Reduction Act, Public Law 96-511, does not apply to this rulemaking, because this rule imposes no paperwork burden on offerors, affected contractors and subcontractors, or members of the public which requires the approval of OMB under 44 U.S.C. 3501, et seq.

The Board certifies that this rule will not have a significant effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because small businesses are exempt from the application of the Cost Accounting Standards. For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Orders 12866 and 13132, the final rule will not significantly or uniquely affect small governments, and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more. The final rule is not a “major rule” under 5 U.S.C. Chapter 8; the rule will not have any of the effects set forth in 5 U.S.C. 804(2). Finally, the rule does not have federalism implications as described in Executive Order 13132.

Information about the bald eagle's life history can be found in our July 9, 2007 (72 FR 37346), final delisting rule for bald eagles in the lower 48 States.

Information about previous Federal actions was provided in our July 9, 2007 (72 FR 37346), final delisting rule for bald eagles in the lower 48 States.

On October 6, 2004, we received a petition, dated October 6, 2004, from the Center for Biological Diversity (CBD), the Maricopa Audubon Society, and the Arizona Audubon Council requesting that the “Southwestern desert nesting bald eagle population” be classified as a distinct population segment (DPS), that this DPS be reclassified from a threatened species to an endangered species, and that we concurrently designate critical habitat for the DPS under the Act.

On March 27, 2006, the CBD and the Maricopa Audubon Society filed a lawsuit against the U.S. Department of the Interior and the Service for failing to make a timely finding on the petition. The parties reached a settlement and the Service agreed to complete its petition finding by August 2006. We announced our 90-day finding, required under 16 U.S.C. 1533(b)(3)(A), on August 30, 2006 (71 FR 51549), that the petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted.

On January 5, 2007, the CBD and the Maricopa Audubon Society filed a lawsuit challenging the Service's 90-day finding that the “Sonoran Desert population” of the bald eagle did not qualify as a DPS, and further challenging the Service's 90-day finding that the population should not be up-listed to endangered status.

On July 9, 2007 (72 FR 37346), we published the final delisting rule for bald eagles in the lower 48 States. In that final delisting rule, we stated that our findings on the status of the Sonoran Desert population of bald eagles superseded our 90-day petition finding because the final delisting rule constituted a final decision on whether the Sonoran Desert population of bald eagles qualified for listing as a DPS under the Act.

On August 17, 2007, the CBD and the Maricopa Audubon Society filed a motion for summary judgment, requesting the court to make a decision on their January 5, 2007, lawsuit. On March 5, 2008, the U.S. District Court for the District of Arizona ruled in favor of the CBD and the Maricopa Audubon Society. The court order (Center for Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)), was filed on March 6, 2008.

The court ruled for the plaintiffs and found that the Service:

(1) Finding on the status of the Sonoran Desert population of bald eagles in our July 9, 2007 (72 FR 37346), final delisting rule did not moot the plaintiff's challenge to the August 30, 2006, negative 90-day petition finding;

(2) Applied an inappropriately strict evidentiary burden on the petition at the 90-day review stage and thus arbitrarily and capriciously concluded that the petition did not present substantial information that listing the “Desert bald eagle population” may be warranted; and

(3) Arbitrarily and capriciously conducted the 90-day review of the petition by soliciting information and opinions from a limited outside source.

The court provided the following remedies and ordered the Service to:

(1) Conduct a status review of the Desert bald eagle population pursuant to the Act to determine whether listing that population as a DPS is warranted, and if so, whether listing that DPS as threatened or endangered pursuant to the Act is warranted;

(2) Issue a 12-month finding, pursuant to 16 U.S.C. 1533(b)(3)(B), on whether listing the Desert bald eagle population as a DPS is warranted, and if so, whether listing that DPS as threatened or endangered is warranted; and

(3) Issue the 12-month finding within nine months of the court order, pursuant to 16 U.S.C. 1533(b)(3)(B), which translates to on or before December 5, 2008.

Further, the court enjoined the Service's application of the July 9, 2007 (72 FR 37346), final delisting rule to the Sonoran Desert population of bald eagles pending the outcome of our status review and 12-month petition finding. The “Desert bald eagle population” referenced in the court order consists of those bald eagles in the Sonoran Desert of the southwest that reside in central Arizona and northwestern Mexico. Because these Sonoran Desert bald eagles were only listed under the Act in Arizona (and not in Mexico) at the time of the petition, the court's order enjoining our final delisting decision applies only to those bald eagles found in the Sonoran Desert region of the American Southwest. In other words, the court's order temporarily reinstated the listing of the bald eagle as a threatened species, but only with respect to the eagles that reside in the Sonoran Desert of central Arizona. The court order was effective as of March 6, 2008, the date it was filed.

In order to determine the geographic area where the bald eagle would remain listed as threatened in Arizona, we examined the CBD's letter sent to us on March 5, 2005, clarifying their petitioned October 2004 Distinct Population Segment boundary. We used the information provided by the CBD because the court found that their October 2004 90-day petition “may be warranted” and, therefore, the petition represents the basis for determining the geographic extent of the area affected by this final rule.

The CBD cited two documents describing vegetation communities (Brown 1973, 1994) and an Arizona Game and Fish Department (AGFD) bald eagle nest search report (Canaca et al. 2004). The CBD notes in the petition that information is provided to support listing a “distinct population segment of Southwestern Desert Nesting Bald Eagle consistent with the geographical boundaries including the Sonoran Desert riparian areas of Central Arizona and northwestern Mexico.” With regards to the Arizona portion, the petition notes that this area in central Arizona exists between 329 and 1719 meters (1080 and 5640 feet) in elevation, falling within the Upper and Lower Sonoran Life Zones and transition areas as described by Brown 1994. We used the above three references and the specific elevation text to define the geographic boundary of the petitioned DPS.

