On December 11, 2006 (71 FR 71463), Certificate of Compliance 1030 was added to the list of approved spent fuel storage casks. The December 11, 2006, document contained an incorrect Certificate Expiration Date. This document corrects that date.

On November 23, 2004, following an extensive rulemaking process, the Commission adopted new regulations to ensure that organizations that participate in Federal elections conduct their activities in compliance with Federal law. This rulemaking generated an extraordinary amount of public engagement on the issue of when organizations should have to register with and report their activities to the FEC. The Commission received and considered over 100,000 written comments, including comments from approximately 150 Members of Congress, many political party organizations, hundreds of non-profit organizations, as well as academics, trade associations, and labor organizations. Additionally, the Commission heard testimony from 31 witnesses during two days of public hearings on April 14 and 15, 2004. 1

At the end of this process, the Commission amended its regulations in two significant ways. First, the Commission adopted a regulation codifying when an organization's solicitations generate “contributions” under FECA, and consequently, may require an organization to register as a political committee with the FEC. Second, the Commission substantially revised its allocation regulations to require that voter drives and campaign ads that target Federal elections, as well as a substantial portion of a political committee's administrative costs, be paid for with funds subject to Federal limits, prohibitions, and reporting requirements. See Final Rules on Political Committee Status, Definition of Contribution, and Allocation for Separate Segregated Funds and Nonconnected Committees, 69 FR 68056, 68056-63 (Nov. 23, 2004) ( “2004 Final Rules” ); see also 11 CFR 100.57 and 106.6. The 2004 Final Rules also explained the Commission's decision not to re-define the terms “political committee” in 11 CFR 100.5 and “expenditure” in 11 CFR 100.110 through 100.154, including the Commission's decision not to establish a separate political committee definition singling out 527 organizations. 2 See 2004 Final Rules , 69 FR at 68063-65. The 2004 Final Rules took effect January 1, 2005. Id. at 68056.

In 2004, an action was brought before the U.S. District Court of the District of Columbia challenging the Commission's decision not to revise the regulatory definition of “political committee.” See Shays II , 424 F. Supp. 2d at 114-17. 3 Plaintiffs sought a court order directing the Commission to promulgate a rule specifically addressing the political committee status of all 527 organizations. Id. at 116. The district court rejected the plaintiffs' request to order the Commission to commence a new rulemaking, concluding that nothing in FECA, Congress's most-recent amendments in the Bipartisan Campaign Reform Act of 2002 (“BCRA”), 4 or the Supreme Court's decision in McConnell v. FEC , 540 U.S. 93 (2003), required the Commission to adopt such rules. Shays II , 424 F. Supp. 2d at 108. Case law, the Shays II court explained, demonstrates “that a statutory mandate is a crucial component to a finding that an agency's reliance on adjudication [is] arbitrary and capricious.” Id . at 114. The district court found, however, that the Commission “failed to present a reasoned explanation for its decision” not to regulate 527 organizations specifically by virtue of their status under the Internal Revenue Code, and remanded the case to the Commission “to explain its decision or institute a new rulemaking.” Id . at 116-17.

The Commission did not appeal the district court's ruling. Instead, the Commission is issuing this supplemental Explanation and Justification to explain its decision not to use tax law classifications as a substitute for making determinations of political committee status under FECA, as construed by the courts. By adopting a new regulation under which any organization may be required to register as a political committee and by tightening the rules governing how political committees fund activity for the purpose of influencing Federal elections, the Commission has acted to prevent circumvention not by just 527 organizations, but by groups of all kinds. As further explained, the Commission's decision not to single out 527 organizations is entirely consistent with the statutory scheme, Supreme Court precedent, and Congressional action regarding 527 organizations. Political committee status, whether articulated in FECA, Supreme Court interpretations of FECA, or the Commission's regulations, must be applied and enforced by the Commission through a case-by-case analysis of a specific organization's conduct. Existing regulations, bolstered by the adoption of the 2004 Final Rules, leave the Commission with a very effective mechanism for addressing claims that organizations of any tax status should be registered as political committees under FECA. The Commission's recent enforcement experience confirms this conclusion.

Parts A and D of this document explain the framework for establishing political committee status under FECA, as interpreted by the Supreme Court. Parts B and C explain why reliance on a group's tax exempt status under section 527 of the Internal Revenue Code cannot substitute for an analysis of the group's conduct. Part E discusses the new and amended rules the Commission adopted in 2004, which codified an additional trigger for political committee status and increased the Federal funding requirements to participate in certain election-related activities. Finally, Part F describes the significance of several recently resolved enforcement matters that illustrate the sufficiency of the legal basis for the Commission's political committee status determinations.

Since its enactment in 1971, FECA has placed strict limits and source prohibitions on the contributions received by organizations that are defined as political committees. Under the Act, an organization's conduct has always been the basis for determining whether it is required to register and abide by the Act's requirements as a political committee. Likewise, since its enactment in 1971, the determination of political committee status has taken place on a case-by-case basis. FECA defines a “political committee” as “any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year.” See 2 U.S.C. 431(4)(A). FECA further defines the terms “contribution” and “expenditure,” limiting these terms to those receipts and disbursements made “for the purpose of influencing any election for Federal office.” 2 U.S.C. 431(8) and (9). Commission regulations first promulgated in 1975 essentially repeat FECA's definition of “political committee.” 11 CFR 100.5(a). 5

Congress has not materially amended the definition of “political committee” since the enactment of section 431(4)(A) in 1971, nor has Congress at any time since required the Commission to adopt or amend its regulations in this area. Indeed, in 2002, when Congress made sweeping changes in campaign finance law pursuant to BCRA, it left the definition of “political committee” undisturbed and political committee status to be determined on a case-by-case basis.

To address constitutional concerns raised when FECA was adopted, the Supreme Court added two additional requirements that affect the statutory definition of political committee. First, the Supreme Court held, when applied to communications made independently of a candidate or a candidate's committee, the term “expenditure” includes only “expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” Buckley v. Valeo , 424 U.S. 1, 44, 80 (1976). 6 Second, the Supreme Court mandated that an additional hurdle was necessary to avoid Constitutional vagueness concerns; only organizations whose “major purpose” is the nomination or election of a Federal candidate can be considered “political committees” under the Act. Id. at 79. The court deemed this necessary to avoid the regulation of activity “encompassing both issue discussion and advocacy of a political result.” See, e.g. , Buckley , 424 U.S. at 79; FEC v. Massachusetts Citizens for Life, Inc. , 479 U.S. 238, 262 (1986) ( “MCFL” ).

Neither BCRA, McConnell , nor any other legislative, regulatory, or judicial action has eliminated (1) The Supreme Court's express advocacy requirement for expenditures on communications made independently of a candidate or (2) the Court's major purpose test. In its 2003 McConnell decision, the Supreme Court implicitly endorsed the major purpose framework to uphold BCRA's regulation of political party activity against vagueness concerns. See McConnell , 540 U.S. at 170 n.64 (“This is particularly the case here, since actions taken by political parties are presumed to be in connection with election campaigns. See Buckley , 424 U.S. at 79, 96 S. Ct. 612 (noting that a general requirement that political committees disclose their expenditures raised no vagueness problems because the term ‘political committee' ‘need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate * * *’)”).

McConnell also addressed the Buckley expenditure framework, finding, “the express advocacy limitation, in both the expenditure and disclosure contexts, was the product of statutory interpretation rather than a constitutional command.” McConnell , 540 U.S. at 191-92. However, the Court made it clear that FECA continued to contain the express advocacy limitation as to expenditures on communications made independently of a candidate, because Congress, in enacting BCRA, modified the limitation only insofar as it applied to “electioneering communications.” The Court found:

Congress did not amend the definition of expenditure in BCRA, and in fact, specified that “electioneering communications” are not expenditures under the Act. 2 U.S.C. 434(f)(1) and (2) (treating electioneering communications as “disbursements”). Accordingly, while BCRA, as interpreted by McConnell , did not extend Buckley's express advocacy limitation to the regulation of “electioneering communications,” it also did not alter that limitation as to expenditures on communications made independently of a candidate. Absent future Congressional action altering the definition of “expenditure,” the Supreme Court's limitation of expenditures, on communications made independently of a candidate, to “express advocacy” continues to apply.

Therefore, determining political committee status under FECA, as modified by the Supreme Court, requires an analysis of both an organization's specific conduct—whether it received $1,000 in contributions or made $1,000 in expenditures—as well as its overall conduct—whether its major purpose is Federal campaign activity ( i.e. , the nomination or election of a Federal candidate). Neither FECA, its subsequent amendments, nor any judicial decision interpreting either, has substituted tax status as an acceptable proxy for this conduct-based determination.

The Commission has promulgated regulations defining in detail what constitutes a “contribution” and an “expenditure.” See 11 CFR 100.51 to 100.94 and 100.110 to 100.155. Many administrative actions, including the recently resolved actions against several 527 organizations that are described in Part F below, include substantial investigations and case-by-case analyses and determinations of whether a group's fundraising generated “contributions” and whether payments for its communications made independently of a candidate constituted “expenditures,” as alternative prerequisites to a determination that a group is a political committee, prior to any consideration of the group's major purpose. Additional regulations defining “contribution” and “expenditure” would not obviate the need for a case-by-case investigation and determination in a Commission enforcement proceeding. Neither would a regulation defining “major purpose” that singled out 527 organizations, as the Shays II plaintiffs seek, obviate the need for case-by-case investigations and determinations in the Commission's enforcement process regarding the organization's major purpose.

527 organizations are so named for section 527 of the Internal Revenue Code, a section that exempts certain activities from taxation. An organization's election of section 527 tax status is not sufficient evidence in itself that the organization satisfies FECA and the Supreme Court's contribution, expenditure, and major purpose requirements. As stated by a commenter, “All that 527 status means is that the organization is exempt from federal income tax to the extent it spends political income on political activities * * * All federal political committees registered with the FEC are 527 organizations. So are the Republican National Committee and the Democratic National Committee. So are John Kerry for President, Inc. and Bush-Cheney '04, Inc. So is every candidate's campaign committee right down to school board and dogcatcher.” Thus, virtually all political committees are 527 organizations. It does not necessarily follow that all 527 organizations are or should be registered as political committees.

The IRS's requirements for an organization to be entitled to the tax exemption under section 527 are based on a different and broader set of criteria than the Commission's determination of political committee status. See note 2 above. Section 527 exempts political organizations from tax on “exempt function” income, where the Internal Revenue Code would impose tax on such activity when conducted by other non-profit organizations, such as groups organized under section 501(c)(4) (social welfare organizations), 501(c)(5) (labor organizations), and 501(c)(6) (business leagues). See 26 U.S.C. 527(c)(1) and (f)(1). Accordingly, the definition of “exempt function” is central to the reach of section 527. “Exempt function” is defined as the “function of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public office or office in a political organization, or the election of Presidential or Vice-Presidential electors.” 26 U.S.C. 527(e)(2).

By definition, 527 organizations may engage in a host of State, local, and non-electoral activity well outside the Commission's jurisdiction. As noted by several commenters, the broad range of groups availing themselves of the 527 exemption include, but are not limited to the following: All Federal, State, and local candidate campaign committees and party entities; Federal, State, and local political action committees; caucuses and associations of State or local public officials; newsletter funds operated by Federal, State, and local public officials; funds set up to pay ordinary business expenses of a public officeholder; political party officer committees; and groups seeking to influence the appointment of judicial and executive branch officials. A forthcoming tax law article states:

The IRS has specifically determined that exempt function activity can include disbursements for Federal electoral activity that does not constitute express advocacy. IRS Revenue Ruling 2004-6 states (at 4): “[w]hen an advocacy communication explicitly advocates the election or defeat of an individual to public office, the expenditure clearly is for an exempt function under [section] 527(e)(2). However, when an advocacy communication relating to a public policy issue does not explicitly advocate the election or defeat of a candidate, all the facts and circumstances need to be considered to determine whether the expenditure is for an exempt function under [section] 527(e)(2).” Rev. Rul. 04-6, 2004-1 C.B. 328. Accordingly, the IRS structure presumes section 527 organizations will engage in non-express advocacy activities. Indeed, organizations could easily qualify for 527 status without ever making expenditures for express advocacy. However, as discussed above, that activity is outside of the Commission's regulatory scope under Buckley's express advocacy limitation for expenditures on communications made independently of a candidate. See Buckley , 424 U.S. at 44; see also 2 U.S.C. 431(8) and (9) (defining contribution and expenditure as “for the purpose of influencing any election for Federal office”).

The IRS “facts and circumstances” test, if applied to FECA, clearly would violate the Supreme Court's Constitutional parameters, established in Buckley , and reiterated in MCFL and McConnell , that campaign finance rules must avoid vagueness. See Buckley , 424 U.S. at 40-41; MCFL, 479 U.S. at 248-49; McConnell , 540 U.S. at 103. Because the tax code definitions arise in the context of a grant of exemption, which is viewed as a form of subsidy to the organization, a lower level of scrutiny is applied than when the government regulates or prohibits outright certain types of speech. See, e.g., Regan v. Taxation With Representation , 461 U.S. 540, 549-50 (1983) (upholding limitation on lobbying by 501(c)(3) organizations); Christian Echoes Nat'l Ministry, Inc. v. United States , 470 F.2d 849, 857 (10th Cir. 1972) (upholding 501(c)(3) ban on campaign intervention). As one commenter noted:

As stated by a commenter, “While IRC political organizations and FECA political committees seem to have some similarities, [section] 527 ‘exempt function' activity is much broader than the activity that defines FECA political committees. Consequently, IRS regulations provide no guidance for FEC rulemaking.” In fact, neither FECA, as amended, nor any judicial decision interpreting it, has substituted tax status for the conduct-based determination required for political committee status.

As discussed further below in Part F, the Commission's enforcement experience illustrates the inadequacy of tax classification as a measure of political committee status. The Commission recently completed six matters, including five organizations that were alleged to have failed to register as political committees. 7 The Commission reached conciliation agreements with five of these organizations—four 527 organizations and one 501(c)(4) organization—in which the organizations did not contest the Commission's determination that they had violated FECA by failing to register as political committees. See Matters Under Review (“MURs”) 5511 and 5525 (Swiftboat Veterans and POWs for Truth (“Swiftboat Vets”)); 5753 (League of Conservation Voters 527 and 527 II (“League of Conservation Voters”)); 5754 (MoveOn.org Voter Fund); 5492 (Freedom, Inc.). In the sixth matter, the Commission determined that a 527 organization was not a political committee under the statutory requirements, and dismissed the matter. See MUR 5751 (The Leadership Forum). The Commission has demonstrated through the finding of political committee status for a 501(c)(4) organization and the dismissal of a complaint against a 527 organization, that tax status did not establish whether an organization was required to register with the FEC. Rather, the Commission's findings were based on a detailed examination of each organization's contributions, expenditures, and major purpose, as required by FECA and the Supreme Court.

Courts have cautioned the Commission against assuming “the compatibility of the IRS's enforcement * * * and FECA's requirements.” See Shays v. FEC , 337 F. Supp. 2d 28, 128 (D.D.C. 2004) ( “Shays I” ). The Commission is instead obligated to perform a detailed review of differences in tax and campaign finance law provisions rather than adopting the former as a proxy for the latter. Id. The U.S. District Court recently reminded the Commission: “It is the FEC, not the IRS, that is charged with enforcing FECA.” Shays I , 337 F. Supp. 2d at 126. The detailed comparison of the Internal Revenue Code and FECA provisions required by Shays I demonstrates that the “exempt function” standard of section 527 is not co-extensive with the “expenditure” and “contribution” definitions that trigger political committee status. Therefore, the use of the Internal Revenue Code classification to interpret and implement FECA is inappropriate.

While Congress has repeatedly enacted legislation governing 527 organizations, it has specifically rejected every effort, including those by some of the Shays II plaintiffs, 8 to classify organizations as political committees based on section 527 status. In refusing to enact such legislation, Congress fully recognized that some 527 organizations not registered with the Commission were, and would continue to be, involved with Federal elections. Nevertheless, in each instance in which Congress regulated 527 organizations, whether through amendments to the Internal Revenue Code or FECA, it (a) Chose not to address the political committee status of these organizations, (b) left the reporting obligations in the hands of the IRS, and (c) did not direct the Commission to adopt revised regulations.

