Examining the Docket

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all McDonnell Douglas Model MD-11 and -11F airplanes. That NPRM was published in the Federal Register on September 20, 2006 (71 FR 54941). That NPRM proposed to require revising the maintenance inspection program that provides for inspection of principal structural elements (PSEs) and replacement of safe-life parts, to incorporate a new revision to the MD-11 Airworthiness Limitations Instructions (ALI). The revision would reduce inspection intervals for fatigue cracking of certain PSEs, and expand the inspection area for a certain other PSE.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received.

Boeing has requested that we provide an extension of the initial inspection threshold for certain airplanes. Boeing states that the ALI specified in the NPRM would require reducing the initial inspection threshold for PSE 54.52.01.1 from 19,000 total flight cycles to 10,200 total flight cycles. Boeing adds that for PSEs 54.21.01.1 (54.52.01.1), 57.21.02.1, and 57.23.01.1, a minimum of 24 months is required to accomplish the initial inspection after paragraph (f) of the NPRM is done; the initial inspection times for these PSEs were reduced. Boeing also states that, as of July 2006, there are approximately 50 airplanes exceeding 10,000 total flight cycles. Boeing points out that the ALI would reduce the initial inspection threshold for PSEs 57.21.02.1 and 57.23.01.1 from 19,900 total flight cycles to 15,750 and 15,250 total flight cycles respectively. Boeing notes that, as of July 2006, there are six airplanes with more than 12,000 total flight cycles. Additionally, Boeing points out that the ALI would reduce the repetitive inspection interval for PSE 57.21.05.1 from 10,000 flight cycles to 3,200 flight cycles. Approximately 50 airplanes would have already accomplished the inspection, but would be planning for a 10,000-flight-cycle repetitive interval instead of a 3,200-flight-cycle repetitive interval. Boeing asserts that a substantial increase in the compliance time requirements for those PSE inspections is necessary to prevent an immediate hardship on the operators of these airplanes.

For the reasons cited by Boeing, we agree with its request to extend certain inspection compliance times. We have determined that PSE number 54.21.01.1, as cited in Boeing's comment, is a typographical error and we have used the correct PSE number, 54.52.01.1, in this AD. We have added a new paragraph (h) to this AD to specify those certain PSE inspection compliance times, and re-identified the remaining paragraphs accordingly.

We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously. These changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 102 airplanes of the affected design in the worldwide fleet. This AD affects about 93 airplanes of U.S. registry. The maintenance and inspection program revision takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $7,440, or $80 per airplane, per inspection cycle.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Examining the Docket

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 747 airplanes. That supplemental NPRM was published in the Federal Register on September 26, 2006 (71 FR 56064). That supplemental NPRM proposed to require repetitive tests to detect hot air leaking from the trim air diffuser ducts or sidewall riser duct assemblies (collectively referred to in the AD as “TADDs”), related investigative actions, and corrective actions if necessary. That supplemental NPRM also provided an optional terminating action for the repetitive tests.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Boeing has reviewed the supplemental NPRM and concurs with the content.

Lufthansa German Airlines asks that, if any hot air leak is found during any test required by paragraph (f) of the supplemental NPRM, we give relief for the corrective actions specified in paragraphs (g) and (h) of the supplemental NPRM. It suggests we do this by allowing deactivation of the zone trim air modulation valve of the affected TADDs for at least ten days. Lufthansa states that this would allow a delay in performing the inspection and corrective actions until after that extension ends; this delay would permit the operator to better plan the actions required if any hot air leak is found during the repetitive tests required by paragraph (f).

We do not agree with the commenter. The zone trim air modulation valves are located downstream of the potential leakage area; therefore, deactivating them would not prevent hot air leakage from the TADDs. We have made no change to the AD in this regard.