Therefore, while we had specific clarification with respect to elevational boundaries, bald eagle breeding areas, the Upper and Lower Sonoran Life Zones, and the State of Arizona, we also received ambiguous direction with respect to the boundaries of “central Arizona” and which transition areas outside of the Upper and Lower Sonoran Life Zones to include. Because of these ambiguities and lack of a specific map in the petition, we were left to interpret their clarification, primarily at the perimeters of the boundary.

We used all the factors provided by the CBD (i.e., bald eagle territories, elevation, life zones, and transition areas) and established a boundary that included all known bald eagle breeding areas within central Arizona. The boundary was difficult to interpret on the ground due to irregular lines or gaps in elevation from layers of electronic geographical data. Therefore, we used more identifiable and easily understood boundaries of county lines and highways that were found at the outer edges of the erratic boundaries. It is important to note that known bald eagle breeding habitat of the Sonoran Desert, as described in the petition, is not contiguous between Arizona and northwestern Mexico. The somewhat disjointed nature of bald eagle breeding habitat and its well known distribution in Arizona is likely why the petitioners specified “central Arizona.” Thus, the counties in the southern half of Arizona were not included in this final rule because they do not possess known bald eagle breeding areas, known suitable habitat for breeding eagles, and fall outside of the petitioner's geographic description.

We determined that the affected area covers the following eight Arizona counties: (1) Yavapai, Gila, Graham, Pinal, and Maricopa Counties in their entirety; and (2) southern Mohave County (that portion south and east of the centerline of Interstate Highway 40 and east of Arizona Highway 95), eastern LaPaz County (that portion east of the centerline of U.S. and Arizona Highways 95), and northern Yuma County (that portion east of the centerline of U.S. Highway 95 and north of the centerline of Interstate Highway 8). All bald eagles found within this area are protected as a threatened species under the Act, with a special rule under our regulations at 50 CFR 17.41. Please refer to the following map for details of the geographic area affected by this action.

This rulemaking is necessary to comply with a March 6, 2008, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d), the agency has good cause to make this rule effective upon publication and require compliance retroactively to the date of the court order.

Any and all bald eagles, including migrants, found within the boundaries of the Sonoran Desert area of central Arizona, as delineated by the map included as part of this rule, are hereby listed as a threatened species under the Act, with a special rule found at 50 CFR 17.41.

The provisions of the special rule at 50 CFR 17.41 that we are adding here under the Act are the same as those in the prior special rule that was removed per our July 9, 2007 (72 FR 37346), final delisting rule removing the threatened status for bald eagles in the lower 48 States. This special rule now applies only to bald eagles in the Sonoran Desert area of central Arizona, the only such population of bald eagles so listed under the Act. Under this special rule, bald eagle banding and marking permits issued under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) and its implementing regulations at 50 CFR 21.22, and also under the Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668-668d) and its implementing regulations at 50 CFR part 22, will be deemed to also satisfy the requirements for a permit under the Act and its implementing regulations at 50 CFR 17.31 and 17.32. The BGEPA regulations at 50 CFR part 22 authorize permits for taking, possession, and transportation within the United States for scientific, educational, and depredation control purposes and for the religious purposes of American Indian tribes. This part also governs the transportation into or out of the United States of bald and golden eagle parts for scientific, educational, and Indian religious purposes. Under this special rule, it will not be necessary to obtain a separate permit under the Act for the same activities already authorized under the MBTA and BGEPA permits described above.

Although the petition also included Sonoran Desert bald eagles in northwestern Mexico, these bald eagles remain unlisted because bald eagles in this area were not previously listed pursuant to the Act and thus their status was unaffected by the court order limiting the effects of our July 9, 2007 (72 FR 37346), final delisting rule.

Consistent with the court's March 6, 2008 order, this rule will be in effect “pending the outcome of the status review and 12-month finding.” However, we will immediately remove the bald eagle in the Sonoran Desert area of central Arizona from the List of Endangered and Threatened Wildlife if the court's March 6, 2008, order is stayed or reversed in any subsequent judicial proceeding, or if, after completion of the status review, we publish a 12-month finding that listing the Sonoran Desert bald eagle is not warranted. No decision has been made as to whether the government will appeal that order.

We will publish a notice requesting public input for the status review required under the March 6, 2008, court order in the Federal Register in the near future. This status review will consider the population of bald eagles as described in the October 6, 2004, petition and any other relevant information received during the public comment period and will be based upon the best scientific and commercial data available, pursuant to the Act.

Under this final rule, the prohibitions and conservation measures provided by the Act, particularly sections 7, 9, and 10, apply to bald eagles in the Sonoran Desert area of central Arizona. Federal agencies are required under the court order and this final rule to consult with us under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect listed bald eagles.

In addition to the conservation measures provided by the Act, the Conservation Assessment and Strategy for Bald Eagles in Arizona (CAS) (Driscoll et al. 2006) contains guidance on measures to eliminate, reduce, or minimize effects to eagles in Arizona. On January 22, 2007, the Service signed a Memorandum of Understanding with the AGFD supporting the implementation of the AGFD's CAS. The Memorandum of Understanding was also signed by the following Federal agencies: Bureau of Reclamation, Bureau of Land Management, National Park Service, Forest Service, and the Department of Defense, including the U.S. Army Corps of Engineers. The CAS provides additional valuable guidance for protecting bald eagles in Arizona, and we support using it in conjunction with our Bald Eagle National Management Guidelines to protect bald eagles in Arizona.