In 2000, Congress passed a bill requiring section 527 organizations that are not required to register as political committees under FECA to register and report their financial activity with the IRS. See 26 U.S.C. 527(i)(6), (j)(5)(A); Public Law 106-230 (2000). Congress ordered the IRS to disclose this information publicly on a searchable database within 48 hours of receipt, requirements matching the FEC's disclosure obligations. See 26 U.S.C. 527(k); 2 U.S.C. 434(a)(11)(B) and 438a. 9 At the same time, Congress considered, but rejected, alternative bills that would have explicitly required the Commission to regulate all 527 organizations. See, e.g. , H.R. 3688, 106th Cong. (2000); S. 2582, 106th Cong. (2000); see also H.R. Rep. No. 106-702 (2000). The alternative House bill was co-sponsored by two of the Shays II plaintiffs. Additionally, Congress took no other action to otherwise alter the statutory framework for determining political committee status.

In 2002, Congress modified the section 527 reporting requirements to exempt organizations that were exclusively involved in State and local elections from having to report with the IRS. See 26 U.S.C. 527(i)(5)(C), (j)(5)(C); Income Tax Notification and Return Requirements—Political Committees Act, Public Law 107-276, 116 Stat. 1929 (2002). Those 527 organizations that were involved in Federal elections, but that did not qualify as “political committees” under FECA, continued to have to report their activities to the IRS. See Public Law 107-276. This legislation was passed only a few months after BCRA, which, as discussed below, did not change the requirements for political committee status of 527 organizations. As stated by a commenter, “Congress explicitly recognized the differences in intent and scope between the Internal Revenue Code and the Federal Election Campaign Act when it drafted two separate statutes to address the respective subjects; if Congress had intended the two bodies of law to be congruous, Congress would have passed congruous provisions at the outset.” If, as some commenters suggested, all 527 organizations not exclusively involved in State and local elections are required by FECA to register as political committees, then the 2002 amendments to 26 U.S.C. 527 would have meant that no 527 organizations would continue to report to the IRS. Such an interpretation of the two statutes would effectively nullify the statutory requirement to report to the IRS.

These two provisions were passed, as noted by a commenter, “[a]gainst a widely publicized backdrop of news reports concerning non-federal [section] 527 groups,” yet, “Congress required these organizations * * * to register and report with the IRS * * * Congress was well aware that [section] 527 organizations that were not political committees could affect Federal as well as other elections.” The legislative history of the 2000 amendment confirms the commenter's assessment:

A rule hinging on section 527 tax status could frustrate this separate reporting scheme created by Congress in the 2000 and 2002 amendments to section 527. It could also have the effect of reducing disclosure. If a rule singled out 527 organizations, those entities could then either shift the same election-related conduct to a related section 501(c)(4) organization that shares common management, or perhaps even reorganize as a section 501(c)(4) organization in order to avoid a rule that singled out 527 organizations. 10 Several commenters predicted that 527 organizations would do so. Because section 501(c)(4) of the Internal Revenue Code requires almost no disclosure of receipts and disbursements, migration of political conduct to section 501(c)(4) groups would reduce the amount of information disclosed to the public. 11

In BCRA, Congress directly addressed the Federal activity of unregistered 527 organizations, but again, declined to take any other action to regulate 527 organizations as political committees or otherwise alter the existing political committee framework. BCRA prohibits national, State and local political parties from soliciting for, or donating to “an organization described in section 527 of [the Internal Revenue] Code ( other than a political committee , a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office).” See 2 U.S.C. 441i(d)(2) (emphasis added). This provision explicitly confirms Congress's intent to retain separate regimes for those 527 organizations that must register with the Commission as political committees and those 527 organizations that are not required to register as political committees. Furthermore, if Congress had believed that all 527 organizations (other than those operating at the State level) were political committees, this BCRA prohibition would be superfluous.

BCRA also included a limited exception from the prohibition on corporations making electioneering communications for 527 organizations (and 501(c)(4) organizations), as long as they were funded exclusively from individual contributions. See 2 U.S.C. 441b(c)(2). This exception was altered by the Wellstone amendment to BCRA, codified at 2 U.S.C. 441b(c)(6), which strictly limited the scope of the exception. Although the exception was amended, this provision illustrates Congress's knowledge that 527 organizations were raising funds outside FECA's individual contribution limits and source prohibitions to produce communications that referenced Federal candidates. And BCRA makes two explicit determinations: electioneering communications are not themselves “expenditures” (even when conducted by 527 organizations) and such communications may not be paid for with corporate or labor union funds during specific pre-election periods. Had Congress determined that such communications constituted expenditures that required registration as a political committee, the reporting requirements and funding restrictions for the electioneering communications provisions would have been duplicative and meaningless. Yet, Congress chose to leave in place its decisions in 2000 and 2002 that some 527 organizations should report their activities to the IRS, rather than register with the FEC.

BCRA's legislative history further confirms Congress's recognition that 527 organizations (as well as 501(c)(4) organizations) could engage in some Federal campaign activity and yet not have to register as political committees. In defending BCRA's approach to 527 organizations, Senator Snowe stated:

Based on this history of Congressional action regarding section 527 and the enactment of BCRA, the Commission concludes that changing the regulatory definition of “political committee” to rely explicitly upon section 527 tax status would not be consistent with the Commission's statutory authority. The Commission reaches this conclusion regarding the scope of its regulatory authority because Congress previously considered and rejected bills that would have changed the political committee status of 527 organizations. See FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 143 (2000) (“[A] specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended.” ( quoting United States v. Estate of Romani , 523 U.S. 517, 530-31 (1998))).

Furthermore, when Congress revises a statute, its decision to leave certain sections unamended constitutes at least acceptance, if not explicit endorsement, of the preexisting construction and application of the unamended terms. See Cook County, Illinois v. United States ex rel. Chandler , 538 U.S. 119, 132 (2003); Cottage Sav. Ass'n v. Comm'r , 499 U.S. 554, 561-62 (1991); Asarco Inc. v. Kadish , 490 U.S. 605, 632 (1989).

During the 2004 rulemaking, the Commission received a comment signed by 138 Members of the House of Representatives, and a similar comment signed by 19 Senators. Both comments stated, “the proposed rules before the Commission would expand the reach of BCRA's limitations to independent organizations in a manner wholly unsupported by BCRA or the record of our deliberations on the new law.” The comment submitted by the House Members further stated:

In upholding BCRA, the Supreme Court was also well aware that BCRA's new provisions would not reach all interest group Federal political activity. The McConnell Court observed that, unlike political parties, “[i]nterest groups, however, remain free to raise soft money to fund voter registration, [get-out-the-vote] activities, mailings, and broadcast advertising (other than electioneering communications).” McConnell , 540 U.S. at 187-88.

Finally, at least two new bills requiring 527 organizations to register as political committees were recently considered in Congress. See, e.g. , H.R. 513, 109th Cong. (2006); S. 2828, 108th Cong. (2004). The introduction and consideration of these bills, including one supported by two of the Shays II plaintiffs, demonstrates Congress's and these plaintiffs' recognition that Congress has not acted in this area. As with all past Congressional attempts to regulate all 527s as political committees, Congress did not adopt these bills, or any other bills altering the political committee framework. While the Commission is authorized to regulate in order to give substance to otherwise ambiguous provisions, “[a] regulation, however, may not serve to amend a statute, or to add to the statue something which is not there.” See Iglesias v. United States , 848 F.2d 362, 366 (2d Cir. 1988) (citations omitted).

Thus, Congressional action regarding 527 organizations provides no basis for the Commission to revise FECA and the Supreme Court's requirements for political committee status by creating a separate political committee definition singling out 527 organizations. Rather, the Commission's decision to reject proposed rules based on section 527 tax status is consistent with all past Congressional action addressing 527 organizations.

The Shays II court expressed concern that, in the absence of a regulation regarding the major purpose doctrine, the Commission was not providing clear guidance to groups as to when they must register as a political committee. See Shays II , 424 F. Supp. 2d at 115. Applying the major purpose doctrine, however, requires the flexibility of a case-by-case analysis of an organization's conduct that is incompatible with a one-size-fits-all rule.

The Supreme Court has held that, to avoid the regulation of activity “encompassing both issue discussion and advocacy of a political result” only organizations whose major purpose is Federal campaign activity can be considered political committees under the Act. See, e.g., Buckley , 424 U.S. at 79; MCFL , 479 U.S. at 262. Thus, the major purpose test serves as an additional hurdle to establishing political committee status. Not only must the organization have raised or spent $1,000 in contributions or expenditures, but it must additionally have the major purpose of engaging in Federal campaign activity.

The Supreme Court has made it clear that an organization can satisfy the major purpose doctrine through sufficiently extensive spending on Federal campaign activity. See MCFL , 479 U.S. at 262 (explaining that a section 501(c)(4) organization could become a political committee required to register with the Commission if its “independent spending become[s] so extensive that the organization's major purpose may be regarded as campaign activity”).

An analysis of public statements can also be instructive in determining an organization's purpose. See, e.g., FEC v. Malenick , 310 F. Supp. 2d 230, 234-36 (D.D.C. 2004) (court found organization evidenced its major purpose through its own materials which stated the organization's main goal of supporting the election of the Republican Party candidates for Federal office and through efforts to get prospective donors to consider supporting Federal candidates); FEC v. GOPAC , Inc., 917 F. Supp. 851, 859 (D.D.C. 1996) (“organization's [major] purpose may be evidenced by its public statements of its purpose or by other means”); Advisory Opinion 2006-20 (Unity 08) (organization evidenced its major purpose through organizational statements of purpose on Web site). Because such statements may not be inherently conclusive, the Commission must evaluate the statements of the organization in a fact-intensive inquiry giving due weight to the form and nature of the statements, as well as the speaker's position within the organization.

The Federal courts' interpretation of the constitutionally mandated major purpose doctrine requires the Commission to conduct investigations into the conduct of specific organizations that may reach well beyond publicly available advertisements. See, e.g., Malenick , 310 F. Supp. 2d at 234-36 (examining organizations' materials distributed to prospective donors). The Commission may need to examine statements by the organization that characterize its activities and purposes. The Commission may also need to evaluate the organization's spending on Federal campaign activity, as well as any other spending by the organization. In addition, the Commission may need to examine the organization's fundraising appeals.

Because Buckley and MCFL make clear that the major purpose doctrine requires a fact-intensive analysis of a group's campaign activities compared to its activities unrelated to campaigns, any rule must permit the Commission the flexibility to apply the doctrine to a particular organization's conduct. After considering these precedents and the rulemaking record, the Commission concluded that none of the competing proposed rules would have accorded the Commission the flexibility needed to apply the major purpose doctrine appropriately. Therefore, the Commission decided not to adopt any of the proposed amendments to section 100.5. 13

However, even if the Commission were to adopt a regulation encapsulating the judicially created major purpose doctrine, that regulation could only serve to limit, rather than to define or expand, the number or type of organizations regarded as political committees. The major purpose doctrine did not supplant the statutory “contribution” and “expenditure” triggers for political committee status, rather it operates to limit the reach of the statute in certain circumstances.

Moreover, any perceived shortcomings with the enforcement process identified by the Shays II court would not be remedied by a change in the regulatory definition of “political committee.”  14 Any revised rule adopted by the Commission would still have to be interpreted and applied through the very same statutory enforcement procedures as currently exist. In fact, all of the rules proposed in 2004 would have required that factual determinations be made through the enforcement process. See, e.g. , proposed 11 CFR 100.5(a)(2)(iv), Notice of Proposed Rulemaking on Political Committee Status , 69 FR 11736, 11748, 11757 (Mar. 11, 2004) (exemptions limited to 527 organizations that are formed “solely for the purpose of” supporting a non-Federal candidate or influencing selection of individuals to non-elective office). Even if the Commission had simply adopted a rule in 2004 that listed the factors considered in determining an organization's major purpose, the rule would still have had to be enforced through investigations of the specific statements, solicitations, and other conduct by particular organizations. Furthermore, any list of factors developed by the Commission would not likely be exhaustive in any event, as evidenced by the multitude of fact patterns at issue in the Commission's enforcement matters considering the political committee status of various entities (“Political Committee Status Matters”). See, e.g. , MURs 5511 and 5525 (Swiftboat Vets); 5753 (League of Conservation Voters); 5754 (MoveOn.org Voter Fund); 5492 (Freedom, Inc.); 5751 (Leadership Forum).

To best ensure that organizations that participate in Federal elections use funds compliant with the Act's restrictions, the Commission decided in the 2004 rulemaking to adopt two broad anti-circumvention measures. The first expands the regulatory definition of “contribution” to capture funds solicited for the specific purpose of supporting or opposing the election of a Federal candidate. See 11 CFR 100.57. An organization that receives more than $1,000 of such funds is required to register as a political committee. The second rule places limits on the non-Federal funds a registered political committee may use to engage in certain activity, such as voter drives and campaign advertisements, which has a clear Federal component. See 11 CFR 106.6. The combined effect of these two rules significantly curbs the raising and spending of non-Federal funds in connection with Federal elections, in a manner wholly consistent with the existing political committee framework. The effect of these changes on 527 organizations has already been remarked. See Paul Kane, “Liberal 527s Find Shortfall,” Roll Call (Sept. 25, 2006) (“a change in FEC regulations curtailed a huge chunk of 527 money because, after the 2004 elections, the commission issued a ruling that said all get-out-the-vote efforts in Congressional races had to be financed with at least 50 percent federal donations, those contributions that are limited to $5000 per year to political action committees”).

While Supreme Court precedent places strict parameters on the breadth of the definition of expenditure, Supreme Court precedent provides greater deference to contribution restrictions. See FEC v. Beaumont, 539 U.S. 146, 161 (U.S. 2003) (upholding the constitutionality of FECA's corporate contribution prohibition as applied to a non-profit advocacy corporation and noting: “Going back to Buckley, restrictions on political contributions have been treated as merely `marginal' speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.”) (citations omitted). Other judicial precedent specifically permits a broader interpretation of when an organization has solicited contributions. In FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995) ( “SEF” ), the appellate court held that a mailer solicited “contributions” under FECA when it left “ no doubt that the funds contributed would be used to advocate President Reagan's defeat at the polls, not simply to criticize his policies during the election year.” Id. at 295. The Commission's new rule at 11 CFR 100.57 codifies the SEF analysis. Section 100.57(a) states that if a solicitation “indicates that any portion of the funds received will be used to support or oppose the election of a clearly identified Federal candidate,” then all money received in response to that solicitation must be treated as a “contribution” under FECA. See 2004 Final Rules, 69 FR at 68057-58.

When an organization receives $1,000 or more in contributions, including those that are defined under new section 100.57(a), the organization will meet the statutory definition of a “political committee.” An organization that triggers political committee status through the receipt of such contributions is required to register the committee with the Commission, report all receipts and disbursements, and abide by the contribution limitations and source prohibitions.

Thus, section 100.57 codifies a clear, practical, and effective means of determining whether an entity, regardless of tax status, is participating in activity designed to influence Federal elections, and, therefore, may be required to register as a political committee.

In addition, the new regulation contains a prophylactic measure at section 100.57(b) to prevent circumvention of the solicitation rule by registered political committees operating both Federal and non-Federal accounts under the Commission's allocation rules. Section 100.57(b) requires that at least 50%, and as much as 100%, of the funds received in response to a solicitation satisfying the requirements of section 100.57(a) be treated as FECA contributions, regardless of references to other intended uses for the funds received. See 11 CFR 100.57(b)(1) and (2); 2004 Final Rules, 69 FR at 68058-59. Therefore, section 100.57(b) prevents a political committee from adding references to non-Federal candidates or political parties to its solicitation materials in order to claim that most or all of the funds received are for non-Federal purposes, and therefore, not “contributions” under FECA. The regulation has the additional advantage of prohibiting registered political committees from raising donations not subject to the limitations from individual contributors or from prohibited sources using solicitation materials that focus on influencing the election of Federal candidates.

Moreover, the costs of these solicitations must be paid for with a corresponding proportion of Federal funds. For example, if 100% of the funds received from a solicitation would be treated as contributions under section 100.57(b)(1), then 100% of the costs of that solicitation must be paid with Federal funds. See 11 CFR 100.57(b); 11 CFR 106.1(a)(1); 11 CFR 106.6(d)(1); 11 CFR 106.7(d)(4).

In sum, section 100.57 codifies a broad method of establishing political committee status with strong anti-circumvention protections, providing clear guidance to the regulated community that any organization, regardless of tax status, may be required to register as a political committee based on its solicitations.