Lufthansa asks for clarification of the test requirements specified in paragraph (f) of the supplemental NPRM. Lufthansa states that the repetitive tests specified in paragraph (f) are to be done in accordance with Boeing Service Bulletin 747-21A2418, Revision 4, dated November 17, 2005. Lufthansa adds that Note 2 of the supplemental NPRM refers to Chapters 21-61-20 and 21-61-21 of the Boeing 747 Airplane Maintenance Manual as an additional source of service information for the test and inspections of the TADDs. Lufthansa notes that those chapters describe the temperature measurement procedure for the repetitive hot air leak inspection and specify temperature measurements of all TADDs after thirty seconds, one minute, two minutes, and then every two minutes, for a duration of twenty minutes. Lufthansa states that it is not clear whether the temperature measurements must be performed simultaneously on all ducts, or sequentially with one or more ducts at a time; however, the description suggests performing the measurements simultaneously on all ducts. Lufthansa adds that performing the temperature measurements sequentially with one or more ducts would ease the measurement procedure. Lufthansa notes that it does not understand why the temperature has to be measured on all TADDs every two minutes for a duration of twenty minutes, mainly because the airplane maintenance manual for Model 747-200 Combi airplanes has only baseline and 10-minute measurements and there is no requirement for additional measurements. Lufthansa asks that the intervals be reduced to 1- and 10-minute intervals, with the possibility of performing each measurement sequentially.

We acknowledge and agree with the commenter's concern and provide clarification. The temperature measurement procedure identified by the commenter does specify performing the measurements simultaneously on all ducts. If the procedure were done sequentially, before making each measurement, the initial conditions of the airplane would have to be re-established, and the time required for that would be prohibitive. Measuring the temperatures frequently allows detection of the highest achieved temperature, given that the temperature may not increase steadily. In addition, Model 747-200 Combi airplane configurations are different; therefore, different procedures are used for those airplanes and those procedures cannot be used for the other airplane models specified in this AD. However, according to the provisions of paragraph (l) of this AD, we may approve requests for another method which accomplishes the intent of the maintenance manual tasks if the request includes data which prove that method would provide an acceptable level of safety. We have made no change to the AD in this regard.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed in the supplemental NPRM.

There are about 1,081 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A300-600 airplanes. That NPRM was published in the Federal Register on November 6, 2006 (71 FR 64904). That NPRM proposed to require an inspection to determine if certain spoiler actuators having certain part numbers are installed, and eventual replacement of all affected actuators.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

The Air Transport Association (ATA), on behalf of one of its members, FedEx Express, asks that the inspection procedure recommended by FedEx Express of the distribution blocks on the affected spoiler actuators be included in any future rulemaking. FedEx Express states that it accomplished the proposed inspection on its airplanes, and during the inspection it found that most spoiler actuators of the specified age no longer had data plates attached; therefore, no part number or serial number was available. FedEx Express performed a detailed inspection of the distribution block on the affected spoiler actuator at the inboard and outboard positions to determine the part number. If the part number was installed, FedEx Express replaced the spoiler actuator with a serviceable spoiler actuator. FedEx Express recommends that this inspection procedure be used in any future rulemaking requiring the same actions. FedEx Express states that the procedure was coordinated with Airbus and the parts manufacturer before implementation.

We agree with the commenter's request to add an alternative inspection method of the distribution blocks on the spoiler actuators to determine the part number. Therefore, we have added an inspection to determine the part number of the distribution block of the spoiler actuator if the spoiler actuator part number cannot be found on the spoiler actuator. Paragraph (f) of this AD has been changed accordingly. In addition, if the same actions are required by future rulemaking we may consider using this inspection procedure on a case-by-case basis.

The Modification and Replacement Parts Association (MARPA) asks that the NPRM, and subsequent NPRMs, indicate which documents will be incorporated by reference, and adds that those documents should be published in the DMS concurrently with the NPRM. MARPA assumes that when the final rule is issued the FAA intends to incorporate by reference the service bulletin referenced in the NPRM. MARPA states that the NPRM is incomplete if that's the case, and MARPA is unable to address the substantive elements of the NPRM without having access to the documents that are incorporated by reference.

We do not agree with the commenter's requests. When we refer to certain service information in a proposed AD, the public can assume we intend to incorporate by reference that service information, as required by the Office of the Federal Register. In regard to the request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the AD is necessary in this regard.

FedEx Express asks that the cost estimate specified in the Costs of Compliance section be changed. FedEx Express states that there are two airplanes of U.S. registry affected by the NPRM; however, the NPRM specifies only one. The ATA, on behalf of FedEx Express, reiterates the above comment. FedEx Express adds that both of its Airbus Model A300-600 airplanes manufacturer serial numbers 361 and 365, are listed in the service bulletin effectivity and are operated by FedEx Express.