All bald eagles, of course, will continue to be protected under the BGEPA and MBTA. We recommend that persons use our Bald Eagle National Management Guidelines (Guidelines), announced in the Federal Register on June 5, 2007 (72 FR 31156), as guidance for minimizing the risk of violating the protections afforded to all bald eagles under these various Acts and their respective implementing regulations. The Guidelines include suggestions for protecting bald eagles and their habitat while they are nesting, feeding, and roosting. While eagles originating in the Sonoran Desert area of central Arizona would not be protected by the Act if they traveled to other parts of the United States, they would still be afforded the protections under the BGEPA and MBTA.

This rule will not affect the bald eagle's status under State laws or suspend any other legal protections provided by State law. This rule will not affect the bald eagle's Appendix II status under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES).

Additionally, pursuant to section 6 of the Act, we are able to grant available funds to the State of Arizona for management actions promoting the protection of bald eagles in the Sonoran Desert area of central Arizona.

We have determined that we do not need to prepare an Environmental Assessment, as defined in the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to consult with Federally recognized Tribes on a government-to-government basis. Accordingly, we will promptly consult with the affected Tribes regarding the effects of the court's March 6, 2008, order and this final rule. We will also consult with the affected tribes as we conduct our new status review concerning the Sonoran Desert nesting bald eagle population.

This Federal Register document is also accessible at the web site of the Office of the Federal Register: http://www.gpoaccess.gov/fr/index.html .

On October 5, 2007, NMFS published a final rule implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP) (72 FR 57104). That final rule contained collection-of-information requirements that were submitted to, but not yet approved by, the Office of Management and Budget. Because OMB had not yet approved the collection-of-information requirements by the publication date of that final rule, NMFS noted in that final rule that it would publish a subsequent Federal Register notice upon OMB's issuance of a control number.

On December 7, 2007, OMB approved the collection-of-information requirements contained in the October 5, 2007 final rule. NMFS announces that the collection-of-information requirements are approved under Control Number 0648-0364, with an expiration date of February 28, 2009.

Background

The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the Federal Register .

These management measures for the 2008 and pre-May 2009 ocean salmon fisheries were recommended by the Pacific Fishery Management Council (Council) at its April 7 to 11, 2008, meeting.

The Council announced its annual preseason management process for the 2008 ocean salmon fisheries in the Federal Register on January 2, 2008 (73 FR 169), and on their Web site at ( http://www.pcouncil.org ). This notice announced the availability of Council documents as well as the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures. The agendas for the March and April Council meetings were published in the Federal Register prior to the actual meetings.

In accordance with the Salmon FMP, the Council's Salmon Technical Team (STT) and staff economist prepared a series of reports for the Council, its advisors, and the public. The first of the reports was prepared in February when the scientific information necessary for crafting management measures for the 2008 and pre-May 2009 ocean salmon fishery first became available. The first report, “Review of 2007 Ocean Salmon Fisheries”, summarizes biological and socio-economic data for the 2007 ocean salmon fisheries and assesses how well the Council's 2007 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis for 2008 Ocean Salmon Fisheries” (PRE I), provides the 2008 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2007 regulations and regulatory procedures were applied to the projected 2008 stock abundances. The completion of PRE I is the initial step in evaluating the full suite of preseason options.

The Council met in Sacramento, CA from March 10 to 14, 2008, to develop 2008 management options for proposal to the public. The Council proposed three options for commercial and recreational fisheries management for analysis and public comment. These options consisted of various combinations of management measures designed to protect weak stocks of coho and Chinook salmon and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Analysis of Proposed Regulatory Options for 2008 Ocean Salmon Fisheries,” which analyzes the effects of the proposed 2008 management options. This report was made available to the Council, its advisors, and the public.

Public hearings, sponsored by the Council, to receive testimony on the proposed options were held on March 31, 2008, in Westport, WA and Coos Bay, OR; and April 1, 2008, in Eureka, CA. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office.

The Council met from April 7 to 11, 2008, in Seatac, WA, to adopt its final 2008 recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2008 Ocean Salmon Fisheries,” which analyzes the environmental and socio-economic effects of the Council's final recommendations. This report was also made available to the Council, its advisors, and the public. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter and also posted them on the Council Web site ( http://www.pcouncil.org ).

At the start of the preseason planning process for the 2008 management season, NMFS provided a letter to the Council, dated February 26, 2008, summarizing its Endangered Species Act (ESA) consultation standards for listed species as required by the Salmon FMP. The Council's recommended management measures comply with NMFS ESA consultation standards and guidance for those listed salmon species which may be affected by Council fisheries. In most cases, the recommended measures are more restrictive than NMFS's ESA requirements.

NMFS provided guidance to the Council and a new biological opinion regarding the effects of the 2008 fisheries on Lower Columbia River (LCR) coho and LCR Chinook salmon. This will be the third year that NMFS has consulted on LCR coho. Since the listing of LCR coho in August 2005, the states of Oregon and Washington have been working with NMFS to develop and evaluate a management plan for LCR coho that can be used as the basis for their long-term management. The states have focused on use of a harvest matrix similar to the one used for Oregon Coast coho. Under the matrix the harvest allowed in a given year depends on indicators of marine survival and brood year escapement. Generally speaking, NMFS supports use of management planning tools that allow harvest rates to vary depending on the year-specific circumstances. Although there has been progress in the development and review of the matrix, there is still work to be done before NMFS can reasonably conclude that the proposed harvest matrix provides the necessary long-term protection for the species.