The 2004 Final Rules also include a comprehensive overhaul of the Commission's allocation regulations, which govern how corporate and labor organization PACs and nonconnected committees split the costs of Federal and non-Federal activities such as campaign ads and voter turnout efforts. See 11 CFR 106.6. Under Commission regulations, a registered political committee that participates in both Federal and non-Federal elections is permitted to maintain both Federal and non-Federal accounts, containing funds that comply, respectively, with Federal and State restrictions. See 11 CFR 102.5(a).

Because many activities that an organization may undertake will have both a Federal and non-Federal component (such as a voter drive where both the Federal candidate and the non-Federal candidate are appearing on the ballot), previous Commission regulations had permitted the committee to develop an allocation percentage based on a ratio of Federal expenditure to Federal and non-Federal disbursements. This allocation percentage would govern how payments for all activity of the organization would be split between the two accounts.

Several commenters claimed that some registered political committees were relying on these former allocation rules to pay for Federal campaign ads and voter turnout efforts that could influence the 2004 Federal elections almost entirely with non-Federal funds. BCRA's Congressional sponsors, including two of the Shays II plaintiffs, argued that the previous allocation requirements “allow[ed] for absurd results” and that “[t]he Commission must revise its allocation rules to require a significant minimum hard money share for spending on voter mobilization in a federal election year.”

Several campaign finance reform groups, including counsel to two of the Shays II amici, urged the Commission to curb these perceived abuses. At the time, they stated it was “essential for the Commission to take this action as part of the [2004] rulemaking process.”

The 2004 Final Rules directly resolve these concerns by establishing strict new Federal funding requirements for registered political committees, as well as for entities that conduct activity through both registered Federal accounts and unregistered non-Federal accounts. The new rules require these groups to: (a) Use a minimum of 50% Federal funds to pay for get-out-the-vote drives that do not mention a specific candidate, as well as public communications that refer to a political party without referring to any specific candidates, and administrative costs; (b) use 100% Federal funds to pay for public communications or voter drives that refer to one or more Federal candidates, but no non-Federal candidates; and (c) for public communications or voter drives that refer to both Federal and non-Federal candidates, use a ratio of Federal and non-Federal funds based on the time and space devoted to each Federal candidate as compared to the total space devoted to all candidates. See 11 CFR 106.6(c); 2004 Final Rules, 69 FR at 68061-63; 11 CFR 106.6(f). Notably, the Commission's new allocation and contribution regulations are the subject of pending litigation, where the Commission is charged not with being too lenient, but being too restrictive. See EMILY's List v. FEC (Civil No. 05-0049 (CKK)) (D.D.C. summary judgment briefing completed July 18, 2005). 15

An additional change to the regulation will also significantly shift political committees towards a greater use of Federal funds. The new regulations require an organization to pay at least 50% of its administrative costs with funds from the Federal account. This regulatory adjustment will curtail longstanding complaints that the Commission's allocation regulations have permitted non-Federal funds to substantially subsidize the overhead and day-to-day operations of the organization's Federal activity.

The revisions to section 106.6 prevent registered political committees from fully funding campaign advertisements and voter drives primarily designed to benefit Federal candidates with non-Federal funds simply by making a passing reference to a non-Federal candidate.

The Commission has applied FECA's definition of “political committee,” together with the major purpose doctrine, in the recent resolution of a number of administrative enforcement Matters involving 527 organizations and other groups. See MURs 5511 and 5525 (Swiftboat Vets); 5753 (League of Conservation Voters); 5754 (MoveOn.org Voter Fund); 5751 (The Leadership Forum); 5492 (Freedom, Inc.). 16 In each of these Political Committee Status Matters, the Commission conducted a thorough investigation of all aspects of the organization's statements and activities to determine first if the organization exceeded the $1,000 statutory and regulatory threshold for expenditures or contributions in 2 U.S.C. 431(4)(A) and 11 CFR 100.5(a), and then whether the organization's major purpose was Federal campaign activity. The settlements in the Political Committee Status Matters are significant because they are the first major cases after the Supreme Court's decision in McConnell to consider the reach of the definition of “express advocacy” when evaluating an organization's disbursements for communications made independently of a candidate to determine if the expenditure threshold has been met. They are also significant because they demonstrate that an organization may satisfy the political committee status threshold based on how the organization raises funds, and that the Commission examines fundraising appeals based on the plain meaning of the solicitation, not the presence or absence of specific words or phrases. Finally, the Political Committee Status Matters illustrate well the Commission's application of the major purpose doctrine to the conduct of particular organizations.

As discussed in detail below, in these and other matters, the Commission provides guidance to organizations about both the expenditure and the contribution paths to political committee status under FECA, as well as the major purpose doctrine. Any organization can look to the public files for the Political Committee Status Matters and other closed enforcement matters, as well as advisory opinions and filings in civil enforcement cases, for guidance as to how the Commission has applied the statutory definition of “political committee” together with the major purpose doctrine. The public documents available regarding the 527 settlements in particular provide more than mere clarification of legal principle; they provide numerous examples of actual fundraising solicitations, advertisements, and other communications that will trigger political committee status. These documents should guide organizations in the future as they formulate plans and evaluate their own conduct so they may determine whether they must register and report with the Commission as political committees. To the extent uncertainty existed, these 527 settlements reduce any claim of uncertainty because concrete factual examples of the Commission's political committee status analysis are now part of the public record.

In the Swiftboat Vets and League of Conservation Voters Matters, the Commission analyzed whether the organizations' advertising, voter drives and other communications “expressly advocated” the election or defeat of a clearly identified Federal candidate under the two definitions of that term in 11 CFR 100.22. 17 The Commission applied a test for express advocacy that is not only limited to the so-called “magic words” such as “vote for” or “vote against,” 18 but also includes communications containing an “electoral portion” that is “unmistakable, unambiguous, and suggestive of only one meaning” and about which “reasonable minds could not differ as to whether it encourages actions to elect or defeat” a candidate when taken as a whole and with limited reference to external events, such as the proximity to the election. 19 The Commission was able to apply the alternative test set forth in 11 CFR 100.22(b) free of constitutional doubt based on McConnell's statement that a “magic words” test was not constitutionally required, as certain Federal courts had previously held. Express advocacy also includes exhortations “to campaign for, or contribute to, a clearly identified candidate.” FEC v. Christian Coalition, 52 F. Supp. 2d 45, 62 (D.D.C. 1999) (explaining why Buckley, 424 U.S. at 44 n.52, included the word “support,” in addition to “vote for” or “elect,” in its list of examples of express advocacy communication). Thus, if the organization spent more than $1,000 on a communication meeting either test for express advocacy, then the statutory threshold of expenditures was met.

The Commission determined that Swiftboat Vets met the threshold for “expenditures” because it spent over $1,000 for fundraising communications that “expressly advocated” the election or defeat of a clearly identified Federal candidate under 11 CFR 100.22(a). In addition, Swiftboat Vets spent over $1,000 for television advertisements, direct mailings and a newspaper advertisement that contained express advocacy under 11 CFR 100.22(b). 20

The Commission also determined that two League of Conservation Voter 527 organizations met the expenditure threshold because they spent more than $1,000 on door-to-door canvassing and telephone banks where the scripts and talking points for canvassers and callers expressly advocated the defeat of a Federal candidate under 11 CFR 100.22(a). In addition, the League of Conservation Voters 527s spent more than $1,000 for a mailer expressly advocating a Federal candidate's election under both definitions in 11 CFR 100.22(a) and (b). 21

With regard to the $1,000 threshold for “contributions,” the Commission examined fundraising appeals from each organization in the Swiftboat Vets, League of Conservation Voters and MoveOn.org Voter Fund matters and determined that if any of the solicitations clearly indicated that the funds received would be used to support or defeat a Federal candidate, then the funds received were given “for the purpose of influencing” a Federal election and therefore constituted “contributions” under FECA. See SEF. The Commission examined the entirety of the solicitations and did not limit its analysis to the presence or absence of any particular words or phrases. If any solicitations meeting the test set forth in SEF resulted in more than $1,000 received by the organization, then the statutory threshold for contributions was met.

Swiftboat Vets received more than $1,000 in response to several e-mail and Internet fundraising appeals and a direct mail solicitation clearly indicating that the funds received would be used to the defeat of a Federal candidate, which meant these funds were “contributions” under FECA. 22 Similarly, the League of Conservation Voters 527s each received more than $1,000 in response to mailed solicitations, telephone calls, and personal meetings with contributors where the organizations clearly indicated that the funds received would be used to defeat a Federal candidate, which also meant these funds were “contributions” under FECA. 23 Finally, MoveOn.org Voter Fund received more than $1,000 in response to specific fundraising e-mail messages that clearly indicated the funds received would be used to defeat a Presidential candidate, which constituted “contributions” under FECA. 24

After determining that each organization in the Swiftboat Vets, League of Conservation Voters, and MoveOn.org Voter Fund matters had met the threshold for contributions or expenditures in FECA and Commission regulations, the Commission then investigated whether each organization's major purpose was Federal campaign activity. The Commission examined each organization's fundraising solicitations, the sources of its contributions, and the amounts received. The Commission considered public statements as well as internal documents about an organization's mission. Each organization's full range of campaign activities was evaluated, including whether the organization engaged in any activities that were not campaign related.

Recently resolved matters reflect the comprehensive analysis required to determine an organization's major purpose. Swiftboat Vets' major purpose was campaign activity, as evidenced by: (1) Statements made to prospective donors detailing the organization's goals; (2) public statements on the organization's Web site; (3) statements in a letter from the organization's Chairman thanking a large contributor; (4) statements by a member of the organization's Steering Committee on a news program; and (5) statements in various fundraising solicitations. The organization's activities also evidenced its major purpose as over 91% of its reported disbursements were spent on advertisements directed to Presidential battleground States and direct mail attacking or expressly advocating the defeat of a Presidential candidate, and the organization has effectively ceased active operations after the November 2004 election. 25

The League of Conservation Voters 527s' major purpose was campaign activity as demonstrated through: (1) Statements made in the organizations' solicitations; (2) statements in organizational planning documents, such as a “National Electoral Strategic Plan 2004”; (3) public statements endorsing Federal candidates; and (4) statements in letters from the organizations' President describing the organizations' activities. The organizations' budget also evidenced its major purpose of campaign activity because 50-75% of the political budget for the organizations was intended for the Presidential election. 26

MoveOn.org Voter Fund's major purpose was campaign activity as evidenced by statements regarding its objectives in e-mail solicitations. MoveOn.org Voter Fund's activities also demonstrated its major purpose of campaign activity. MoveOn.org Voter Fund spent over 68% of its total 2004 disbursements on television advertising opposing a Federal candidate in Presidential battleground states; the only other disbursements from MoveOn.org Voter Fund in 2004 were for fundraising, administrative expenses, and grants to other political organizations. MoveOn.org Voter Fund spent nothing on State or local elections. Lastly, MoveOn.org Voter Fund has effectively ceased active operations after the November 2004 election. 27

527 organizations are not the only groups whose major purpose is Federal campaign activity. The Commission recently conciliated a MUR with a 501(c)(4) organization, Freedom Inc., which had failed to register and report as a political committee despite conducting Federal campaign activity during the 2004 election cycle. See MUR 5492. Freedom Inc. made more than $1,000 in expenditures for communications that expressly advocated a Federal candidate's election under section 100.22(a), and it conceded that its major purpose was campaign activity.

In addition to the Political Committee Status Matters discussed above, the Commission filed suit against another 527 organization, the Club for Growth, Inc. (“CFG”), for failing to register and report as a political committee in violation of FECA. See FEC v. Club for Growth, Inc., Civ. No. 05-1851 (RMU) (D.D.C. Compl. pending). 28 The Commission's complaint against CFG provides further guidance to organizations regarding the prerequisites of political committee status.

The complaint shows that CFG made expenditures for candidate research, polling, and advertising, including advertising that expressly advocates the election or defeat of clearly identified candidates. (Compl. at 10-11). Additionally, CFG made solicitations indicating that funds provided would be used to support or oppose specific candidates, which means the funds received were contributions under FECA. ( Id., at 8-9). Finally, the complaint reflects an extensive examination of the organization, resulting in a determination that the major purpose of the organization was to influence Federal elections ( id., at 12), including evidence such as: CFG's statement of purpose in the registration statement submitted to the Internal Revenue Service ( id., at 6); other public statements indicating CFG'S purpose is influencing Federal elections ( id., at 6-7); CFG's use of solicitations that make clear that contributions will be used to support or oppose the election of specific Federal candidates ( id., at 8-9); other spending by CFG for public communications mentioning Federal candidates ( id., at 10-11); and the absence of any spending by CFG on State or local races ( id., at 10).

Just as findings of violations inform organizations as to what kinds of activities will compel registration as a Federal political committee, a Commission finding that there has been no violation clarifies those activities that will not. For example, in MUR 5751 (the Leadership Forum), the Commission made a threshold finding that there was a basis for investigating ( i.e. , the Commission found “Reason to Believe”) whether the Leadership Forum had failed to register as a political committee based on its 2004 election activity. The subsequent investigation revealed that the Leadership Forum's only public communications reprinted governmental voter information, without any mention of Federal or non-Federal candidates or political parties. Following the investigation, the Commission closed the matter because it found no evidence that the Leadership Forum had crossed the $1,000 threshold through expenditures or contributions. Consequently, the Commission did not undertake a major purpose analysis for the Leadership Forum.

All of these cases taken together illustrate (1) The Commission's commitment to enforcing FECA's requirements for political committee status as well as (2) the need for an examination of an organization's activities under the major purpose doctrine, regardless of a particular organization's tax status.

Any entity that remains unclear about the application of FECA to its prospective activities may request an advisory opinion from the Commission. See 2 U.S.C. 437f; 11 CFR part 112. Through advisory opinions, the Commission can further explain the application of the law and provide guidance to an organization about how the Commission would apply the major purpose doctrine to its proposed activities, and whether the organization must register as a political committee. 29

Under FECA, the Commission is required to provide an advisory opinion within 60 days of receiving a complete written request and, in some instances, within 20 days. See 2 U.S.C. 437f(a); 11 CFR 112.4(a) and (b). Moreover, the Commission's legal analysis and conclusions in an advisory opinion may be relied upon not only by the requestor, but also by any person whose activity “is indistinguishable in all its material aspects” from the activity in the advisory opinion. See 2 U.S.C. 437f(c); 11 CFR 112.5(a)(2). The Commission has considered the major purpose doctrine in prior advisory opinions when assessing whether an organization is a political committee. 30

The advisory opinion process is an effective means by which the Commission clarifies the law because it allows an entity to ask the Commission for specific advice about the factual situation with which the entity is concerned, often in advance of the entity engaging in the contemplated activities.

By adopting a new regulation by which an organization may be required to register as a political committee based on its solicitations, and by tightening the rules governing how registered political committees fund solicitations, voter drives and campaign advertisements, the 2004 Final Rules bolstered FECA against circumvention not just by one kind of organization, but by groups of all kinds. As discussed above, the Commission's decision not to establish a political committee definition singling out 527 organizations is informed by the statutory scheme, Supreme Court precedent, and Congressional action regarding 527 organizations. Accordingly, the Commission will continue to utilize the political committee framework provided by Congress in FECA, as modified by the Supreme Court.

Pursuant to FECA and Supreme Court precedent, the Commission will continue to determine political committee status based on whether an organization (1) Received contributions or made expenditures in excess of $1,000 during a calendar year, and (2) whether that organization's major purpose was campaign activity. See 2 U.S.C. 431(4)(A); Buckley, 424 U.S. at 79; MCFL, 479 U.S. at 262. When analyzing a group's contributions, the Commission will consider whether any of an organization's solicitations generated contributions because the solicitations indicated that any portion of the funds received would be used to support or oppose the election of a clearly identified Federal candidate. See 11 CFR 100.57. Additionally, the Commission will analyze whether expenditures for any of an organization's communications made independently of a candidate constituted express advocacy either under 11 CFR 100.22(a), or the broader definition at 11 CFR 100.22(b).

As evidenced by the Commission's recent enforcement actions, together with guidance provided through publicly available advisory opinions and filings in civil enforcement cases, this framework provides the Commission with a very effective mechanism for regulating organizations that should be registered as political committees under FECA, regardless of that organization's tax status. The Commission's new and amended rules, together with this Supplemental Explanation and Justification, as well as the Commission's recent enforcement actions, places the regulated community on notice of the state of the law regarding expenditures, the major purpose doctrine, and solicitations resulting in contributions. In addition, any group unclear about the application of FECA to its prospective activities may request an advisory opinion from the Commission. See 2 U.S.C. 437f; 11 CFR part 112.