We agree with the commenter for the reason provided, and have changed the Costs of Compliance section in this AD accordingly.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. These changes will not increase the economic burden on any operator or increase the scope of the AD.

This AD affects about 2 airplanes of U.S. registry.

The inspection takes about 1 hour per airplane, at an average labor rate of $80 per hour. Based on these figures, the estimated cost of the inspection for U.S. operators is $160, or $80 per airplane.

The replacements, if accomplished, take about 5 work hours per airplane, at an average labor rate of $80 per work hour. Required parts cost is minimal. Based on these figures, the estimated cost of the replacements for U.S. operators is $800, or $400 per airplane.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Examining the Docket

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 737-300, -400, -500, -600, -700, -800 and -900 series airplanes; and Model 757-200 and -300 series airplanes. That NPRM was published in the Federal Register on July 13, 2006 (71 FR 39593). That NPRM proposed to require modifying the activation mechanism in the chemical oxygen generator of each passenger service unit (PSU).

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Boeing and AirTran support the NPRM.

The Air Transport Association (ATA), on behalf of its member, Delta Airlines, asks that the compliance time for accomplishing the modification be changed from 60 months to 72 months. Delta states that this would better align with airplane heavy maintenance visits.

We do not agree with ATA and Delta. The commenters provided no technical justification for revising this compliance time. Chemical oxygen generators failing to activate during in-flight decompression events is a significant safety issue; therefore, we have determined that the proposed 60-month compliance time is warranted. This determination is based on the effectiveness of the modification and the fact that failure of the activation mechanism of the chemical oxygen generator could result in the unavailability of supplemental oxygen and possible incapacitation of passengers and cabin crew during an in-flight decompression. In developing an appropriate compliance time for this AD, we considered those safety issues, as well as the manufacturer recommendations, the availability of necessary repair parts, and the practical aspect of accomplishing the required modification within an interval of time that corresponds to the normal maintenance schedules of most affected operators. In light of these factors, we have determined that the 60-month initial compliance time, as proposed, is appropriate. We do not find it necessary to change the AD in this regard.

The Modification and Replacement Parts Association (MARPA) states that ADs are based on service information that originates from the type certificate holder or its suppliers. MARPA adds that manufacturers' service documents are privately authored instruments, generally having copyright protection against duplication and distribution. MARPA states that when a service document is incorporated by reference into a public document, such as an AD, pursuant to 5 U.S.C. 552(a) and 1 CFR part 51, it loses its private, protected status and becomes a public document. MARPA notes that if a service document is used as a mandatory element of compliance, it should not simply be referenced, but should be incorporated by reference. MARPA believes that public laws, by definition, should be public, which means they cannot rely upon private writings for compliance. MARPA adds that the legal interpretation of a document is a question of law, not of fact; therefore, unless the service document is incorporated by reference, it cannot be considered. MARPA is concerned that failure to incorporate essential service information could result in a court decision invalidating the AD.

MARPA also states that service documents incorporated by reference should be made available to the public by publication in the Docket Management System (DMS), keyed to the action that incorporates those documents. MARPA notes that the stated purpose of the incorporation by reference method is brevity, to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals. MARPA adds that, traditionally, “affected individuals” means aircraft owners and operators, who are generally provided service information by the manufacturer. MARPA adds that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA notes that this new class includes maintenance and repair organizations, component servicing, and/or servicing alternatively certified parts under section 21.303 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303). MARPA notes that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper. Therefore, MARPA asks that the service documents deemed essential to the accomplishment of the NPRM be incorporated by reference into the regulatory instrument and published in DMS.

We acknowledge MARPA's requests. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the documents necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, as noted by the commenter, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

In regard to MARPA's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the AD is necessary in response to these comments.

ATA, on behalf of its member, Delta Airlines, states that since the NPRM is written against airplanes and not individual PSUs, it should reflect the cost per airplane. Delta states that its approximate cost per Model 757 airplane is over $10,000; the total cost for its Model 757 fleet is in excess of $350,000. Delta adds that for its Model 737-800 fleet, 71 airplanes are affected, each currently having 54 PSUs installed. Delta states that the approximate cost per Model 737-800 airplane is over $6,000; the total cost for its Model 737-800 fleet is over $440,000.

We agree with the commenters. We have provided the approximate number of PSUs per airplane that are necessary to do the modification in the Costs of Compliance section below.