In the meantime, NMFS needed to provide guidance for the 2008 fisheries. In 2008, brood year and marine survival indicators were generally lower than they were in 2007. Given the circumstances the matrix would have allowed for a total exploitation rate of 11.7 percent. However, uncertainties related to selection of a particular long-term management strategy are such that it is still prudent to take a conservative approach to management until those questions can be resolved. Based on the above described circumstances, NMFS guidance to the Council was that ocean salmon fisheries, and fisheries in the mainstem Columbia River be managed subject to a total exploitation rate limit on LCR coho of 8 percent. As a consequence of this guidance the Council proposed to limit Council area fisheries to an exploitation rate of 6 percent recognizing that this provided for some fishing opportunity in the Columbia River. The resulting coho quota for the area north of Cape Falcon in 2008 is 44,350 compared to quotas of 178,000, 117,500 and 195,000 in the last three years.

NMFS reinitiated consultation on an earlier biological opinion related to the effects on LCR Chinook. From 2002-2006 Council fisheries were managed subject to a total exploitation rate limit of 49 percent for the “tule” component of the listed evolutionarily significant unit (ESU). Since then, NMFS has been engaged in ongoing review of LCR tule Chinook in particular. In 2007, the exploitation rate limit has been reduced to 42%. In 2008, the allowable exploitation rate limit was reduced further to 41%. The reduction in exploitation rate is intended to address the needs of the ESU and the weaker populations in the ESU. NMFS intends to continue its review of harvest and seeks to implement changes that are consistent with the evolving information, the expected evolution of the hatchery programs, and the long term goal of recovery articulated in the Lower Columbia Salmon Recovery Plan. NMFS expects that further reductions in the harvest on naturally-spawning fish may be required. Based on the guidance provided, the Council proposed to limit Council fisheries such that the total exploitation rate from all fisheries was 35.8 percent and thus well below the limit. The Chinook catch quota for the area north of Cape Falcon in 2008 is 77,500, compared to quotas of 67,500, 107,000 and 135,000 in the last three years. Because fisheries are so restricted this year NMFS ESA requirements for all other listed salmonids including Snake River fall Chinook, Puget Sound Chinook, and California Coastal Chinook will be met.

The Council's final recommendation for the ocean salmon fishing seasons that commence May 1st deviates from the Salmon FMP specifically with regard to meeting the Sacramento River fall Chinook (SRFC) conservation objective of 122,000-180,000 natural and hatchery adult spawners. Under the circumstances, implementation of an Emergency Action under Magnuson-Stevens Act authority at section 305(c)(2)(B) is necessary to modify the conservation objective in the Salmon FMP in order to implement the Council's proposal. The Temporary Rule for Emergency Action applies to the area between Cape Falcon, Oregon, and the Oregon/California border.

The conservation objective for SRFC in the Salmon FMP requires a return of 122,000-180,000 natural and hatchery adult spawners each year. The preseason forecast for SRFC for 2008 is at a record low, with a projected escapement of 59,100 hatchery and natural fish absent any further fishing south of Cape Falcon, OR. Under the Salmon FMP, a “conservation alert” is triggered when a stock is projected to fall below its conservation objective. Under such circumstances the Council is required to close salmon fisheries within Council jurisdiction that impact the stock.

Because of differences in stock composition and in how salmon fisheries are managed, the Council splits its management decisions geographically into North of Cape Falcon, OR (managed mostly by quotas), and South of Cape Falcon (managed mostly by seasons and trip limits). Cape Falcon is near the Columbia River in Oregon. Because annual management measures must meet the Salmon FMP conservation objectives of all the key stocks, fishing seasons are usually limited by the necessity of meeting the requirements for the least abundant stock. South of Cape Falcon, the dramatically low abundance of Sacramento River fall Chinook was the primary constraint for fisheries in Oregon and California.

When defining the area of impact NMFS considers the distribution of the stock, the magnitude of harvest impacts at the margin of that distribution and the relation of that distribution to existing fishery management boundaries. In 2006, when Klamath River fall Chinook were projected to be below their conservation objective, the area of impact was determined to be from Cape Falcon, Oregon, to Point Sur, California. This was designated as the impact area based on estimates indicating that the vast majority of harvest impacts, in this case 99%, occurred in the area. In 2008, there is a similar conservation concern for Sacramento River fall Chinook. Using the same rationale for SRFC, the area of impact that would be closed pursuant to the Salmon FMP would include the area from Cape Falcon, Oregon, to the U.S./Mexico Border where the vast majority of harvest impacts on SRFC occur. In this case, NMFS estimated that 99% of harvest mortality occurs in the area South of Cape Falcon, Oregon. Given the circumstances, any fishing in the impact area would have to be implemented through an emergency rule that modifies the Salmon FMP.

The process for setting this year's management measures was controversial given the proposed reductions in fishing opportunities and potential extensive closures. At both the March and April Council meetings, and the coastwide public hearings, there was substantial public participation and comments from the various fishing sectors and related industries regarding the proposed 2008 management measures. The majority of the comments expressed great concern that elimination of the ocean fisheries that impact SRFC, which typically comprises the majority of the catch in California and Oregon, would cause severe economic hardship to coastal communities in California and Oregon. Those testifying also spoke at length regarding concerns for the demise of the infrastructure that supports the fishing industry, as well as other related businesses, and thus the long-term consequences of a fishery closure or severe restrictions in 2008. The Council, in order to address the conservation concerns for SRFC, recommended closing the commercial salmon fishery South of Cape Falcon Oregon. They also recommended no recreational fishery off California. In order to protect SRFC and mitigate to some extent the adverse economic and social consequences of this year's restricted fishing season the Council recommended an emergency rule to implement only a small recreational fishery for hatchery marked coho in Oregon with a 9,000 fish quota, from Cape Falcon, OR, to the California/Oregon border from June 22 through August 31, 2008.