On December 7, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by amending Class E5 airspace at Covington, GA, (71 FR 70911). This action provides adequate Class E5 airspace for IFR operations at Covington Municipal Airport, Covington, GA. Designations for Class E are published in FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) amends Class E5 airspace at Covington, GA.

The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Tuesday, November 28, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 700 ft. above the surface at Mekoryuk, AK (71 FR 68769). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing three new SIAPs, two amended SIAPs and one amended DP for the Mekoryuk Airport. The new approaches are (1) The Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 05, Original, (2) the RNAV (GPS) RWY 23, Original and (3) the Non-directional Beacon (NDB) B, Original. The two amended SIAPs are (1) the NDB/Distance Measuring Equipment (DME) A, Amendment (Amdt) 4 and (2) the Direction Finding (DF) RWY 23, Amdt 1. The DF approach is not published and is used by Flight Service Station staff to aid pilots in emergencies. DP's are unnamed and are published in the front of the U.S. Terminal Procedures for Alaska. Class E controlled airspace extending upward from 700 ft. above the surface in the Mekoryuk Airport area is revised by this action.

Interested parties were invited to participate in this proposed rulemaking by submitting written comments on the proposal to the FAA. No comments have been received, thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9P, Airspace Designations and Reporting Points , dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises Class E airspace at the Mekoryuk Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing three new SIAPs, two amended SIAPs, and one amended DP, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at the Mekoryuk Airport, Mekoryuk, Alaska.

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. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, part A, subpart 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Mekoryuk Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Tuesday, November 28, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Northway, AK (71 FR 68773). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs, one amended SIAP and one amended DP for the Northway Airport. The new approaches are (1) The Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 05, Original and (2) the RNAV (GPS) RWY 23, Original. The amended SIAP is the Very High Frequency Omni-directional Range (VOR)/Distance Measuring Equipment (DME) A, Amendment 1. DP's are unnamed and are published in the front of the U.S. Terminal Procedures for Alaska. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Northway Airport area is revised by this action.

Interested parties were invited to participate in this proposed rulemaking by submitting written comments on the proposal to the FAA. No comments have been received, thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9P, Airspace Designations and Reporting Points , dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises Class E airspace at the Northway Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing two new SIAPs, one amended SIAP, and one amended DP, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at the Northway Airport, Northway, Alaska.

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. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Northway Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Tuesday, November 28, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Gulkana, AK (71 FR 68771). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs, two amended SIAPs and one amended DP for the Gulkana Airport. The new approaches are (1) the Very High Frequency Omni-directional Range (VOR)/Distance Measuring Equipment (DME) Runway (RWY) 15, Original and (2) the VOR/DME RWY 33, Original. The two amended SIAPs are (1) the Area Navigation (Global Positioning System) (RNAV (GPS)) RWY 15, Amendment (Amdt.) 1 and (2) the RNAV (GPS) RWY 33, Amdt. 1. DP's are unnamed and are published in the front of the U.S. Terminal Procedures for Alaska. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Gulkana Airport area is revised by this action.

Interested parties were invited to participate in this proposed rulemaking by submitting written comments on the proposal to the FAA. No comments have been received, thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9P, Airspace Designations and Reporting Points , dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises Class E airspace at the Gulkana Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing two new SIAPs, two amended SIAPs, and one amended DP, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at the Gulkana Airport, Gulkana, Alaska.

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. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Gulkana Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Tuesday, November 28, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revoke Class E airspace located west of Longitude 160° W, along the Aleutian Chain, AK (71 FR 68772). The action was proposed in order to correctly locate these controlled airspace descriptions listed in FAA Order 7400.9P and to remove unnecessary controlled airspace no longer needed. Any airspace along the Aleutian Island Chain to the west of 160° West Longitude must be defined in the Offshore Airspace Area named Control 1234L, even if the airspace is within 12 miles of the shoreline. The airspace around King Cove, AK was inadvertently left out of the Notice of Proposed Rulemaking (NPRM). There is no reason to continue the public comment period because the NPRM clearly described the intent to relocate any controlled airspace west of 160° West Longitude. The controlled airspace description associated with King Cove, AK will be revoked and located the Control 1234L Offshore Airspace description. The Offshore Airspace action associated with this rule is taking place concurrently in a separate airspace rule (06-AAL-29).

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as surface areas are published in paragraph 6002 and 6004 of FAA Order 7400.9P, Airspace Designations and Reporting Points , dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9P, Airspace Designations and Reporting Points , dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revokes Class E2 and E5 airspace along the Aleutian Chain, Alaska to the west of 160° West Longitude. This Class E controlled airspace is revoked to allow it to be correctly listed in the Offshore Airspace description located in FAA Order 7400.9P. The intended effect of this rule is to allow the controlled airspace descriptions to be correctly located in FAA Order 7400.9P.

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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it allows this controlled airspace to be located in the appropriate section of FAA 7400.9P and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On August 11, 2006, the FAA published in the Federal Register a notice of proposed rulemaking to revise Class E airspace at Saratoga, WY (71 FR 46131). This action would improve the safety of Instrument Flight Rules (IFR) aircraft executing this new RNAV GPS approach procedure at Saratoga/Shively Field, Saratoga, WY. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

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

This series of workshops address issues raised in a final rulemaking issued in Docket No. RM06-12-000 (70 FR 75592, December 20, 2005).

The Office of Energy Projects (OEP) will host a series of workshops on Order No. 689, the final rule for Regulations for Filing Applications for Permits to Site Interstate Electric Transmission Facilities which was issued on November 16, 2006, effective February 2, 2007. 1 Order No. 689 stated, in paragraph 1, that the Commission would convene conferences to assist stakeholders in understanding the implementation of this rule.

The Commission staff will be conducting the workshops and the date, time and locations are described below. The workshops are free of charge and are open to all interested stakeholders. We are inviting federal agencies, state and local agencies, tribes, non-governmental organizations, and other interested stakeholders.

The workshop will consist of the Commission staff making a presentation of approximately one hour that would review the origin, the issues raised and the process approved in the final rule. Following the Commission staff presentation, there will be a question and answer period for interested stakeholders.

If you plan to attend, please respond by e-mail at electricoutreach@ferc.gov or by facsimile to “Electric Transmission Rule Outreach” at 202-219-0205. Please include in the response the names, addresses, and telephone numbers of all attendees from your organization.

If you have any questions, you may contact Jeff Wright at 202-502-8617 or John Schnagl at 202-502-8756.

On June 30, the Secretary of State rescinded Libya's designation as a state sponsor of terrorism. This Notice establishes that it is the policy of the United States to deny licenses, other approvals, exports or imports of defense articles and defense services destined for or originating in Libya except, on a case-by-case basis, for non-lethal defense articles and defense services and non-lethal safety-of-use defense articles (e.g., cartridge actuated devices, propellant actuated devices and technical manuals for military aircraft for purposes of enhancing the safety of the aircrew) as spare parts for lethal end-items. For non-lethal defense end-items, no distinction will be made between Libya's existing and new inventory.

On May 8, 2006, the Secretary of State determined that five countries, Cuba, Iran, North Korea, Syria and Venezuela, are not cooperating fully with anti-terrorism efforts [71 FR 28897]. Section 40A of the AECA prohibits the sale or licensing of defense articles and services to those on the list for a term of the fiscal year beginning October 1, 2006. In addition, on August 17, 2006 [71 FR 47554] the State Department announced a policy of denial of the export or transfer of defense articles to and revocation of existing authorizations for Venezuela.

This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554.

This rule does not require analysis under the Regulatory Flexibility Act.

This rule does not require analysis under the Unfunded Mandates Reform Act.

This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. It will not have substantial direct effects on the States, the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

It is determined that this rule does not have sufficient federalism implications to warrant application of the consultation provisions of Executive Orders 12372 and 13132.

This amendment is exempt from review under Executive Order 12866, but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof.

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

Prior to the passage of the Government Employees Rights Act of 1991 (GERA), certain state and local government employees and applicants did not enjoy Federal protection against employment discrimination based on race, color, religion, sex, national origin, age, or disability. In affording these individuals new equal employment opportunity protections, GERA introduced an administrative enforcement mechanism different from EEOC's pre-existing charge resolution procedures. Consequently, EEOC created procedures for handling complaints brought by individuals covered by GERA. These procedures are found in 29 CFR Part 1603.

When 29 CFR Part 1603 was published initially, the legal citation for GERA was 2 U.S.C. 1201 et seq. and that part of GERA applicable to previously exempt state and local employees was 2 U.S.C. 1220. Due to a re-codification and transfer, the citations for GERA have been changed to 42 U.S.C. 2000e-16a et seq. and 42 U.S.C. 2000e-16c, respectively. Similarly, in accordance with an amendment to GERA, section 321 was renumbered as section 304.

As published, the final regulations contain obsolete legal citations which need to be updated.

For the Commission.

The Commission investigates and litigates charges of employment discrimination through its various offices located throughout the country. On July 8, 2005, the Commission voted to open two new local offices, one in Las Vegas, Nevada and one in Mobile, Alabama. These two new office have now been opened. This Final Rule incorporates the addresses of these newly opened offices in the Commission's regulations by modifying 29 CFR 1610.4(c) to reflect the new offices' addresses.

This action pertains to agency organization, management or personnel matters and, therefore, is not a rule within the meaning of section 3(d)(3) of Executive Order 12866.

This regulation contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

The Commission certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because it does not affect any small business entities. The regulation affects only the Equal Employment Opportunity Commission. For this reason, a regulatory flexibility analysis is not required.

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action pertains to the Commission's management, personnel and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

On October 5, 2006, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Lewes and Rehoboth Canal, Mispillion River, DE” in the Federal Register (71 FR 58776). We received one comment on the proposed rule. No public meeting was requested, and none was held.

DelDOT, who owns and operates the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes, the SR 14A Bridge, at mile 6.7, in Rehoboth, and the S14 Bridge, at mile 11.0, across Mispillion River at Milford, requested longer advance notification for vessel openings from 2 hours to 24 hours for the following reasons:

In the closed-to-navigation position, the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes and the SR 14A Bridge, at mile 6.7, in Rehoboth, have vertical clearances of 15 feet and 16 feet, above mean high water, respectively. The existing operating regulation for these drawbridges is set out in 33 CFR 117.239, which requires the bridges to open on signal from May 1 through October 31 from 7 a.m. to 8 p.m. and from 8 p.m. to 7 a.m. if at least two hours notice is given. From November 1 through April 30, the draws shall open if at least 24 hours notice is given.

DelDOT provided information to the Coast Guard about the conditions and reduced operational capabilities of the draw spans. Due to the infrequency of requests for vessel openings of the drawbridge for the past 10 years, DelDOT requested that we amend the current operating regulation by requiring the draw spans to open on signal if at least 24 hours notice is given year-round.

The S14 Bridge, at mile 11.0 in at Milford, has a vertical clearance of five feet, above mean high water, in the closed-to-navigation position. The existing regulation is listed at 33 CFR 117.241, which requires the bridge to open on signal if at least two hours notice is given. Due to the infrequency of requests for vessel openings of the drawbridge for the past 10 years, DelDOT requested that we amend the current operating regulation by requiring the draw spans to open on signal if at least 24 hours notice is given year-round.

The Coast Guard received one comment on the NPRM from the City of Lewes (the City). The City requested that, with respect to the Savannah Road/SR 18 Bridge, the Coast Guard provide for opening the bridge on four-hour notice between May 1 and October 30 of each year, instead of the 24-hour notice proposed in the NRPM.

DelDOT indicated that to ensure reliability and safe performance by bridge operators, a four to six-hour advance notice is actually needed to respond to requests by boaters. Therefore, the Coast Guard considered the change to require at least four hours advance notice by boaters to be safer and more reliable for navigation than the 24-hour proposal and the final rule was changed to reflect this modification.

The Coast Guard will revise 33 CFR 117.239, which governs the Delaware highway bridges, at miles 1.7 and 6.7, both at Rehoboth. The bridge names, the statute mile points and the localities in the paragraph will be changed from the “Delaware highway bridges miles 2.0 and 7.0 both at Rehoboth” to the “Savannah Road/SR18 Bridge, at mile 1.7, in Lewes” and the “SR 14A Bridge, at mile 6.7, in Rehoboth”. These changes will accurately reflect the proper information for these drawbridges.

The current paragraph will be divided into paragraphs (a) and (b). Paragraph (a) will contain the final rule for the Savannah Road/SR 18 Bridge, at mile 1.7 in Lewes and will state that the draw shall open on signal if at least four hours notice is given.

Paragraph (b) will contain the final rule for the SR 14A Bridge, at mile 6.7, in Rehoboth. The final rule will require the drawbridge to open on signal if at least 24 hours notice is given.

The Coast Guard will amend 33 CFR 117.241, which governs the S14 Bridge, at mile 11.0, at Milford by revising the paragraph to read that the draw shall open on signal if at least 24 hours notice is given.

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

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

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

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

This conclusion is based on the fact the rule would not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, and mariners who plan their transits in accordance with the scheduled bridge openings can minimize delay.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. No assistance was requested from any small entity.

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

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

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

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

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

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

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

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

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

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

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Any delay in this regulation's effective date would be impracticable and contrary to public interest since immediate action to restrict and control maritime traffic transiting in the vicinity of the Sloop Channel under the Wantagh Parkway Number 3 Bridge in the Town of Hempstead, Nassau County, Long Island, New York is needed to ensure the safety of vessels transiting the area.

In 2003, the Coast Guard approved bridge construction and issued a permit for bridge construction for the Wantagh Parkway Number 3 Bridge over the Sloop Channel. Contractors began work constructing the two bascule piers for the new bridge in early June 2004. A safety zone was not deemed necessary at the inception of the construction, as this channel is primarily used by smaller recreational vessels, which could maneuver outside of the channel. However, bridge construction equipment that remains under the Wantagh Parkway Number 3 Bridge poses a potential hazard greater than originally anticipated. A safety zone was deemed necessary and was established on October 9, 2004 through December 31, 2004, the date when construction impacting the navigable channel was estimated to be complete. A second safety zone was implemented on January 1, 2005 and extended until December 31, 2005 due to delays in construction, requiring equipment to be in the channel in a manner that would leave the waterway unsafe for marine traffic. Due to continued significant delays in bridge construction, the safety zone was again extended until December 31, 2006. The contractor for this project continues to experience significant delays in bridge construction. In order to continue construction in a more rapid and safe manner, barges will need to continuously block the channel under the bridge. Accordingly, the New York State Department of Transportation (NYSDOT) has requested that a safety zone be put in place through December 31, 2007.

As these barges are presently obstructing the navigable channel, immediate action is needed to prevent accidents by limiting vessel movement in the area with the construction equipment. Traffic exists in this area year-round and increases significantly in the summer months with the return of recreational traffic.

For the same reasons, the Coast Guard also finds under 5 U.S.C. 553(d)(3) that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

Currently, there is a fixed bridge over the Wantagh Parkway Number 3 Bridge over the Sloop Channel in the Town of Hempstead, New York. The NYSDOT determined that a moveable bridge would benefit the boating community. In 2003, the Coast Guard approved bridge construction and issued a permit for bridge construction for the Wantagh Parkway Number 3 Bridge over the Sloop Channel.

Contractors began work constructing the two-bascule piers for the new bridge in early June 2004. The equipment necessary for the construction of the bridge occupies the entire navigable channel. While there are side channels, which can be navigated, the equipment in the channel is extensive and poses a hazard to recreational vessels attempting to transit the waterway via the side channels under the bridge. Construction, requiring equipment in the navigable channel, was originally scheduled to end on December 31, 2004. Numerous delays in the construction have required construction equipment to continue to occupy the navigable channel and have required subsequent extensions of the established safety zone through December 31, 2005 and then through December 31, 2006 when the contractor continued to experience significant delays. Due to continued construction delays, the NYSDOT has requested that a safety zone be established through December 31, 2007.

To ensure the continued safety of the boating community, the Coast Guard is reestablishing the safety zone in all waters of the Sloop Channel within 300-yards of the Wantagh Parkway Number 3 Bridge. This safety zone is necessary to protect the safety of the boating community who wish to utilize the Sloop Channel. Vessels may utilize the Goose Neck Channel as an alternative route to using the Sloop Channel, adding minimal additional transit time. Marine traffic may also transit safely outside of the safety zone during the effective dates of the safety zone, allowing navigation in the Sloop Channel, except the portion delineated by this rule.