Continental Airlines has concerns regarding the availability of Boeing's material stock ( i.e. , service bulletin kits), as well as those ancillary PSU parts which may be needed during the modification.

We infer that Continental wants verification of available parts. We have confirmed with Boeing that an ample number of required parts will be available to modify the U.S. fleet within the proposed compliance time. In light of this fact, we do not find it necessary to change the AD in this regard.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 3,283 airplanes of the affected design in the worldwide fleet. This AD affects about 815 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD. The cost of the modification depends on the number of PSUs per airplane. The cost to modify all airplanes ranges from $4,342,320 up to $12,506,175.

This final rule amends the Chemical Weapons Convention Regulations (CWCR) to expedite the collection of information concerning the inspection status of plant sites that produce unscheduled discrete organic chemicals (UDOCs) that are subject to the declaration requirements of the CWCR. This rule also clarifies the scope of the CWCR records review and recordkeeping requirements. In addition, this rule updates the maximum civil penalty that may be imposed for violations of the CWCR restrictions on imports of CWC Schedule 1 and Schedule 2 chemicals. These changes were included in a proposed rule and request for comment that BIS published on October 6, 2006 (71 FR 59032). BIS did not receive any public comments on the proposed rule and is publishing this final rule to implement these changes.

The CWCR include requirements to declare certain activities, involving scheduled chemicals and UDOCs, and to provide access for on-site verification by international inspectors of certain declared facilities in the United States. The CWCR implement the provisions of the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention), affecting U.S. industry and U.S. persons, in accordance with the provisions of the Chemical Weapons Convention Implementation Act of 1998 (the Act or CWCIA) (22 U.S.C. 6701 et seq.). The Act authorizes the United States to require the U.S. chemical industry and other private entities to submit declarations, notifications and other reports and also to provide access for on-site inspections conducted by inspectors from the Organization for the Prohibition of Chemical Weapons (OPCW).

The CWC, which entered into force on April 29, 1997, is an arms control treaty with significant nonproliferation aspects. As such, the CWC bans the development, production, stockpiling or use of chemical weapons and prohibits States Parties to the CWC from assisting or encouraging anyone to engage in a prohibited activity. The CWC provides for declaration and inspection of all States Parties' chemical weapons and chemical weapon production facilities, and oversees the destruction of such weapons and facilities. To fulfill its arms control and nonproliferation objectives, the CWC also establishes a comprehensive verification scheme and requires the declaration and inspection of facilities that produce, process or consume certain “scheduled” chemicals and UDOCs, many of which have significant commercial applications.

Part IX of the Verification Annex of the CWC contains provisions that apply to declarations and inspection of “other chemical production facilities,” which are referred to as UDOC plant sites in Part 715 of the CWCR. Plant sites that declare under Part 715 of the CWCR must submit an Annual Declaration on Past Activities describing UDOC activities subject to declaration during the previous calendar year. These annual declarations must be submitted to BIS no later than February 28th of the year that follows the calendar year in which the UDOC activities took place. The U.S. Government compiles these declarations into the annual U.S. declaration on past activities, which it submits to the OPCW within 90 days after the beginning of the calendar year in which the UDOC plant sites submit their individual declarations to BIS.

Part 716 of the CWCR states that a UDOC plant site is subject to inspection during a specific calendar year only if it produced in excess of 200 metric tons aggregate of UDOCs during the previous calendar year (see § 716.1(b)(4)). A plant site cannot be subject to inspection, for UDOC activities that took place during the previous calendar year, if: (1) A declaration is not required to be submitted to the OPCW or (2) a declaration is submitted to the OPCW with aggregate quantities of UDOCs below 200 metric tons. The due date for a UDOC plant site to submit its Annual Declaration on Past Activities to BIS is February 28th of the year following the calendar year in which the UDOC activities took place. Prior to the publication of this final rule, there was no mechanism in the CWCR that allowed the U.S. Government to determine which UDOC plant sites were subject to inspection and to notify the OPCW concerning the inspection status of such plant sites, prior to the due date for submitting the U.S. annual declaration on past activities to the OPCW (i.e., within 90 days after the beginning of the calendar year). Therefore, as a practical matter, UDOC plant sites in the United States did not become subject to inspection by the OPCW until the U.S. annual declaration on past activities had been submitted to the OPCW. BIS recognized that universal application of this approach would interfere with the conduct of UDOC inspections in States Parties for the first 90 days of each calendar year (i.e., a “90-day gap”), which could have the long-term effect of undermining the verification regime of the CWC.