For NMFS, the key issue in considering whether to approve the emergency rule was whether the proposed fishery would jeopardize the capacity of the fishery to produce maximum sustainable yield (MSY) on a continuing basis. NMFS used available information provided by the Council's advisory bodies to assess the potential risk to SRFC. The method developed by the STT for modeling impacts to SRFC was reviewed favorably by the Council's Scientific and Statistical Committee. Using this model, the projected mortality of SRFC is 55 fish. Furthermore, not all of these fish would be expected to return to the Sacramento River this year. Some of the fish would not mature and would remain in the ocean in 2008. Others would be expected to die of natural causes. The estimate of escapement absent fishing is 59,100; the proposed fishery would reduce the escapement by a few tens of fish. Given the magnitude of the fishery and the available information on anticipated impacts to SRFC, NMFS concluded that the marginal decrease in escapement that will result from the limited fishery in the SRFC impact area proposed for 2008 does not jeopardize the capacity of the stock to produce MSY on a continuing basis. NMFS further concluded that the limited fishery in the SRFC impact area does not increase the conservation concerns for SRFC while mitigating, to the degree possible, some adverse effects to the fishing community. The vote of the Council reflects their concurrence with NMFS' conclusion. The Temporary Rule for Emergency Action to approve the 2008 annual management measures for the west coast ocean salmon fisheries would cover the area from Cape Falcon, Oregon, to the Oregon/California Border where the limited recreational marked hatchery coho fishery will occur.

The Council-recommended ocean harvest levels and management measures for 2008 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations responsive to the goals of the Salmon FMP, the requirements of the resource, and the socio-economic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. Accordingly, NMFS has adopted them.

North of Cape Falcon the 2008 management measures have a higher Chinook quota and a substantially lower coho quota relative to the 2008 season. The total allowable catch for 2008 is 77,500 Chinook and 44,350 marked hatchery coho; these fisheries are restricted to protect threatened Columbia River wild fall Chinook, threatened Lower Columbia natural coho, threatened Oregon Coastal Natural coho, and Hood Canal natural coho. Washington coastal and Puget Sound Chinook generally migrate to the far north and are not greatly affected by ocean harvests from Cape Falcon, OR, to the U.S.-Canada border. Nevertheless, ocean fisheries in combination with fisheries inside Puget Sound were restricted in order to meet ESA related conservation objectives for Puget Sound Chinook. North of Cape Alava, WA, the Council recommends a provision prohibiting retention of chum salmon during August and September to protect ESA listed Hood Canal summer chum. The Council has recommended such a prohibition for the last seven years.

South of Cape Falcon, OR, the commercial salmon fishery is closed in 2008 because of the projected failure of the Sacramento River Fall Chinook to reach their conservation objective, even with no fishing on the stock. For the same reason, the only recreational fishery that will occur South of Cape Falcon is a small selective fishery off Oregon with a 9,000-fish quota of marked hatchery coho. This is the fifth year the selective fishery includes the southern coastal area of Oregon. The Council's recommendations are below the 8-percent exploitation rate permitted under ESA limitations for Oregon Coast Natural (OCN) coho stocks, with an expected 6.9-percent OCN coho exploitation rate. The expected ocean exploitation rate for Rogue/Klamath coho is 1.0 percent, and is also below its exploitation rate limit of 13.0 percent.

The treaty-Indian commercial troll fishery quota is 37,500 Chinook in ocean management areas and Washington State Statistical Area 4B combined. This quota is slightly higher than the 35,000-Chinook quota in 2007. The fisheries include a Chinook-directed fishery in May and June (under a quota of 20,000 Chinook) and an all-salmon season beginning July 1 with a 17,500 Chinook sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B for the July-September period is 20,000 coho, a decrease from the 38,500-coho quota in 2007.

The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, the 2009 fishing seasons opening earlier than May 1 are also established in this action. The Council recommended, and NMFS concurs, that the commercial season off Oregon from Cape Falcon to Humbug Mountain, from Humbug Mountain to the Oregon/California border and the recreational season off Oregon from Cape Falcon to the Oregon/California border will open in 2009 as indicated in the Season Description section. At the March 2009 meeting, the Council may consider inseason recommendations to adjust the commercial season prior to May 1 in the areas off Oregon.

The following sections set out the management regime for the salmon fishery. Open seasons and days are described in sections 1, 2, and 3 of the 2008 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the Federal Register as soon as practicable.

The following are the management measures recommended by the Council and approved and implemented here for 2008 and, as specified, for 2009.

May 3 through earlier of June 30 or 11,700 Chinook quota. Saturday through Tuesday with a landing and possession limit of 50 Chinook per vessel for each open period north of Leadbetter Point or 50 Chinook south of Leadbetter Point (c.1). All salmon except coho (c.7). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (c.5). See gear restrictions and definitions (c.2, C.3). Oregon State regulations require that fishers south of Cape Falcon, OR intending to fish within this area notify the Oregon Department of Fish and Wildlife (ODFW) before transiting the Cape Falcon, OR line (45°46′00″ N. lat.) at the following number: 541-867-0300 Ext. 271. Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing or in possession of salmon while fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Oregon State regulations require that all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (c.8).

July 1 through earlier of September 16 or 8,300 preseason Chinook guideline (c.8) or a 4,000-marked coho quota (C.8.d). Open July 1-2, then Saturday through Tuesday thereafter. Landing and possession limit of 35 Chinook and 25 coho per vessel per open period north of Leadbetter Point or 35 Chinook and 25 coho south of Leadbetter Point (c.1). All Salmon except no chum retention north of Cape Alava, Washington in August and September (c.7). All coho must have a healed adipose fin clip (C.8.d). Gear restricted to plugs six inches (15.24 cm) or longer. See gear restrictions and definitions (c.2, C.3). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (c.5). Oregon State regulations require that fishers south of Cape Falcon, OR intending to fish within this area notify Oregon Department of Fish and Wildlife before transiting the Cape Falcon, OR line (45°46′00″ N. lat.) at the following number: 541-867-0300 Ext. 271. Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing or in possession of salmon while fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Oregon State regulations require that all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (c.8).