This regulation establishes a temporary safety zone on the waters of the Sloop Channel within 300-yards of the Wantagh Parkway Bridge. This action is intended to prohibit vessel traffic in a portion of the Sloop Channel in the Town of Hempstead, New York to provide for the safety of the boating community due to the hazards posed by significant construction equipment and barges located in the waterway for the construction of a new bascule bridge.

The safety zone is being established from 11:59 p.m. on January 22, 2007, to 11:59 p.m. on December 31, 2007. Marine traffic may continue to transit safely outside of the safety zone during the effective dates of the safety zone, allowing navigation in the Sloop Channel, except the portion delineated by this rule. Entry into this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.

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

We expect the economic impact of this rule will be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: Vessels may transit in all areas of the Sloop Channel other than the area of the safety zone, and may utilize other routes with minimal increased transit time.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in those portions of the Sloop Channel in the Town of Hempstead, New York covered by the safety zone. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant Junior Grade D. Miller Assistant Chief, Waterways Management Division, Coast Guard Sector Safety Office Long Island Sound at (203) 468-4596.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 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.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

The Coast Guard analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) 42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) from further environmental documentation. A final “Environmental Analysis Checklist” and a “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0970 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 9, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0970, by one of the following methods:

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

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

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

In the Federal Register of August 9, 2006 (71 FR 45559) (FRL-8082-9), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 6E7078) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27410. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of tris (2-ethylhexyl) phosphate (TEHP, CAS Reg. No. 78-42-2). That notice referenced a summary of the petition prepared by the petitioner. Syngenta Crop Protection, LLC requested the use of TEHP as an adjuvant in pesticide formulations with the active ingredients pinoxaden, clodinafop-propargyl, and tralkoxydium applied to the growing crops wheat and barley. There were no substantive comments received in response to the notice of filing.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by TEHP are discussed in this unit. The following provides a brief summary of the risk assessment and conclusions for the Agency's review of TEHP. The full decision document for this action is available on EPA's Electronic Docket at http://www.regulations.gov under docket number EPA-HQ-OPP-2006-0970.

The Agency reviewed the available information submitted by the petitioner as well as additional information available to the Agency and has determined that TEHP is of low acute and subchronic oral and inhalation toxicity, but is a moderate skin irritant. TEHP is not a cancer concern, is not mutagenic and is not a neurotoxin. Although no developmental toxicity study is available on TEHP, the Agency has determined that tributyl phosphate is an acceptable analog and can be used to characterize the developmental toxicity of TEHP. Based on developmental and reproductive toxicity studies on the analog tributyl phosphate, TEHP is expected to produce developmental toxicity only at maternally toxic doses. One developmental study conducted on tributyl phosphate showed one incident of a rare fetal malformation. The observed effect is not likely to have resulted from exposure to tributyl phosphate. The petitioner has agreed to conduct an acceptable rat developmental study on TEHP and submit it to EPA within 18 months in order to confirm that this malformation is not an effect of TEHP.

The Agency concludes that dietary and drinking water exposures of concern are not anticipated from the inert ingredient use of TEHP considering its physical and chemical properties, including low volatility and rapid biodegradation, and the limitations imposed by its proposed use as an adjuvant in pesticide formulations only with the active ingredients pinoxaden, clodinafop-propargyl, and tralkoxydium, limited to no more than two applications per season on two crops, wheat and barley, up to the pre-boot stage (prior to formation of edible grain).

Residential exposures (inhalation and dermal) to TEHP are not expected due to its low volatility, limited use pattern in agricultural pesticides, and rapid biodegradation in the environment.

Taking into consideration all available information on TEHP, it has been determined that there is a reasonable certainty that no harm to any population subgroup will result from aggregate exposure to TEHP when used as an inert ingredient in pesticide formulations when considering dietary exposure and all other non-occupational sources of pesticide exposure for which there is reliable information. Therefore, the exemption from the requirement of a tolerance requested by the petitioner, Syngenta Crop Protection, LLC, for residues of TEHP, can be considered assessed as safe under section 408(q) of the FFDCA.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitations.

The Agency is not aware of any country requiring a tolerance for tris (2-ethylhexyl) phosphate nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Based on the information in this preamble and in the decision document, EPA concludes that there is a reasonable certainty of no harm to the general population, including infants and children, from aggregate exposure to residues of tris (2-ethylhexyl) phosphate (TEHP). Accordingly, EPA finds that exempting TEHP from the requirement of a tolerance will be safe. EPA is establishing a tolerance exemption for TEHP on wheat and barley when it is used as an inert ingredient in pesticide formulations with the active ingredients pinoxaden, clodinafop-propargyl, and tralkoxydium. TEHP is limited to no more than two applications per season and these applications must occur no later than the pre-boot stage (prior to formation of edible grain).

This final rule establishes an exemption from the tolerance requirement under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of the FFDCA, such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

•  Crop production (NAICS code 111).

•  Animal production (NAICS code 112).

•  Food manufacturing (NAICS code 311).

•  Pesticide manufacturing (NAICS code 32532).

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

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

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0918 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 9, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0918, by one of the following methods:

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

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

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

EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a time-limited tolerance for combined residues of the insecticide avermectin B 1 and its delta-8,9-isomer in or on bulb onions at 0.005 parts per million (ppm). This tolerance expires and is revoked on December 31, 2009. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR).

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .

Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

EPA has authorized under FIFRA section 18 the use of avermectin on bulb onions for control of thrips in Colorado. Avermectin also goes by the name abamectin, but the two names describe the same chemical. The CAS number is the same for both (71751-41-2). After having reviewed the materials submitted in support of the emergency exemption request, EPA concurred with the applicant that emergency conditions existed for this State.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of avermectin in or on bulb onions. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary time-limited tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although this tolerance expires and is revoked on December 31, 2009, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on bulb onions after that date will be lawful, provided the pesticide is applied at a time and in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this time-limited tolerance at the time of that application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions about whether avermectin meets EPA's registration requirements for use on bulb onions or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance serves as a basis for registration of avermectin by a State for special local needs under FIFRA section 24(c). Nor does this time-limited tolerance serve as the basis for any State other than Colorado to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for avermectin, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm .

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of avermectin and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for combined residues of avermectin B 1 and its delta-8,9-isomer in or on bulb onions at 0.005 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological endpoint. However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.

For non-dietary risk assessments (other than cancer) the UF is used to determine the level of concern (LOC). For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. A summary of the toxicological endpoints for avermectin used for human risk assessment can be found in a tolerance document published on February 16, 2005, titled “Avermectin B 1 and its delta-8,9-isomer; Pesticide Tolerance” (70 FR 7876; FRL-7695-7).

1. Dietary exposure from food and feed uses. EPA previously established tolerances (40 CFR 180.449) for the combined residues of avermectin B 1 and its delta-8,9-isomer, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from avermectin in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 and 1998 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: A Tier 3, acute probabilistic dietary exposure assessment was conducted for all supported food uses and drinking water. Acute anticipated residues for many foods were derived using market basket survey, new field trial studies and food handling establishment request. Estimated concentrations of avermectin in drinking water were incorporated directly into the acute assessment.

ii. Chronic exposure . In conducting the chronic dietary risk assessment EPA used the DEEM/FCID which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide CSFII, and accumulated exposure to the chemical for each commodity. Percent crop treated and anticipated residues refinements were used.

A Tier 2 chronic dietary exposure assessment was conducted for the general U.S. population and various population subgroups. The assumptions of the assessment were anticipated residue estimates, percent of crop treated (PCT) estimates for most of the commodities, and default DEEM processing factors when necessary. Estimated concentrations of avermectin in drinking water were incorporated directly into the chronic assessment.

iii. Cancer . EPA did not perform a cancer aggregate exposure assessment because avermectin B 1 is classified as a Group E chemical and is “not likely to be carcinogenic to humans.”

iv. Anticipated residue and PCT information . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. For the present action, EPA will issue such Data Call-Ins for information relating to anticipated residues as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Such data call-ins will be required to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of the FFDCA, EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows: Almonds 21%; avocado 20%; balsam pear 1%; cantaloupe 7%; casabas 1%; chayote fruit 1%; Chinese waxgourd 1%; cotton 3%; cress (garden, upland) 1%; cucumber 1%; grape 6%; hops 82%; honeydew melon 1%; plum 1%; pumpkin 1%; squash 1%; strawberry 44%; walnut 2%; watermelon 7%.

The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which avermectin may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for avermectin in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of avermectin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

Tier II screening models PRZM (Pesticide Root Zone Model) and EXAMS (Exposure Analysis Modeling System) were used to determine estimated surface water concentrations of avermectin based on the modeled scenario of one seed treatment to cucumbers followed by 3 aerial applications at a 7-day interval in Florida. This use of abamectin represents the worst case potential contribution of abamectin to drinking water when considering currently registered uses, including this one.

The full PRZM/EXAMS distribution was used for the acute dietary assessment, and the 1-in-10 year annual mean concentration of 0.244 ppm was used for chronic dietary estimates. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Avermectin is currently registered for use on the following residential non-dietary sites: Residential lawn application for fire ant control and residential indoor crack and crevice application for cockroaches and ants. These registered residential uses may result in short-term to intermediate-term exposures; however, based on current use patterns, long-term exposure (6 or more months of continuous exposure) to avermectin is not expected. Adults may be exposed through handling the pesticide and both adults and children may be exposed through contact with treated areas following application. Accordingly, handler and post-application exposures were assessed for two major categories of residential avermectin use which are considered to represent the reasonable high-end residential exposure potential: Granular baits used to treat lawns, and indoor crack and crevice dust products.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to avermectin and any other substances and avermectin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that avermectin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative/ .

In general . Section 408 of the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

For avermectin B 1 EPA retained the default 10X factor based on the following combination of factors:

• There is residual uncertainty due to a data gap for a developmental neurotoxicity study (DNT), as well as data gaps for acute and subchronic neurotoxicity studies. These studies are required because avermectin B 1 has been shown to be neurotoxic, with multiple neurotoxic clinical signs (including head and body tremors and limb splay) seen in multiple studies with multiple species.

• For several species, the dose-response curve appears to be steep.

• Severe effects were seen at the LOAELs in several studies (death, neurotoxicity, and developmental toxicity). Although increased susceptibility of the young was observed in several studies, the degree of concern with that susceptibility was judged to be low. Increased susceptibility (qualitative and/or quantitative) was seen in prenatal developmental toxicity studies in CD-1 mice and rabbits following in utero exposure to avermectin B 1 . There was also an increase in quantitative and qualitative susceptibility in the rat reproductive toxicity study. The concern for susceptibility seen in the developmental study with rabbits and in the reproductive toxicity study in the rat is low because the lowest NOAEL obtained (0.12 milligrams/kilogram/day (mg/kg/day)) was used as the basis for the cRfD and other non-dietary risk assessment scenarios, which is protective of all of the developmental/offspring effects seen in those studies. Similarly, the concern for susceptibility seen at the LOAEL in the CD-1 mouse developmental toxicity study is low, since the NOAEL in the rat reproductive toxicity study is lower than the dose at which effects were seen in the CD-1 mouse.

The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against estimated drinking water concentrations (EDWCs). The DWLOC values are not regulatory standards for drinking water, but are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. More information on the use of DWLOCs in dietary aggregate risk assessments can be found at http://www.epa.gov/oppfead1/trac/science/screeningsop.pdf .

More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surface and ground water EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs. The risk assessment for avermectin used in this tolerance document uses this approach of incorporating water exposure directly into the dietary exposure analysis.

1. Acute risk . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to avermectin will occupy 42% of the aPAD for the U.S. population, 7% of the aPAD for females 13 years and older, 89% of the aPAD for all infants less than 1-year old and 71% of the aPAD for children 1-2 years old.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to avermectin from food will utilize 9% of the cPAD for the U.S. population, 21% of the cPAD for all infants less than 1 year old and 21% of the cPAD for children 1-2 years old. Based on the use pattern, chronic residential exposure to residues of avermectin is not expected..

3. Short-term and intermediate-term risk . Short-term and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Avermectin is currently registered for use(s) that could result in short-term and intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term and intermediate-term exposures for avermectin.

Using the exposure assumptions described in this unit for short-term and intermediate-term exposures, EPA has concluded that food, water and residential exposures aggregated result in the following aggregate MOEs: 2,900 for the U.S. population, and 1,700 for children 1-2 years old. These aggregate MOEs do not exceed the Agency's level of concern of 1,000 for aggregate exposure to food, water and residential uses.

4. Aggregate cancer risk for U.S. population . EPA has not performed a cancer aggregate risk assessment because avermectin has been classified as a Group E chemical by the Agency and is “not likely to be carcinogenic to humans.”

5. Determination of safety . Based on these risk assessments which indicate that all avermectin risks are below the Agency's levels of concern, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to avermectin residues.

Adequate enforcement methodology is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov .

There are no CODEX residue limits for residues of avermectin on onions, therefore, harmonization is not an issue.

Therefore, the time-limited tolerance is established for combined residues of the insecticide avermectin B 1 (a mixture of avermectins containing greater than or equal to 80% avermectin B 1a (5-O-demethyl avermectin A 1 ) and less than or equal to 20% avermectin B 1b (5-O-demethyl-25-de(1-methylpropyl)-25-(1-methylethyl) avermectin A 1 )) and its delta-8,9-isomer, in or on bulb onions at 0.005 ppm. The time-limited tolerance expires and is revoked on December 31, 2009.

This final rule establishes a time-limited tolerance under section 408 of the FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 exemption under section 408 of the FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurae will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

The Federal Communications Commission is modifying § 0.467(a) of the Commission's rules. This rule pertains to the charges for searching and reviewing records requested under the FOIA. The FOIA requires federal agencies to establish a schedule of fees for the processing of requests for agency records in accordance with fee guidelines issued by the Office of Management and Budget (OMB). In 1987, OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines. However, because the FOIA requires that each agency's fees be based upon its direct costs of providing FOIA services, OMB did not provide a unitary, government-wide schedule of fees. The Commission based its FOIA Fee Schedule on the grade level of the employee who processes the request. Thus, the Fee Schedule was computed at a Step 5 of each grade level based on the General Schedule effective January 1987 (including 20 percent for personnel benefits). The Commission's rules provide that the Fee Schedule will be modified periodically to correspond with modifications in the rate of pay approved by Congress. See 47 CFR 0.467(a)(1) note.

In an Order adopted on January 25, 2007 and released on February 1, 2007 (DA 07-101), the Managing Director revised the schedule of fees set forth in 47 CFR 0.467 for the recovery of the full, allowable direct costs of searching for and reviewing agency records requested pursuant to the FOIA and the Commission's rules, 47 CFR 0.460, 0.461. The revisions correspond to modifications in the rate of pay, which was approved by Congress.

These modifications to the Fee Schedule do not require notice and comment because they merely update the Fee Schedule to correspond to modifications in rates of pay, as required under the current rules. The Commission will not distribute copies of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the rules are a matter of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

Accordingly, pursuant to the authority contained in § 0.231(b) of the Commission's rules, 47 CFR 0.231(b), It is hereby ordered, that, effective on February 7, 2007, the Fee Schedule contained in § 0.467 of the Commission's rules, 47 CFR § 0.467, is amended, as described herein.

Background

The final regulations that are the subject of this correction relate to “Unlicensed Devices and Equipment Approval” under § 15.247 of the rules.

As published, the final regulations contain an error, which requires immediate correction.

Background

On January 25, 2007, the Department of Homeland Security, through TSA and the U.S. Coast Guard (Coast Guard) published a final rule in the Federal Register (72 FR 3492) making technical changes to various provisions of chapter XII, title 49 (Transportation) of the Code of Federal Regulations (CFR), and implementing the TWIC program in the maritime sector of the nation's transportation system. The final rule enhances port security by requiring security threat assessments of individuals who have unescorted access to secure areas and improving access control measures to prevent unauthorized individuals from gaining unescorted access to secure areas. The final rule amends existing appeal and waiver procedures, and expands the provisions to apply to TWIC applicants and air cargo personnel.

This rule correction document revises a paragraph in the appeal and waiver process codified in part 1515, redesignates a paragraph codified in part 1540 procedures for security threat assessment, and revises text in the list of disqualifying offenses codified in part 1572. Finally, we re-word the definition of “transportation security incident” in § 1572.103(a)(5). This definition is based on the definition of “transportation security incident” in 46 U.S.C. 70101(6), which was amended by sec. 124 of the SAFE Port Act, Public Law 109-347. We are amending the rule to conform to that statute.