In order to eliminate this “90-day gap,” BIS is amending the CWCR by revising the annual declaration requirements for UDOCs to allow a “declared” plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR, to submit a Change in Inspection Status Form to BIS, so that BIS can inform the OPCW that the plant site will not be subject to inspection during the next calendar year. This new form must be submitted to BIS no later than December 15th of the current calendar year (i.e., the year in which UDOC production is anticipated to be below the inspection threshold level). The U.S. Government will then inform the OPCW that the plant site will not be subject to inspection during the next calendar year.

Certain plant sites will be given the option of submitting their Annual Declaration on Past Activities in lieu of the Change in Inspection Status Form. In choosing this alternative, however, the plant sites will have to submit their Annual Declaration on Past Activities to BIS by December 15th of the current calendar year, instead of February 28th of the following year, as is normally required under the CWCR. The only UDOC plant sites that will be eligible to use this option are those that anticipate producing by synthesis one or more PSF chemicals (i.e., UDOCs containing the elements phosphorus, sulfur or fluorine) during the current calendar year, in quantities that would require them to submit an Annual Declaration on Past Activities to BIS, but that would be below the CWCR inspection threshold level for UDOCs (i.e., plant sites that contain at least one plant that anticipates producing in excess of 30 metric tons of an individual PSF chemical, but that do not anticipate producing by synthesis in excess of 200 metric tons aggregate of all UDOCs during the current calendar year).

If, subsequent to submitting its Change in Inspection Status Form to BIS, a UDOC plant site determines that the production by synthesis of UDOCs at the plant site actually exceeded the UDOC inspection threshold level specified in § 715.1(d)(1) of the CWCR, the plant site must indicate this fact when it submits its Annual Declaration on Past Activities to BIS and explain, on Form B, why the plant site exceeded the UDOC inspection threshold. In addition, any UDOC plant site that chooses the option of submitting its Annual Declaration on Past Activities to BIS by December 15th, in lieu of a Change in Inspection Status Form, and subsequently determines that the production by synthesis of UDOCs at the plant site actually exceeded the UDOC inspection threshold level specified in § 715.1(d)(1) of the CWCR, must submit an amendment to its Annual Declaration on Past Activities (see § 715.2 of the CWCR) indicating this fact and explaining, on Form B, why the plant site exceeded the UDOC inspection threshold.

Currently inspectable UDOC plant sites that do not submit either a Change in Inspection Status Form or an Annual Declaration on Past Activities by December 15th of the current calendar year, as provided in this rule, will remain subject to inspection through at least the 90-day period at the beginning of the next calendar year.

This final rule also amends the CWCR to clarify the scope of the records review requirements for inspections. Prior to the publication of this rule, Section 716.4(e) of the CWCR was unclear concerning the extent to which an OPCW Inspection Team would have access to a facility's records that were related to activities that took place at the facility during the previous calendar year. This rule amends Section 716.4(e) of the CWCR to clarify that a facility undergoing inspection must provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year (i.e., up to and including the date of the inspection), regardless of whether or not the facility has submitted its Annual Declaration on Past Activities to BIS at the time of the inspection.

In addition, this final rule amends Section 716.4(e) of the CWCR to ensure that the CWCR records review requirements for inspections fully conform with the inspection aims described in Part 716 of the CWCR. Since BIS began hosting inspections under the CWCR, the standard practice has been for facilities to provide, as appropriate, records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or product chemicals formed from such chemicals and feedstock. The OPCW Inspection Team requires access to these types of records in order to accomplish the aims of the inspections, as described in Parts VI-IX of the Verification Annex of the CWC and in Part 716 of the CWCR. Parts VI-IX of the CWC Verification Annex establish the general and specific aims for inspections, including verification of the absence of Schedule 1 chemicals and the non-diversion of Schedule 1 and Schedule 2 chemicals. Part 716 of the CWCR describes these CWC inspection aims and establishes requirements for providing Inspection Teams with access to records in order to achieve these aims. Prior to the publication of this rule, Section 716.4(e) of the CWCR did not clearly indicate that facilities were required to make available to the Inspection Team all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. Therefore, this rule amends Section 716.4(e) to clearly indicate that the facility must make all such records available to the Inspection Team.