Closed in 2008. In 2009, the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its March 2009 meeting.

Closed in 2008. In 2009, the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its March 2009 meeting.

All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open. Salmon may be landed in an area that has been closed more than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may be landed in an area that has been closed less than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the areas in which they were caught and landed.

States may require fish landing/receiving tickets to be kept on board the vessel for 90 days after landing to account for all previous salmon landings.

a. Single point, single shank, barbless hooks are required in all fisheries.

b. Cape Falcon, Oregon, to the OR/CA border: No more than 4 spreads are allowed per line.

c. OR/CA border to U.S./Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling.

Trolling defined: Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

Troll fishing gear defined: One or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area (FMA) off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.

Spread defined: A single leader connected to an individual lure or bait.

Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

It is unlawful for a vessel to have troll or recreational gear in the water while transiting any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species, and no salmon are in possession.

a. Cape Flattery Control Zone—The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava (48°10′00″ N. lat.) and east of 125°05′00″ W. long.

b. Mandatory Yelloweye Rockfish Conservation Area—The area in Washington Marine Catch Area 3 from 48°00.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°16.50′ W. long. to 48°00.00′ N. lat.; 125°16.50′ W. long. and connecting back to 48°00.00′ N. lat.; 125°14.00′ W. long.

c. Columbia Control Zone—An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.), and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

d. Bandon High Spot Control Zone—The area west of a line between 43°07′00″ N. lat.; 124°37′00″ W. long. and 42°40′30″ N. lat; 124° 52′0″ W. long. extending to the western edge of the exclusive economic zone (EEZ).

e. Klamath Control Zone—The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and on the south, by 41°26′48″ N. lat. (approximately six nautical miles south of the Klamath River mouth).

If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board, and the estimated time of arrival.

During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and Washington Department of Fish and Wildlife (WDFW) will monitor landings. If the landings are projected to exceed the 37,707 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery.

Beginning May 1, license holders may land no more than one Pacific halibut per each two Chinook, except one Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per open period. Pacific halibut retained must be no less than 32 inches in total length (with head on).

A “C-shaped” yelloweye rockfish conservation area (YRCA) is an area to be voluntarily avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), with the following coordinates in the order listed:

In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS:

a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline on a fishery impact equivalent basis.

b. NMFS may transfer fish between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the areas' representatives on the Salmon Advisory Subpanel (SAS).

c. At the March 2009 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2008).

d. If retention of unmarked coho is permitted in the area from the U.S./Canada border to Cape Falcon, Oregon, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded.

a. The State of Oregon may establish additional late-season fisheries in state waters. Check state regulations for details.

b. The State of California may establish limited fisheries in selected state waters.

June 1 through earlier of June 28 or a quota of 8,200 Chinook (c.5). Tuesday through Saturday north of the Queets River (Neah Bay and La Push Subareas) and Sunday through Thursday south of the Queets River (Westport subarea). Chinook only, one fish per day. Chinook 24-inch (60.96 cm) total length minimum size limit (B). See gear restrictions (c.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (c.5).

June 1 through earlier of June 28 or a subarea guideline of 5,300 Chinook (c.5). Seven days per week. Chinook only, one fish per day. Chinook 24-inch (60.96 cm) total length minimum size limit (B). See gear restrictions (c.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (c.5).

July 1 through earlier of September 13 or 2,060 marked coho subarea quota with a subarea guideline of 950 Chinook (c.5). Tuesday through Saturday. All salmon two fish per day, no more than one of which can be a Chinook and no chum retention August 1 through Sept. 13. Chinook 24-inch total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions (c.2). Closed east of a true north-south line running through Sail Rock in July. Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.a) during Council managed ocean fishery. Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

July 1 through earlier of September 13 or 540 marked coho subarea quota with a subarea guideline of 350 Chinook (C5). September 20 through earlier of October 5 or 50 marked coho quota or 100 Chinook quota (C5): In the area north of 47°50′00″ N. lat. and south of 48°00′00″ N. lat. (C.6). Tuesday through Saturday through September 13. All salmon, two fish per day, no more than one of which can be a Chinook. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

June 29 through earlier of September 13 or 7,520 marked coho subarea quota with a subarea guideline of 5,100 Chinook (C.5). Sunday through Thursday. All salmon, two fish per day, no more than one of which can be a Chinook. Chinook 24-inch total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions and definitions (C.2, C.3). Grays Harbor Control Zone closed beginning August 1 (C.4.b). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

June 29 through earlier of September 30 or 10,180 marked coho subarea quota with any remainder of the 5,300 Chinook subarea guideline from the June Chinook directed fishery (C.5). Sunday through Thursday. All salmon, two fish per day, no more than one of which can be a Chinook. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4.c). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

June 22 through earlier of August 31 or a landed catch of 9,000 marked coho (C.6). Seven days per week. All salmon except Chinook, two fish per day (C.1). All retained coho must be marked with a healed adipose fin clip. Fishing in the Stonewall Bank groundfish conservation area restricted to trolling only on days the all depth recreational halibut fishery is open (see 70 FR 20304, June 24, 2005, and call the halibut fishing hotline 1-800-662-9825 for additional dates) (C.3, C.4.d). Open days may be adjusted inseason to utilize the available quota (C.5).

In 2009, the season between Cape Falcon and Humbug Mt. will open March 15 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches (60.96 cm) total length (B).

Closed.

All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

Ocean Boat Limits: Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of salmon for all licensed and juvenile anglers aboard has been attained (additional state restrictions may apply).