The Atlantic shark fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The HMS FMP is implemented by regulations at 50 CFR part 635. The fisheries for spiny lobster, queen conch, reef fish, and corals and reef-associated invertebrates in the exclusive economic zone (EEZ) off Puerto Rico and off the U.S. Virgin Islands are managed under fishery management plans prepared by the CFMC. These fishery management plans are implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622.

On March 29, 2006 (71 FR 15680), NMFS published a rule that proposed certain dehooking equipment be on vessels with shark BLL gear on board. Additionally, the rule proposed closing certain areas in the Caribbean to vessels with shark BLL gear on board. NMFS examined several alternatives, the details of which are outlined in the proposed rule and are not repeated here.

As noted in the proposed rule, an objective of the 2003 final rule (December 24 2003; 68 FR 74746) implementing Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks, was to minimize, to the extent practicable, bycatch of living marine resources and the mortality of such bycatch that cannot be avoided in the fisheries for Atlantic sharks. The rule implementing Amendment 1 finalized measures that required the use of non-stainless steel, corrodible hooks aboard shark BLL fishing vessels, the possession of release equipment (line cutters and dipnets, both with extended reach handles), and also required BLL vessels to immediately release any sea turtle, marine mammal, or smalltooth sawfish that is hooked or entangled and then move at least one nautical mile (2 km) before resuming fishing activities. At that time, NMFS had not yet approved dehooking devices for sea turtles. Therefore, implementation of the measure was delayed pending approval.

The purpose of this today's final rulemaking is to update the necessary equipment and protocols that vessel operators in the BLL fishery must possess, maintain, and utilize for the safe handling, release, and disentanglement of sea turtles and other non-target species. Significant new information, techniques, and equipment have been approved and implemented for the pelagic longline (PLL) fishery since NMFS enacted the dehooking requirements for the BLL fishery. Participants in the PLL fishery are required to possess, maintain, and utilize a suite of NMFS-approved handling and dehooking equipment when engaged in fishing activities (July 6, 2004; 69 FR 40734). Research conducted in the Northeast Distant statistical reporting area (NED) has indicated that removing the maximum amount of gear from sea turtles significantly increases post-release survival. Dehooking devices that meet NMFS design standards are necessary for removal of fishing gear and are now available to release sea turtles.

Another objective of this final rule is to implement measures that are complementary to CFMC-recommended measures that NMFS implemented on October 28, 2005 (70 FR 62073). These measures will prohibit vessels issued HMS permits with BLL gear onboard from fishing in six distinct areas off the U.S. Virgin Islands and Puerto Rico, year-round. These six closures should minimize adverse impacts to EFH and reduce fishing mortality for mutton snapper, red hind, and other reef-dwelling species. Scoping hearings for the Comprehensive Amendment to the FMPs of the Caribbean, including the BLL closures in this rulemaking, were conducted from June 4 - 12, 2002, in Puerto Rico and the U.S. Virgin Islands. The Environmental Protection Agency published a notice of availability (NOA) of the Draft Supplemental Environmental Impact Assessment (DSEIS) in the Federal Register on March 18, 2005 (70 FR 13190). The final supplemental environmental impact statement for the Comprehensive Amendment to the FMPs of the Caribbean was filed with the Environmental Protection Agency on June 17, 2005, with the NOA published on June 24, 2005 (70 FR 36581). Based on recent guidance NMFS hopes to publish a proposed rule on equipment that would allow the dehooking of smalltooth sawfish.

The public comment period for the proposed rule (March 29, 2006; 71 FR 15680) was open from March 29 to June 27, 2006. During that time, NMFS held five public hearings and received several written comments. A summary of the major comments received, along with NMFS response, is provided below.

Comment 1: Several commenters urged NMFS to mandate training in sea turtle handling techniques for all BLL fishermen by requiring them to attend workshops similar to those for PLL; BLL fishermen should carry “Careful Release Protocols for Release with Minimal Injury” onboard but this is not a substitute for hands on training; NMFS should consider whether sea turtle resuscitation techniques similar to those used for sea turtles caught by vessels fishing for shrimp are appropriate for BLL; all BLL vessel owners, operators, and observers (and as many crew as possible) should attend a certification level workshop in order to achieve the same level of proficiency as the Northeast Distant (NED) experiment; NMFS must be sensitive to fishing schedules when scheduling workshops; and NMFS might consider having a sticker on vessels whose owners/operators have completed the safe handling and release workshops; and NMFS could accelerate the learning process by educating the recreational sector about these protocols for reducing post release mortality of various sea life.

Response: NMFS agrees that hands-on training on safe handling and release protocols for sea turtles and other protected resources is invaluable. The Final Consolidated HMS FMP and its final rule (October 2, 2006; 71 FR 58058) require all PLL and BLL longline and shark gillnet vessel owners and operators to attend, and successfully complete, workshops on the safe handling and release of protected resources before renewing their permit in 2007. While participants in other HMS fisheries, including HMS Angling and Charter/headboats (CHB) categories are not required to attend, the Agency is encouraging their participation to better understand the materials and protocols available for reducing post-hooking mortality of protected species and other non-target catch. Additional information on the safe handling and release workshops can be found in the Consolidated HMS FMP. Workshop schedules can be found on the HMS website at http://www.nmfs.noaa.gov/ sfa/hms/workshops/index.htm . Currently, all participants in the Atlantic BLL and PLL fisheries are required to follow resuscitation requirements as stated in § 223.206(d)(1). These requirements would not change as a result of this rulemaking.

Comment 2: Several comments were received relating to observer coverage in HMS fisheries, including: increase observer coverage to at least 10 percent; estimates of take and mortality in the PLL fishery have been underestimated; turtles caught on BLL are more susceptible to drowning; are observers put on boats from Virginia northward or Panama City westward?; the extrapolated takes that create the Incidental Take Statement (ITS) seem too high, especially for smalltooth sawfish that occur in a small portion of the Atlantic; the number of takes reported by the observer program has been questioned in the past; why not show the observed number of takes rather than the extrapolated numbers?

Response: Currently, the Agency maintains observer coverage levels that are consistent with the National Bycatch Report and in compliance with the 2003 Biological Opinion (BiOp) for the shark fisheries. Vessels are randomly selected for observer coverage based on region, recent landings, recent selection for observer coverage, and whether they have a valid HMS permit. From 1994 through 2001, the shark BLL observer program was a voluntary program and the observers only went on vessels that agreed to take them. Thus, the data for this time period was not based on a random selection process and did not cover the entire range of the fishery. However, it did cover vessels operating in the major fishing grounds off Florida and North Carolina. In 2002, the observer program became mandatory, with vessels selected randomly across areas based on historic participation patterns. Therefore, vessels in all regions, including those from Virginia northward and from Panama City, FL, westward, are required to carry an observer, if selected. The Incidental Take Statement (ITS) for smalltooth sawfish and sea turtles was determined by the NMFS Office of Protected Resources during the 2003 consultation in conjunction with measures contained in Amendment 1 to the FMP for Atlantic Tunas, Swordfish and Shark (December 24, 2003; 68 FR 74746). The ITS for shark fisheries was based on the extrapolated takes including associated mortalities for the BLL and gillnet fishery. Extrapolated takes were determined based on interaction rates reported in the BLL observer data from 1994 through 2002 in relation to fishing effort data (i.e., number of hooks) based on data from the Coastal Fisheries logbook (Gulf of Mexico reef fish, South Atlantic snapper-grouper, king and Spanish mackerel, and shark logbook) and HMS logbook for trips that reported using BLL gear and landing sharks.

Comment 3: Nesting declines identified in the northern sub-population of loggerhead sea turtles are alarming; western Atlantic loggerhead sea turtles are in clear decline; the southern loggerhead sea turtle nesting subpopulation has declined 29 percent in last 17 years; green and leatherback sea turtle nesting has been increasing dramatically since 1989; and fisheries in the western and eastern Atlantic appear to have a significant impact on Florida's nesting loggerhead sea turtles.

Response: NMFS and the U.S. Fish and Wildlife Service (USFWS) share responsibility for threatened and endangered sea turtles. In general, marine-related activities, such as fishing, are within the purview of NMFS, whereas, terrestrial activities are within the purview of USFWS. The Endangered Species Act (ESA) requires that federal agencies ensure that the actions that they authorize, fund, or conduct do not jeopardize the continued existence of these species. Recovery plans including terrestrial and marine issues for leatherback and loggerhead sea turtles have been in place for several years. The BiOp issued in October 2003 found that Atlantic shark BLL fisheries are not likely to jeopardize the continued existence of any species of sea turtles under NMFS' purview, however, incidental takes of sea turtles (primarily loggerhead and leatherback sea turtles) are anticipated. Finally, the measures selected in this final rule are expected to reduce the post-hooking mortality of sea turtles that are hooked or entangled in the BLL fishery for Atlantic sharks by requiring participants to possess, maintain, and utilize the necessary equipment to remove as much gear as possible from sea turtles to enhance their post-hooking survival and recovery rates.

Comment 4: NMFS received a variety of comments in support of the preferred alternative for gear deployment and operation and some of the benefits of using the dehooking equipment. The comments included: the Agency must also provide an incentive to use the dehooking gear; this equipment was originally designed in the shark fishery; vessels will save time re-rigging and costs by retrieving the hooks with the handling and release equipment; fishermen in Ecuador have been using the dehooking equipment to retrieve hooks which saves them money; and we support all technology that is developed in collaboration with industry.

Response: NMFS agrees that using the dehooking gear can be beneficial to both the fisherman in terms of saved hooks and sea turtles. The selected alternative for gear deployment maintains consistency between the requirements for safe handling, release, and disentanglement of sea turtles and other protected resources caught in Atlantic PLL and BLL fisheries. This equipment was developed in collaboration with the PLL industry. Updating the requirements for the Atlantic shark BLL fishery is necessary to reduce the post-hooking mortality of sea turtles while increasing the likelihood that the ITS for this fishery is not exceeded in the future. Incentives for fishermen to use the dehooking equipment include, but are not limited to, improving the ability of fishermen to retrieve hooks and fishing equipment, which may result in less time spent re-rigging and/or reduced expenditures for hooks.

Comment 5: NMFS received several comments about the estimated costs of procuring the required dehooking equipment, both to individuals and to the shark BLL industry as a whole, including: NMFS should emphasize that BLL operators could reduce costs of required equipment under the preferred alternative by making most of the equipment themselves; a significant portion of the 284 vessels referred to in the draft EA already have PLL permits and already have the equipment, therefore the estimated economic impact associated with the preferred alternative of $71,900 to $138,400 seems high.

Response: NMFS has stated that BLL operators may construct any of the dehooking equipment required by this rule themselves as long as the equipment meets the design standards at 50 CFR 635.21. NMFS also assumes that numerous participants already possess some of the equipment required by this rulemaking, including: bolt cutters, monofilament line cutters, needle nose pliers, standard automobile tire or other comparable surface for immobilizing and elevating turtles, certain mouth gags (nylabone, hank of rope, piece of PVC), and a boat hook or gaff for pulling an inverted “V” on entangled turtles, thereby minimizing the economic impacts of compliance with this rulemaking. NMFS derived the estimate of 284 vessel owners that could potentially be impacted by this rulemaking from the 555 directed and incidental shark permit holders that possessed permits in April 2006. Of those vessels, 284 did not have a directed or incidental swordfish permit. An incidental or directed swordfish permit would be necessary to fish with PLL gear, and those permitted vessels would already be required to possess, maintain, and utilize the equipment and protocols prescribed in this rulemaking. NMFS agrees that this may be an overestimate, as it does not account for latent effort in BLL and PLL fisheries. However, inactivity in the recent past would not exempt permit holders from the need to procure the required equipment before fishing in the future.

Comment 6: NMFS received several comments about the current requirements for dehooking equipment in the Atlantic shark BLL fishery, including: all BLL vessels should already have line cutters, dipnets, bolt cutters, hank of rope, and a wooden brush; NMFS' estimates of costs for the various alternative (high and low end costs) assume that all, or most of the vessels under and over 4 ft have not been in compliance with Amendment 1 (required dipnet and line cutters); are BLL vessels currently required to carry a dipnet?; and many BLL vessel operators do not know about the dipnet requirement.

Response: The cost estimates that NMFS provided in the draft Environmental Assessment (EA) and proposed rule (March, 29, 2006; 71 FR 15680) assumed that all vessels in the Atlantic shark BLL fishery are in compliance with the current equipment requirements for that fishery, which include possession of a long-handled dipnet and linecutter. Costs of compliance included a low-end and a high-end estimate for complying with the range of alternatives considered for this rulemaking. For the preferred alternative, these estimates were between $253.25 and $977.30 and may vary depending on the vessel's freeboard height, what equipment the vessel operator already possesses, whether or not the operators choose to construct some of the materials themselves, and where operators acquire their equipment. The current requirement to possess long-handled dipnets and linecutters for release and disentanglement of sea turtles was included in Amendment 1 to the HMS FMP (December 24, 2003; 68 FR 74746).

Comment 7: NMFS received a variety of comments related to bycatch, National Standard 9 of the Magnuson-Stevens Act, and dehooking requirements in other HMS-managed fisheries, including: according to National Standard 9 of the Magnuson-Stevens Act, NMFS must reduce bycatch, but if NMFS cannot reduce bycatch, it must reduce the mortality of bycatch; the recreational sector cannot reduce bycatch so they must reduce the mortality of bycatch, thus, the recreational sector should have the same requirements put on them regarding safe handling and release of protected species as does the commercial sector; there may be significant interactions with protected species and recreational shark anglers and in the Charter Headboat (CHB) industry; a precautionary/pro-active approach would require the use of comparable handling and release technologies within the recreational hook and line fishery as is required for the commercial PLL and BLL sectors; all commercial fisheries (vertical line, CHB, and tournaments) should be required to utilize the same safe handling and release equipment — all these fisheries have post-release mortality issues that could be solved with the equipment; the recreational sector is by far the largest user group; technology is being transferred from one gear sector to another (PLL to BLL and CHB) and that is the way it should be; as owners, operators, and mates become more proficient at using careful handling and release equipment, they will be safely releasing numerous other non-targeted species and protected resources with the same sea turtle release equipment, which will benefit the conservation efforts of many other fisheries.

Response: The requirements to possess, maintain, and utilize additional dehooking, disentanglement, and safe release equipment were not analyzed for fisheries outside of the Atlantic shark BLL fishery in this rulemaking. The Agency is aware of interactions with sea turtles and other protected resources that may occur outside of the Atlantic shark BLL fishery, including recreational rod and reel fisheries. However, the Agency does not have specific data on interaction rates in these fisheries as they have not been historically selected for observer coverage or required to submit logbooks. While the workshops required by the 2006 Consolidated HMS FMP are only required for vessel owners and operators in the HMS longline and gillnet fisheries, participants in other HMS fisheries (HMS Angling, Charter Headboat, and General Category) are also encouraged to attend these workshops as their participation will enhance their understanding of the materials and protocols available for reducing post-hooking mortality of protected species and other non-target catch.

Comment 8: NMFS received comments regarding the role of the Magnuson-Stevens Act and the International Commission for the Conservation of Atlantic Tunas (ICCAT), including: these are two management entities that are designed to protect U.S. fishermen; we need to sustain U.S. quotas; we cannot transfer handling and release technologies if the United States has no quota; the U.S. fishermen have been environmentally friendly at the expense of their quotas; and most sea turtle bycatch occurs internationally, and why do other countries take sea turtles while the United States does not?

Response: NMFS agrees that the Magnuson-Stevens Act and ICCAT are designed to protect fisheries resources and their participants that depend on these resources. This rulemaking did not consider any alternatives that would affect U.S. quotas of any species, ICCAT-managed or otherwise. Currently, sharks are not managed by specific total allowable catches (TAC) or quotas implemented by ICCAT. The dehooking, disentanglement, and release requirements specified in the selected alternative are being implemented to comply with the October 2003 BiOp and to maintain consistency among HMS longline fisheries.

Comment 9: NMFS received a comment stating that new handling and release requirements should be considered when future BiOps and ITSs are established.

Response: Any existing regulations that may affect the post-hooking survival of sea turtles or other threatened and endangered species will likely be considered in future interagency consultations (i.e., Section 7 of the ESA) on the Atlantic shark BLL fishery as well as other HMS fisheries.

Comment 10: NMFS received a comment asking where the information on turtle takes in the BLL fishery comes from.