Consistent with the clarification to Section 716.4(e) of the CWCR described above, this final rule also amends the recordkeeping provisions in Section 721.2(a) of the CWCR to specifically require that each facility subject to inspection under Part 716 of the CWCR retain all records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals.

This rule amends the enforcement provisions in Part 719 of the CWCR to increase the maximum civil penalty that may be imposed for violations of the CWCR restrictions on imports of CWC Schedule 1 or Schedule 2 chemicals from $11,000 to $50,000 to reflect amendments to Section 206 of the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1705) made by the USA PATRIOT ACT Improvement and Reauthorization Act of 2005 (Public Law 109-177), which was enacted on March 9, 2006. Specifically, this rule amends Section 719.3(b) of the CWCR and the footnote thereto to increase the maximum civil penalty that BIS may impose under IEEPA. As a result of this amendment to the CWCR, any violations of the CWC Schedule 1 or Schedule 2 import restrictions described in Section 719.3(a) of the CWCR will be subject to the increased IEEPA maximum civil penalty of $50,000.

Finally, this rule revises Supplement No. 1 to Part 710 of the CWCR (titled “States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction”) by adding the Central African Republic and Comoros, which recently became States Parties to the CWC. As a result of this change, the CWCR declaration and reporting requirements for these two countries will be the same as those that apply to other States Parties. In addition, the listing for Serbia and Montenegro is removed and both countries are now listed, separately. Each country is now a State Party to the CWC and the United States has recognized Montenegro as a sovereign state. See Press Release, U.S. Department of State, U.S. Recognizes Montenegro as Independent State (June 13, 2006), available at http://www.state.gov/secretary/rm/2006/67839.htm.

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

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0091 (Chemical Weapons Convention—Declaration and Report Forms), which carries burden hour estimates, per respondent, of 10.6 hours for Schedule 1 Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours for Schedule 3 chemicals, 5.3 hours or 5.1 hours for unscheduled discrete organic chemicals (depending upon whether an Annual Declaration on Past Activities or a No Changes Authorization Form, respectively, is required), 0.17 hours for Schedule 1 notifications, and 1.7 hours for compliance review requests. These burden hour estimates also include all types of amendments required under the Chemical Weapons Convention Regulations (CWCR). The Declaration and Report Handbooks include a “Guide to Submission of Forms” which also identifies the specific forms that must be included in a declaration or report package. To calculate the number of hours it takes to complete a specific type of declaration or report, multiply the number of forms required for a specific declaration or report type by the number of hours estimated to complete each form. BIS will use the information contained in declarations and reports submitted by U.S. persons to compile the U.S. National Industrial Declaration in order to meet our obligations under the Chemicals Weapons Convention. BIS will submit the U.S. National Industrial Declaration to the United States National Authority who will forward the Declaration to the Organization for the Prohibition of Chemical Weapons as required by the Convention.

This rule will increase the burden hours under the approved collection (i.e., Control Number 0694-0091) by amending Section 715.1(d) of the CWCR to add a new requirement for the submission of a Change in Inspection Status Form that applies to any “declared” unscheduled discrete organic chemical (UDOC) plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR. These UDOC plant sites are required to submit a Change in Inspection Status Form to BIS, by December 15th of the current calendar year, in order to ensure that they will not be subject to inspection during the first 90 days of the next calendar year. Prior to the publication of this rule, there was no mechanism in the CWCR that allowed the U.S. Government to determine which UDOC plant sites were subject to inspection and to notify the OPCW concerning the inspection status of such plant sites, before the due date for submitting the U.S. annual declaration on past activities to the OPCW (i.e., within 90 days after the beginning of the calendar year). Therefore, as a practical matter, UDOC plant sites in the United States did not become subject to inspection by the OPCW until the U.S. annual declaration on past activities had been submitted to the OPCW. Universal application of this approach would have interfered with the conduct of UDOC inspections in States Parties for the first 90 days of each calendar year (i.e., the “90-day gap”), which could have had the long-term effect of undermining the verification regime of the CWC.