All persons fishing for salmon, and all persons fishing from a boat with salmon on board, must meet the gear restrictions listed below for specific areas or seasons.

a. U.S./Canada Border to Point Conception, California: No more than one rod may be used per angler; and no more than two single point, single shank barbless hooks are required for all fishing gear. [Note: ODFW regulations in the state-water fishery off Tillamook Bay may allow the use of barbed hooks to be consistent with inside regulations.]

b. Cape Falcon, Oregon, to Point Conception, California: Anglers must use no more than two single point, single shank, barbless hooks.

c. Horse Mt., California, to Point Conception, California: Single point, single shank, barbless circle hooks (below) are required when fishing with bait by any means other than trolling, and no more than two such hooks shall be used. When angling with two hooks, the distance between the hooks must not exceed five inches when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.

a. Recreational fishing gear defined: Angling tackle consisting of a line with no more than one artificial lure or natural bait attached. Off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. Off California, the line must be attached to a rod and reel held by hand or closely attended. Weights directly attached to a line may not exceed four pounds (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon, and no person fishing from a boat with salmon on board, may use more than one rod and line. Fishing includes any activity which can reasonably be expected to result in the catching, taking, or harvesting of fish.

b. Trolling defined: Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

c. Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

a. The Bonilla-Tatoosh Line: A line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°28′00″ N. lat., 124°45′00″ W. long.), then in a straight line to Bonilla Point (48°35′30″ N. lat., 124°43′00″ W. long.) on Vancouver Island, British Columbia.

b. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°36′00″ N. lat., 124°10′51″ W. long.).

c. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long. and then along the north jetty to the point of intersection with the Buoy #10 line; and on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

d. Stonewall Bank Groundfish Conservation Area: The area defined by the following coordinates in the order listed:

e. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles south of the Klamath River mouth).

Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided by NMFS:

a. Actions could include modifications to bag limits, or days open to fishing, and extensions or reductions in areas open to fishing.

b. Coho may be transferred inseason among recreational subareas north of Cape Falcon on an impact neutral basis to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council's SAS recreational representatives north of Cape Falcon.

c. Chinook and coho may be transferred between the recreational and commercial fisheries north of Cape Falcon on an impact neutral basis if there is agreement among the representatives of the Salmon Advisory Subpanel (SAS).

d. If retention of unmarked coho is permitted in the area from the U.S./Canada border to Cape Falcon, Oregon, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded.

Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Oregon State-water fisheries are limited to Chinook salmon. Check state regulations for details.

May 1 through the earlier of June 30 or 20,000 Chinook quota. All salmon except coho. If the Chinook quota for the May-June fishery is not fully utilized, the excess fish cannot be transferred into the later all-salmon season. If the Chinook quota is exceeded, the excess will be deducted from the later all-salmon season. See size limit (B) and other restrictions (C).

July 1 through the earlier of September 15, or 17,500 preseason Chinook quota, or 20,000 coho quota.

All Salmon. See size limit (B) and other restrictions (C).

All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.

a. Single point, single shank, barbless hooks are required in all fisheries.

b. No more than eight fixed lines per boat.

c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.)

a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15.

b. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of September 15 through October 15 in the same manner as in 2004, 2005, 2006, and 2007. Fish taken during this fishery are to be counted against treaty troll quotas established for the 2008 season (estimated harvest during the October ceremonial and subsistence fishery: 100 Chinook; 200 coho).

a. The area within a six nautical mile radius of the mouths of the Queets River (47°31′42″ N. lat.) and the Hoh River (47°45′12″ N. lat.) will be closed to commercial fishing.

b. A closure within two nautical miles of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.

Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery which appear at 50 CFR part 300, subpart E. On March 7, 2008, NMFS published a final rule (73 FR 12280) to implement the International Pacific Halibut Commission's (IPHC) recommendations, to announce fishery regulations for U.S. waters off Alaska and fishery regulations for treaty commercial and ceremonial and subsistence fisheries, some regulations for non-treaty commercial fisheries for U.S. waters off the West Coast, and approval of and implementation of the Area 2A Pacific halibut Catch Sharing Plan and the Area 2A management measures for 2008. The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.

The following measures have been approved by the IPHC, and implemented by NMFS. During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and WDFW will monitor landings. If the landings are projected to exceed the 37,707 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery.

Beginning May 1, license holders may land no more than one Pacific halibut per each two Chinook, except one Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per open period. Pacific halibut retained must be no less than 32 inches in total length (with head on).

NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” YRCA (North Coast Recreational YRCA) in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (WA marine area 3)(See section 1.C.7. for the coordinates).

Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured.

Geographical landmarks referenced in this document are at the following locations:

Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the Federal Register as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing.

This rule is necessary for conservation and management and is consistent with the Magnuson-Stevens Act.

The emergency rule temporarily modifying the conservation objective for Sacramento River fall Chinook is consistent with the agency's policy on use of emergency actions under the Magnuson-Stevens Act published at 62 FR 44422 (Thursday, August 21, 1997). The emergency, in this case, is a consequence of a predicted run size that is less than the lower end of the 122,000-180,000 spawner escapement range. The run size forecast was not available until February of 2008 and was thus unforeseen. These emergency circumstances present serious conservation and management problems. The emergency regulations provide the opportunity to address the conservation problem consistent with the requirement to manage, on a continuing basis, for maximum sustained yield, and still provide some limited harvest opportunity. Without use of emergency regulations, the Pacific Coast Salmon Fishery Management Plan (Salmon FMP) would require closure of all salmon fishing south of Cape Falcon, Oregon, causing severe social and economic hardship in the coastal communities. The limited mark-selective recreational coho fishery off Oregon that will require the emergency regulations to implement will result in a marginal decrease in the SRFC escapement while alleviating some adverse effects to the fishing community.