Response: The ITS is established during a Section 7 consultation with the NMFS Office of Protected Resources. The data used to determine the extrapolated takes and ITS for the BLL fishery are outlined in the response to Comment 2. These limits represent the number of total estimated takes, based on extrapolated observed takes. The October 2003 BiOp considered each gear type (gillnet and BLL) independently. If the actual calculated incidental captures or mortalities exceed the amount estimated for a gear type, the NMFS Office of Sustainable Fisheries must immediately reinitiate consultation with the NMFS Office of Protected Resources for that gear type.

Comment 11: NMFS received several comments related to the complementary management measures for the Caribbean region, including: why are Caribbean BLL closures lumped into this rule?; Does NMFS regulate the Caribbean?; and does Puerto Rico have a 200 mile Exclusive Economic Zone (EEZ) and does this rule affect them?

Response: In addition to the dehooking, handling, and release requirements for Atlantic shark BLL fisheries, this rulemaking would also implement complementary measures per the request of the CFMC. These measures would prohibit all vessels that have been issued HMS permits with BLL gear onboard from fishing with, or deploying, any fishing gear in six distinct areas off the U.S. Virgin Islands and Puerto Rico, year-round, to protect EFH of reef-dwelling fish species. The final rule that implemented similar measures for fisheries managed by the CFMC was published on October 28, 2005 (70 FR 62073). These measures are being included in this rulemaking because they are germane to the Atlantic shark BLL fishery. However, the impacts associated with these measures are not expected to be significant as there is only one documented commercial shark permit in the Caribbean region. NMFS, in cooperation with the CFMC, regulates Federal fisheries off the coasts of Puerto Rico and the U.S. Virgin Islands because they are U.S. territories. This rule would affect Puerto Rico in the U.S. EEZ beyond the limit of their coastal waters, which extend out to 9 miles.

Comment 12: NMFS received comments on the protocols for vessel operators if they interact with a marine mammal or sea turtle, including: if you interact with a marine mammal, can you just move the animal one mile instead of the vessel? and if a sea turtle is comatose, is it still necessary to relocate the animal one mile?

Response: If vessel operators interact with a marine mammal, smalltooth sawfish or a sea turtle, Federal regulations at 50 CFR 635.21(d)(2), require them to immediately release the animal, retrieve the BLL gear, and move at least 1 nautical mile (2 km) from the location of the incident before resuming fishing. Reports of marine mammal entanglements must be submitted to NMFS consistent with the regulations in 50 CFR 229.6. It is important to note that the vessel should move 1 nautical mile (2 km) before resuming fishing, rather than moving the animal. Comatose sea turtles must be resuscitated according to the regulations at 50 CFR 223.206. Once sea turtles are revived, they must be released over the stern of the boat, only when fishing or scientific collection gear is not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels.

Comment 13: Is NMFS going to subsidize or pay for the purchase of dehooking equipment?

Response: NMFS does not have any plans to subsidize the purchase of dehooking equipment for participants in the Atlantic shark BLL fishery. The costs of compliance with this rulemaking can be minimized by fishermen making some of the required equipment themselves, provided it meets the design standards in 50 CFR 635.21 and outlined in Appendix A of the EA for this rulemaking.

Comment 14: NMFS received a comment about consistency between the dehooking regulations proposed by the Gulf of Mexico Fishery Management Council (GOMFMC) in Amendment 18A to the Reef Fish Fishery Management Plan (August 9, 2006; 71 FR 45428), which would update the dehooking requirements for commercial Atlantic shark fishermen deploying BLL gear. The commenter noted that the requirements were different while they should be the same.

Response: NMFS is aware of the final rule updating handling and dehooking requirements for sea turtles and smalltooth sawfish in compliance with a BiOp issued in conjunction with Amendment 18A of the Reef Fish FMP (August 9, 2006; 71 FR 45428). There are some differences in the dehooking equipment that are required per the regulations for Amendment 18A of the Reef Fish FMP, compared to the requirements selected in this rulemaking. The measures selected in this action were designed to maintain compliance with the October 2003 BiOp that was issued in conjunction with Amendment 1 to the FMP for Atlantic Tunas, Swordfish and Sharks and to maintain consistency with regulations that are currently in effect for the HMS PLL fishery. There are numerous individuals who deploy both BLL and PLL often on the same trip, targeting different species. Therefore, it seems prudent to maintain the same requirements for all HMS-managed longline fisheries regardless of what other fisheries management entities are implementing. All vessels that possess a commercial HMS shark permit would be required to abide by the regulations selected in this rulemaking when BLL gear is onboard, despite the fact that they may possess additional permits for fisheries conducted in the Gulf of Mexico. In addition, if BLL fishermen fulfill the regulations selected in this rulemaking, they would also be compliant with the final dehooking measures for Amendment 18A.

Comment 15: NMFS received several comments seeking clarification as to how the preferred alternative, which would require Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize additional safe handling and release equipment consistent with the requirements for the PLL fishery and comply with handling and release guidelines, differs from alternative 2, which would require Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize additional equipment for the safe handling, release, and disentanglement of sea turtles, marine mammals, smalltooth sawfish, and other bycatch dependent on the vessels' freeboard height. Additionally, the following comments were received regarding the preferred alternative, including: would everyone be required to possess a six foot or longer dehooker under the preferred alternative?; since the preferred alternative would require the same safe handling and dehooking protocols for the BLL fishery as the PLL fishery, there should not be any enforceability issues; and the definition of freeboard height may result in some enforcement issues.

Response: The selected alternative would require all HMS permit holders with BLL gear onboard to possess, maintain, and utilize the same equipment and protocols required in the PLL fishery. Required equipment includes: long-handled dehookers for ingested and external hooks, a long-handled device to pull an inverted “V”, long-handled dipnet, short-handled dehooker for ingested and external hooks, bolt cutter, monofilament line cutter, needle nose pliers, standard automobile tire (or comparable cushioned elevated surface), two types of mouth openers/gags, and the Careful Release Protocols for Sea Turtle Release with Minimal Injury (SEFSC-524). Under the selected alternative, all long-handled equipment must be a minimum of 6 feet (1.82 m) in length or 150 percent of freeboard height. The primary difference between the selected alternative and non-preferred alternative 2, is that alternative 2 would require vessels to possess, maintain, and utilize additional long-handled equipment dependent on the vessels' freeboard height. Vessels with a freeboard height of 4 feet (1.22 m) or less would not be required to possess, maintain, and utilize the long-handled dehookers for ingested and external hooks or the long-handled device to pull an inverted “V” but would be required to have the rest of the dehooking equipment onboard. Vessels with a freeboard height greater than 4 feet (1.22 m) would be required to possess the same equipment as required in the preferred alternative, however, the long-handled equipment that they are required to possess would only have to be 6 feet in length and not 150 percent of the freeboard height.

Comment 16: NMFS received a comment asking whether all of the data used for the analysis for this rule was taken from BLL boats.

Response: The data employed for this rule was attained from both the Atlantic shark BLL fishery and the PLL fishery. NMFS used the best available data for this rulemaking. These data included the number of HMS permits and location of HMS permit holders as of October 2005, commercial landings from the 2004 Coastal Fisheries logbooks, ex-vessel prices for shark products as of 2003, and extrapolated estimates from observer data are from 1994 - 2002.

Comment 17: The biggest killers of sea turtles are shrimp boats operating within 15 miles of the U.S. coast. The turtles bounce through several Turtle Exclusion Devices (TED) and become disoriented and lethargic afterwards.

Response: NMFS is aware of sea turtle interactions in the shrimp fishery. The annual anticipated incidental take levels are much greater in the shrimp fishery than both BLL and PLL fisheries. The shrimp fishery operates within the confines of their specific BiOp, and turtle takes in that fishery are outside the objectives of this rulemaking.

Comment 18: A lot of people did not show up at this hearing because they went through a voluntary BLL dehooking workshop last year in Madeira Beach with Charlie Bergmann.

Response: The NMFS Point Of Contact for safe handling, release, and disentanglement, held nine voluntary workshops in 2005 (May 20, 2005; 70 FR 29285) for participants in the BLL fishery to become more adept at sea turtle handling release and disentanglement protocols. NMFS commends those fishermen who attended the voluntary BLL handling, release, and disentanglement workshops. However, the public hearings for this proposed rule served a different purpose - it provided a forum for NMFS to explain and obtain important input from fishermen and other constituents regarding management measures that the Agency was considering regarding commercial Atlantic shark fishery management. This rulemaking will implement the handling, release, and disentanglement requirements for the Atlantic shark BLL fishery that had previously been voluntary. NMFS attempts to schedule public meetings at times that are conducive to constituent participation and sends out notices in addition to publishing FR notices that announce the time and place of hearings. In addition, NMFS informs key points of contacts and HMS Advisory Panel members in each region to announce the time and place of hearings in those regions. However, the Agency is interested in getting feedback from constituents regarding outreach and how it can better inform participants about the rulemaking process pending changes in their fisheries.

Comment 19: A six foot handle length should be a minimum for all long-handled equipment.

Response: The preferred alternative would require that all long-handled equipment be 6 feet (1.82 m) or 150 percent of the vessel's freeboard height.

Comment 20: I fished off Cape Canaveral for years and never heard of a turtle being caught on BLL gear. Hooking sea turtles is what leads to time/area closures.

Response: Interactions between sea turtles and BLL gear are sporadic and dependent upon time of year, oceanographic conditions, fishing techniques, and other factors. Reducing sea turtle bycatch and bycatch mortality is important to maintain compliance with the ESA and relevant BiOps. Interaction rates with sea turtles are one of many considerations for implementing additional time/area closures as a fishery management tool; however, as was done with the rulemaking that established dehooking and safe handling techniques for the PLL fishery (July 6, 2004; 69 FR 40734), NMFS seeks alternative management measures to time/area closures to decrease interactions with protected species with fishing gears and/or increase post-release survival of protected species once they have interacted with fishing gear.

Comment 21: Most BLL fishermen deploy cable, and not monofilament line, so NMFS cannot assume that PLL and BLL are being deployed by the same vessel on any given trip.

Response: Data collected from the commercial shark fishery observer program indicated that in 2005, approximately 24 percent of observed longline sets deployed cable line, 72 percent deployed monofilament, and approximatley 3 percent deployed a combination of monofilament and cable. Additionally, the PLL observer program has observed trips that use both PLL and BLL and such trips are reported in logbooks.

Comment 22: Sometimes an inexperienced person with dehooking equipment is more dangerous to the fish than someone who does not attempt to pull the hook out themselves.

Response: NMFS requires mandatory workshops resulting in certification on the safe handling, release, and disentanglement techniques as part of the Final Consolidated HMS FMP (October 2, 2006; 71 FR 58058). These hands-on workshops provide training on the proper techniques for using the required safe handling and release equipment, which would prevent bycatch and protected species from sustaining additional injuries as a result of attempted dehooking or disentanglement.

Comment 23: NMFS received numerous comments regarding the safety of fishermen while using safe handling and release protocols for sea turtles and confusion resulting from the terminology used to describe the requirements in the proposed rule. The comments included: the guidelines are confusing describing protocols that are required and that are not required; It would be valuable to have uniform (and intuitive) terminology to describe the protocols used in outreach materials so that fishermen know what is required and what is not, especially in situations where risks are involved; handling and release requirements pose a risk to safety of life at sea; the handling and release requirements should clearly state that they are to be employed only “when practicable”; the documents speak towards risk to turtles but they do not speak towards risk to humans during the procedures — a comparable caveat would be appropriate for any aspect of the disentanglement or line cutting; future mandatory workshops should discuss safety issues posed to humans while attempting to employ the handling and release requirements.

Response: NMFS currently has protocols for how to safely dehook, disentangle, and release sea turtles and smalltooth sawfish that are caught in the PLL fishery. This rulemaking requires that these protocols for safe handling, release, and disentanglement are also mandatory for the BLL shark fishery. These protocols were developed to minimize risks to fishermen while attempting to employ the required equipment and guidelines. NMFS expects fishermen to disentangle and dehook a protected species (and/or bycatch) to the best of their ability and safety. For example, NMFS has protocols for smaller sea turtles that can be boated as well as separate protocols for sea turtles too large and dangerous to be boated.

The Agency also uses consistent terminology for protocols and outreach materials. In this rulemaking, NMFS has based the disentanglement, safe handling, and release requirements for protected species on the requirements in the PLL fishery to maintain consistency between the two HMS fisheries. In addition, the Agency provides placards, video demonstrations, and illustrations of these protocols in Vietnamese, Spanish, and English and is conducting workshops to certify fisherman in the use of the equipment.

There are no changes from the proposed rule (March 29, 2006; 71 FR 15680).

This final rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.

The final rule implementing management measures specific to Council-managed species was determined to be significant for purposes of Executive Order 12866. This final rule, which would close complementary areas for HMS fisheries and require dehooking equipment for BLL fishermen, has been determined to be not significant for purposes of Executive Order 12866.

In compliance with 5 U.S.C. 604, a Final Regulatory Flexibility Analysis (FRFA) was prepared for this rule. The FRFA analyzes the anticipated impacts of the preferred alternatives and any significant alternatives to the final rule that could minimize significant economic impacts on small entities. Each of the statutory requirements of section 604 has been addressed, and a summary of the FRFA is provided below.

NMFS also prepared a FRFA for the final rule that implemented the management measures in the Comprehensive Amendment to the Caribbean FMPs. The FRFA incorporated the Initial Regulatory Flexibility Act analysis (IRFA) published on September 13, 2005 (70 FR 53979), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' response to public comments on the IRFA, and a summary of the analyses completed to support that action. No comments were received in response to the IRFA that related to HMS fisheries. The IRFA prepared for the action in this final rule (March 29, 2006; 71 FR 15680) incorporated by reference, the findings of the FRFA published on October 28, 2005 (70 FR 62073), and describes the economic impact this action, if adopted, would have on small entities participating in HMS fisheries.

Section 604(a)(1) requires the agency to state the objective and need for the rule. As stated in the preamble and in the proposed rule (March 29, 2006; 71 FR 15680), one objective of this final rulemaking is to update necessary equipment and protocols that vessel operators in the BLL fishery must possess, maintain, and utilize for the safe handling, release and disentanglement of sea turtles and other non-target species. Another objective of this final rule is to implement measures that are complementary to CFMC-recommended measures that NMFS implemented on October 28, 2005 (70 FR 62073).

Section 604(a)(2) requires the Agency to summarize significant issues raised by the public comments in response to the IRFA, a summary of the assessment of the Agency of such issues, and a statement of any changes made in the rule as a result of such comments. NMFS received several comments on the proposed rule and draft EA during the public comment period. A summary of these comments and the Agency's responses are included in this final rule. NMFS did not receive any comments specific to the Initial Regulatory Flexibility Analysis (IRFA), but did receive a limited number of comments related to economic issues and concerns. These comments are responded to with the other comments (see Comments 4, 5, 6, and 13). The specific economic concerns are also summarized here.

NMFS received several comments regarding the estimated costs of procuring the required dehooking equipment, both to individuals and to the shark BLL industry as a whole, including: NMFS should emphasize that BLL operators could reduce costs of required equipment by making most of the equipment themselves; and a significant portion of the 284 vessels already have PLL permits and already have the equipment, therefore the estimated economic impact associated with the preferred alternative of $71,900 to $138,400 seems high.

NMFS has stated that BLL operators may construct dehooking equipment as long as it meets design standards at 50 CFR 635.21(c). NMFS also assumes that numerous BLL participants already possess some of the equipment required by this rulemaking which would minimize economic impacts of this final rulemaking. NMFS estimates the number of vessel owners that could potentially be impacted by this rulemaking to be 284. This estimate is derived because 284 of the 555 incidental and directed shark permit holders do not have a directed or incidental swordfish permit. An incidental or directed swordfish permit would be necessary to fish with PLL gear and these vessels would already be required to possess, maintain and utilize the equipment and protocols prescribed in this final rulemaking. NMFS agrees that this may be an overestimate, as it does not account for latent effort in BLL and PLL fisheries. However, whether permit holders had been inactive in the recent past would not exempt them from the need to procure the required equipment before fishing in the future.

Finally, a comment was received asking NMFS if they were going to subsidize or pay for the purchase of dehooking equipment.

NMFS does not have any plans to subsidize the purchase of dehooking equipment for participants in the Atlantic shark BLL fishery. The costs of compliance with this rulemaking can be minimized by fisherman making some of the required equipment themselves, provided it meets the design standards in 50 CFR 635.21(c) and outlined in Appendix A of the EA for this rulemaking.

No changes were made in the rule as a result of these comments. The comments provided did not warrant additional means of minimizing economic impacts while meeting the objectives of this rule.

Section 604(a)(3) requires the Agency to describe and estimate the number of small entities to which the final rule will apply. NMFS considers all permit holders to be small entities as reflected in the Small Business Administrations (SBA) criteria (gross receipts less than $3.5 million, the SBA size standard for defining a small versus large business entity). As of October 2005, there were approximately 235 directed shark permit holders and 320 incidental shark permit holders for a total of 555 permit holders who are authorized to fish for sharks. NMFS considers the 284 shark permit holders that do not also hold swordfish permits to be the universe of permit holders that will be affected by this final rulemaking.

The complementary measures implemented by the CFMC that are included in this rulemaking for Atlantic HMS fishermen will result in six, year-round, BLL gear closures. This could potentially impact all 555 directed and incidental shark fishermen. However, NMFS assumes that shark fishermen residing outside of the Caribbean region would not travel to this region to target sharks due to the extensive distances involved. Therefore, only one incidental shark fishing permit holder and one shark dealer permit holder (both in the U.S. Virgin Islands) may be directly affected by these measures. There are no shark limited access permit holders or shark dealer permit holders in Puerto Rico.

Other sectors of HMS fisheries such as dealers, processors, bait houses, and gear manufacturers, some of which are considered small entities, might be indirectly affected by the final regulations. However, the final rule does not apply directly to them. Rather it applies only to permit holders and fishermen.

Section 604(a)(4) requires the agency to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities which will be subject to the requirements of the report or record. The preferred alternative for additional requirements for safe handling and release of sea turtle and other non-target species in this document will result in additional equipment and compliance requirements for vessels fishing with shark BLL gear. However, there will be no change in projected reporting or recordkeeping requirements.

Section 604(a)(5) requires the Agency to describe the steps taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are:

1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

3. Use of performance rather than design standards; and

4. Exemptions from coverage of the rule for small entities.

As noted earlier, NMFS considers all permit holders to be small entities. In order to meet the objectives of this final rule, consistent with Magunson-Stevens Act, ATCA, and the ESA, NMFS cannot exempt small entities or change the reporting requirements only for small entities. Additionally, the handling and release gear requirements would not be effective with different compliance requirements. Thus, there are no alternatives discussed which fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in modifications to reporting or compliance requirements (category two above). All alternatives considered are based on design standards rather than performance standards; fishermen would be in compliance with the final rulemaking as long as they possess gear and utilize gear that conforms to the design specifications located in Appendix A of the EA for this rulemaking for the safe handling, release, and disentanglement of protected resources. Any item may be constructed or purchased and used by fisherman provided that it meets the design standards listed at 50 CFR 635.21(c). When new items are certified, a notice in the Federal Register will be published. As described below, NMFS analyzed three different alternatives in this final rulemaking and provides justification for selection of the preferred alternative to achieve the desired objectives.

The alternatives include: Alternative 1 (A1), maintaining the current requirements in the Atlantic shark BLL fishery for safe handling, release, and disentanglement of protected resources (status quo); Alternative 2 (A2), requiring Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize certain safe handling, release, and disentanglement of protected resources gears based on freeboard height; and Alternative 3 (A3), the preferred alternative, requiring Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize all the equipment that is currently required for the HMS PLL fishery regardless of vessel freeboard height.

A1 would maintain status quo in the Atlantic shark BLL fishery for safe handling, release, and disentanglement of protected resources. The costs for A1 (approximately $120-$370) represent the cost BLL fishermen have already incurred to comply with HMS BLL regulations for the safe handling, release, and disentanglement of sea turtles, smalltooth sawfish, and other protected resources. Additional economic impacts would not be expected relative to the status quo for the fishery. However, adverse economic impacts could result if no action is taken to reduce sea turtle bycatch mortality because continued operation of the shark fishery is contingent upon compliance with the 2003 BiOp. Sea turtles could have significantly lower post-release survival if hooks and associated fishing gear are not removed; removing fishing hooks and associated gear could help reduce post-release mortality and help the fishery stay below the incidental take limits for the fishery. This could avoid more restrictive regulations to reduce sea turtle bycatch.

The economic impact of A2 depends on freeboard height of the Atlantic shark BLL vessel. The estimated costs range from $152 for low-end priced equipment on vessels with a freeboard four feet (1.22 m) or less to $477 for high-end priced equipment on vessels with a freeboard height greater than four feet (these costs do not include current requirements for the BLL fishery as outlined in A1). The immediate economic impacts of A2 are slightly less than those of the preferred alternative. However, unlike A3, which will require Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize all the equipment that is currently required for the HMS PLL fishery, under A2, BLL fishermen and crew would not be able to move to the PLL fishery as easily because they would not have all the required dehooking equipment for that fishery. Therefore, in the long-term, under A3 Atlantic shark fishermen with BLL gear will not have to purchase different equipment in order to participate in the PLL fishery.

The dehooking equipment requirement under A2 would depend on the vessel's freeboard height, as certain long-handled equipment would not be necessary for vessels with a smaller freeboard (4 feet (1.22 m) or less). The 4 foot or less freeboard height was chosen as the threshold for not needing long-handled dehookers because it is assumed that the handle length of a short-handled dehooker in addition to a fisherman's arm length would be sufficient for reaching and dehooking non-boated sea turtles and other protected resources. However, the majority of sea turtles that would interact with Atlantic BLL fisheries are large juvenile loggerhead and adult leatherback sea turtles. Large juvenile loggerheads and adult leatherback sea turtles would most likely be too large to be boated, requiring dehooking to occur while the sea turtles remain in the water (i.e., small sea turtles can be boated and short-handled dehookers can be used to remove hooks). If long-handled dehookers might facilitate improved hook removal, release, or disentanglement of larger turtles (and research in the NED for the PLL fishery has shown that some turtles released alive may subsequently die from hook ingestion, trailing gear, or injuries suffered when entangled in gear), A2 would have less of an ecological benefit compared to A3.

A3, the preferred alternative, will require Atlantic shark fishermen with BLL gear onboard to possess, maintain, and utilize all the equipment that is currently required for the HMS PLL fishery regardless of vessel freeboard height. NMFS preferred this alternative because it would improve post-hooking survival of sea turtles, smalltooth sawfish, and other protected resources and maintain consistency between the PLL and BLL fisheries. This alternative would have positive ecological impacts and negative short-term economic impacts. A3 is estimated to have an economic impact of a minimum of $253 to $487 for vessels with a freeboard height of four feet (1.22 m) or less. This range represents the range of low-end and high-end priced gears (see Table 6.2 and Table 6.4 in Chapter 6). Larger economic impacts are expected for Atlantic shark fishermen with vessels with freeboard heights greater than four feet (and costs will be dependent on freeboard height due to variable costs of long-handled dehooking gears; Table 6.2).

However, reducing mortality of sea turtles, smalltooth sawfish, and other protected resources is an integral part of maintaining compliance with the relevant BiOp. Consistent with the October 29, 2003, BiOp, NMFS is required to ensure that fishermen handle protected species taken during fishing activities in such a way as to increase their chances of survival. The final rule that implemented NMFS-approved dehooking, disentanglement, and release gear and protocols on all vessels with PLL onboard represents the most up to date scientific information regarding protocols for maximizing post-hooking survival of protected species. Because of the similarities between these fisheries and the fact that many vessel operators and owners fish with both BLL and PLL gear, NMFS is selecting the alternative (A3) that would enable Atlantic shark fishermen with BLL gear onboard to follow the protocols and possess the equipment necessary for the PLL fishery, easing determination of compliance for both fishermen and enforcement. This could also provide fishermen with the flexibility to change between PLL and BLL gear without additional cost. The final rule will allow Atlantic shark fishermen with BLL gear onboard to construct additional equipment themselves provided it meets design specifications. Such construction could reduce economic impacts. In addition, most fishermen have bolt cutters, needle nose pliers, monofilament cutters, boat hooks, and some mouth gags (i.e., the wooden handle of a wire brush, hank of rope, etc) already onboard their vessel, so these items would not have to be purchased. The cost of dehooking gear and time and effort involved in properly dehooking animals may be offset by gaining efficiency in not having to re-rig fishing equipment, and economic gain from retrieving hooks. Such gain could be substantial given an average price for a circle hook is $2.24 (ranging from $0.30 to $7.00 each), and an average price of a J-hook is $2.70 (ranging from $0.50 to $7.50 each) (NMFS, 2005).

The measures implemented by the CFMC are intended to minimize adverse impacts to EFH (coral and hard bottom habitat), to the extent practicable, as a result of bottom tending gear. This final rule will implement six closures off the U.S. Virgin Islands and Puerto Rico, preventing HMS permit holders with BLL gear onboard their vessels, from deploying, or fishing with any fishing gear in these closed areas. These closures are expected to have de minimus impacts on HMS permit holders in the Caribbean region. There are no other alternatives that would achieve the objective of minimizing adverse impacts of bottom fishing on EFH. Additional detail and analysis is included in the FSEIS for the Comprehensive Amendment to the Fishery Management Plans of the U.S. Caribbean and the final rule implementing these measures for council managed fisheries.

This final rule contains no new collection of information requirements subject to review and approval by OMB under PRA.

Endangered and threatened species, Exports, Imports, Transportation.

Fisheries, Fishing, Fishing Vessels, Foreign Relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

Regulations published by NOAA and the USFWS on August 29, 2006 to codify the prohibitions and management measures set forth in Presidential Proclamation 8031 (71 FR 36443, June 26, 2006) establishing the Monument, contained an error in the instructions for submitting comments on the information collection requirements of the final rule via electronic mail, the reference to the dimensions of the Monument's outer boundary, and the numbering sequence for one paragraph.

The first error appeared in the first sentence of the ADDRESSES section of the notice. Here the notice incorrectly refers to a “proposed rule” and provides the incorrect e-mail address. That sentence should read “Submit written comments regarding the burden-hour estimates or other aspects of the information collection requirements contained in this final rule by e-mail to Diana Hynek at dHynek@doc.gov. ” The incorrect e-mail address also appeared in the SUPPLEMENTARY INFORMATION section of the notice in the first column on page 51135 below the table. The e-mail address should read dHynek@doc.gov.

The second error is in the third sentence of the first paragraph of the SUPPLEMENTARY INFORMATION section of the notice, where dimensions for the outer boundary of the Monument were given. The dimensions are for the Monument, not the outer boundary. Therefore, this sentence should read “The Monument is approximately 100 nmi wide and extends approximately 1200 nmi around coral islands, seamounts, banks, and shoals.”

The regulatory text of that rule also contained an error in the numbering sequence for one paragraph. Paragraph 404.11(f)(1)(ii) should have been designated as paragraph 404.11(f)(1)(i)(A). Paragraphs 404.11(f)(1)(ii)(A) and (B) and paragraph 404.11(f)(1)(iii) should have been numbered paragraphs 404.11(f)(1)(i)(B) through (D), respectively. Paragraph 404.11(f)(1)(iv) should have been designated as paragraph 404.11(f)(1)(ii). This final rule makes these corrections. The substance of the regulations remains unchanged.

The Secretaries find good cause to waive notice and comment on this correction, pursuant to 5 U.S.C. 533(b)(B), and the 30-day delay in effective date pursuant to 5 U.S.C. 553(d). Notice and comment are unnecessary because this correction is a minor, technical change in an e-mail address and the numbering of the regulations as well as elimination of erroneous references to the notice as a proposed rule and the dimensions of the Monument's outer boundary. The substance of the regulations remains unchanged. Therefore, this correction is being published as a final regulation and is effective February 7, 2007.

This rule has been determined to be not significant for purposes of E.O. 12866.

Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) appear at 50 CFR part 648, subpart B, and regulations governing foreign fishing appear at 50 CFR part 600, subpart F. The final rule published on January 30, 2007 (72 FR 4211) fulfilled NMFS regulatory requirements at §§ 648.21 and 600.516(c) based on the maximum optimum yield (Max OY) of each fishery as established by the regulations, annually specify the amounts of the initial optimum yield (IOY), allowable biological catch (ABC), domestic annual harvest (DAH), and domestic annual processing (DAP), as well as, where applicable, the amounts for total allowable level of foreign fishing (TALFF) and joint venture processing (JVP) for the affected species managed under the FMP. The final specifications for 2007 were identified in Table 1 of the preamble to the final rule. However, the heading to Table 1 inadvertently indicated that the specifications were “proposed” rather than “final”. This document corrects the heading for Table 1 appearing on page 4212 (FR Doc. E7-1445) of the preamble contained in the January 30, 2007 Federal Register document. The remainder of Table 1 is republished in its entirety for the public's convenience.

The final rule published January 30, 2007 (72 FR 4213) also identified the distribution of the trimester allocation of Loligo squid quota for the 2007 fishing year. However, the heading to Table 2 inadvertently indicated that the trimester allocation was “proposed” rather than “final”. This document corrects the heading for Table 2 appearing on page 4213 (FR Doc. E7-1445) of the preamble contained in the January 30, 2007 Federal Register final rule document. The remainder of Table 2 is republished in its entirety for the public's convenience.

Accordingly, the final rule published on January 30, 2007, at 72 FR 4211 (FR Doc. E7-1445), to be effective March 1, 2007, is corrected as follows:

1. On page 4212, Table 1, title heading is corrected and the table text is republished to read as follows:

2. On page 4213, Table 2, title heading is corrected and the table text is republished to read as follows:

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

The 2007 TAC of Atka mackerel specified for other gear in the Eastern Aleutian District and the Bering Sea subarea was established as 3,434 metric tons (mt) by the 2006 and 2007 final harvest specifications for groundfish in the BSAI (71 FR 10894, March 3, 2006). See § 679.20(a)(8)(ii) and (c)(3)(iii).

In accordance with § 679.20(d)(1)(i) and (d)(1)(ii)(B), the Acting Administrator, Alaska Region, NMFS (Regional Administrator), has determined that 800 mt of the 2007 Atka mackerel TAC for other gear in the Eastern Aleutian District and the Bering Sea subarea will be necessary as incidental catch to support other anticipated groundfish fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,634 mt. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel by vessels using other gear in the Eastern Aleutian District and the Bering Sea subarea.

In accordance with § 679.20(a)(8)(iii)(C), the Regional Administrator is opening the first directed fisheries for Atka mackerel within the HLA in areas 542 and 543, 48 hours after the closure of the Eastern Aleutian District and the Bering Sea subarea Atka mackerel directed fishery. The Regional Administrator has established the opening date for the second HLA directed fisheries as 48 hours after the last closure of the first HLA fisheries in either area 542 or 543. Consequently, NMFS is opening and closing directed fishing for Atka mackerel in the HLA of areas 542 and 543 in accordance with the periods listed under Table 1 of this notice.

In accordance with § 679.20(a)(8)(iii)(A) and (B), vessels using trawl gear for directed fishing for Atka mackerel have previously registered with NMFS to fish in the HLA fisheries in areas 542 and/or 543. NMFS has randomly assigned each vessel to the directed fishery or fisheries for which they have registered. NMFS has notified each vessel owner as to which fishery each vessel has been assigned by NMFS (72 FR 2201, January 18, 2006).

In accordance with the 2006 and 2007 final harvest specifications for groundfish in the BSAI (71 FR 10894, March 3, 2006), inseason adjustment (72 FR 1463, January 12, 2007), and § 679.20(a)(8)(ii)(C)( 1 ), the HLA limits of the A season allowance of the 2007 TACs in areas 542 and 543 are 8,214 mt and 2,664 mt, respectively. Based on those limits and the proportion of the number of vessels in each fishery compared to the total number of vessels participating in the HLA directed fishery for area 542 or 543, the harvest limit for each HLA directed fishery in areas 542 and 543 are as follows: for the first directed fishery in area 542, 4,107 mt; for the first directed fishery in area 543, 1,332 mt; for the second directed fishery in area 542, 4,107 mt; and for the second directed fishery in area 543, 1,332 mt. In accordance with § 679.20(a)(8)(iii)(E), the Regional Administrator has establish the closure dates of the Atka mackerel directed fisheries in the HLA for areas 542 and 543 based on the amount of the harvest limit and the estimated fishing capacity of the vessels assigned to the respective fisheries. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the HLA of areas 542 and 543 in accordance with the dates and times listed in Table 1 of this notice.

After the effective dates of these closures, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the Atka mackerel fishery in the Eastern Aleutian District and the Bering Sea subarea and the opening and closing of the fisheries for the HLA limits established for area 542 and area 543 pursuant to the 2007 Atka mackerel TAC. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 1, 2007. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

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