This notification of annual management measures is exempt from review under Executive Order 12866.

The Assistant Administrator has determined that the measures described in the preamble that deviate from the framework FMP and its implementing regulations are necessary to respond to an emergency situation and are consistent with the Magnuson-Stevens Act and other applicable law. The measures falling under emergency authority of section 305(C) of the Magnuson-Stevens Act (emergency rule) involve an ocean impact of approximately 55 Sacramento River fall Chinook in the SRFC impact area to allow a mark-selective recreational fishery for hatchery coho to proceed off of Oregon. Because SRFC are not projected to meet the conservation objective established in the FMP, it is necessary to amend those portions of the framework FMP and its implementing regulations by emergency action pursuant to 16 U.S.C. 1855(C).

The provisions of 50 CFR 660.411 state that if, for good cause, an action must be filed without affording a prior opportunity for public comment, the measures will become effective; however, public comments on the action will be received for a period of 15 days after the date of publication in the Federal Register . NMFS will receive public comments on this action until May 16, 2008. These regulations are being promulgated under the authority of 16 U.S.C. 1855(C) and (d).

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures are impracticable and contrary to the public interest.

The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small portion of the annual catch. The time-frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures depends on when the pertinent biological data are available. Salmon stocks are managed to meet annual spawning escapement goals or specific exploitation rates. Achieving either of these objectives requires designing management measures that are appropriate for the ocean abundance predicted for that year. These pre-season abundance forecasts, which are derived from the previous year's observed spawning escapement, vary substantially from year to year, and are not available until January and February because spawning escapement continues through the fall.

The preseason planning and public review process associated with developing Council recommendations is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. This complex process includes the affected user groups, as well as the general public. The process is compressed into a 2-month period which culminates at the April Council meeting at which the Council adopts a recommendation that is forwarded to NMFS for review, approval and implementation of fishing regulations effective on May 1.

Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would require 30 to 60 days in addition to the two-month period required for development of the regulations. Delaying implementation of annual fishing regulations, which are based on the current stock abundance projections, for an additional 60 days, would require that fishing regulations for May and June be set in the previous year, without knowledge of current stock status. Although this is currently done for fisheries opening prior to May, relatively little harvest occurs during that period (e.g. in 2006 less than 10 percent of commercial and recreational harvest occurred prior to May 1). Allowing the much more substantial harvest levels normally associated with the May and June seasons to be regulated in a similar way would impair NMFS ability to protect weak stocks and Endangered Species Act (ESA) listed stocks, and provide harvest opportunity where appropriate. For example, 58,000 Chinook were caught off California during May and June of 2007. If fishing were allowed in 2008 under last year's regulations a similar number of Chinook could be caught. Under the recommended 2008 regulations, this May and June fisheries will be closed. Conversely, north of Cape Falcon the recreational fishing was closed in May and June of 2007. Under the recommended 2008 regulations, the recreational fishery is open in June with a quota of 13,500. Managing fisheries in May and June of 2008 under 2007 regulations would limit harvest opportunity that could otherwise be available. The choice of May 1 as the beginning of the regulatory season balances the need to gather and analyze the data needed to meet the management objectives of the Salmon FMP and the requirements to provide adequate public notice and comment on the regulations implemented by NMFS.

Overall, the annual population dynamics of the various salmon stocks require managers to vary the season structure of the various West Coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action. Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable and contrary to the public interest to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B).

The AA also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data are not available until February and management measures not finalized until early April. These measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. If these measures are not in place on May 1, the previous year's management measures will continue to apply. Failure to implement these measures immediately could compromise the status of certain stocks, including Sacramento River fall Chinook, and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action.

To enhance notification of the fishing industry of these new measures, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and is also posting the regulations on both of its West Coast regional Web sites ( http://www.nwr.noaa.gov and http://swr.nmfs.noaa.gov ). NMFS is also advising the States of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems.

This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by the Office of Management and Budget (OMB) under control number 0648-0433. The public reporting burden for providing notifications if landing area restrictions cannot be met, or to obtain shelter in Brookings, OR, is estimated to average 15 minutes per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to David_Rostker@omb.eop.gov , or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

NMFS has current ESA biological opinions that cover fishing under these regulations on all listed salmon species, except Lower Columbia River (LCR) coho and LCR Chinook. NMFS reiterated their ESA related consultation standards in their annual Guidance letter to the Council dated February 26, 2008. Some of NMFS's past biological opinions have found no jeopardy, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid jeopardy. The management measures for 2008 are consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions. NMFS also consulted this year on the effects of the 2008 annual regulations on LCR coho and LCR Chinook. NMFS concluded that the proposed 2008 fisheries are not likely to jeopardize the continued existence of LCR coho and LCR Chinook. The Council's recommended management measures therefore comply with NMFS's consultation standards and guidance for all listed salmon species which may be affected by Council fisheries. In most cases, the recommended measures result in impacts that are more restrictive than NMFS's ESA requirements.

Southern resident killer whales were listed as endangered effective February 16, 2006. NMFS consulted on the effects of the 2006 and 2007 fisheries on killer whales and concluded that the fisheries were not likely to jeopardize the continued existence of the species. NMFS is again consulting regarding the effects on the 2008 fisheries on killer whales through a separate biological opinion. NMFS expects to complete the consultation prior to May 1, 2008. While the consultation may not be completed prior to approval of this action, NMFS has determined that the anticipated fisheries will not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event that the review suggests that further constraints in the 2008 fisheries are necessary, appropriate corrections can be made by NMFS through inseason action.

This final rule was developed after meaningful consultation and collaboration with the affected tribes. The tribal representative on the Council made the motion for the regulations that apply to the tribal vessels.