BIS estimates that the burden hours for completion and submission of the Change in Inspection Status Form will be 5.1 hours per respondent. The total burden hours for this additional collection of information are estimated to be 30.6 hours (i.e., 5.1 burden hours × 6 respondents). The estimated total cost of this additional collection of information will be $1,163 (30.6 burden hours × $38/hour). As a result of the changes made by this rule, the total estimated annual burden hours under the approved collection (i.e., Control Number 0694-0091) will increase from 4,471 burden hours to 4,501.6 burden hours. This estimate takes into consideration the fact that this rule provides certain “declared” UDOC plant sites (i.e., plant sites that anticipate producing one or more PSF chemicals during the current calendar year, in quantities that would require them to submit an Annual Declaration on Past Activities to BIS, but that would be below the CWCR inspection threshold level for UDOCs) with the option of submitting their Annual Declaration on Past Activities earlier than normally required (i.e., December 15th of the year in which the UDOC activities take place, instead of February 28th of the following year), in lieu of submitting a Change in Inspection Status Form.

This rule also makes several amendments to the CWCR records review and recordkeeping requirements, none of which will affect the burden hours and associated costs under the approved collection (i.e., Control Number 0694-0091). This rule amends Section 716.4(e) of the CWCR to: (1) Clarify the extent to which an OPCW Inspection Team will have access to a facility's records that are related to activities that took place at the facility during the previous calendar year (by requiring facilities undergoing inspection to provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year, i.e., up to and including the date of the inspection) and (2) ensure that the CWCR records review requirements for inspections fully conform with the inspection aims described in Part 716 of the CWCR (by requiring facilities to make available to the Inspection Team all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock). Consistent with the changes to Section 716.4(e) of the CWCR, this final rule amends the recordkeeping provisions in Section 721.2(a) of the CWCR to specifically require that each facility subject to inspection under Part 716 of the CWCR retain all records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals.

In order to assess the extent to which requiring facilities to maintain and make available records to verify the non-diversion of CWC Schedule 1 and Schedule 2 chemicals would affect the burden hours and associated costs under the approved collection (Control Number 0694-0091), BIS conducted a voluntary survey of nine facilities, requesting these facilities to estimate the time that would be required to prepare and maintain records used to determine non-diversion of CWC Schedule 1 and Schedule 2 chemicals (e.g., records on chemical production, processing, consumption, inventory, transfers, and other dispositions). All five of the facilities that responded to the voluntary survey indicated that they already use and maintain such records to prepare their declarations (in accordance with the requirements of the CWCR) and for other internal procedures. Based on the results of this survey, BIS determined that amending the CWCR to require declared chemical facilities to maintain and make available records for verifying the non-diversion of CWC Schedule 1 and Schedule 2 chemicals would not impose any additional burden or associated costs under the approved collection.

BIS also assessed the extent to which burden hours and associated costs under the approved collection (Control Number 0694-0091) would be affected by requiring facilities to provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year (i.e., up to and including the date of the inspection). BIS determined that there would be no additional burden or associated costs under the approved collection, as a result of this recordkeeping requirement, because facilities already maintained and provided access to such records in order to comply with the declaration, recordkeeping, and/or inspection requirements in the CWCR.

Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to David_Rostker@omb.eop.gov , or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulations, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration, that this final rule, if promulgated, would not have a significant economic impact on a substantial number of small entities for the reasons explained below. No comments were received on the economic impact of the rule. Consequently, BIS did not prepare a final regulatory flexibility analysis.

Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impact of this final rule on small entities, small entity is defined as: (1) A small business according to RFA default definitions for small business (based on SBA size standards), (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000, and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. BIS has determined that this final rule will affect only the first category of small entities (i.e., small businesses). The President reported to the Congress, in December 2003, as required under Section 309 of the CWC Implementation Act, that 297 U.S. companies representing 691 facilities, plant sites, and trading companies were subject to the declaration and reporting requirements under the Chemical Weapons Convention Regulations (CWCR). Although BIS estimates that the majority of these 297 companies are businesses that have more than 500 employees, BIS does not have sufficient information on these companies to definitively characterize them as large entities. The Small Business Administration (SBA) has established standards for what constitutes a small business, with respect to each of the Standard Industrial Classification (SIC) code categories for “Chemicals and Allied Products.” However, BIS is not able to determine which of these SIC code categories apply to the companies that are subject to the declaration, reporting, advance notification, recordkeeping or inspection requirements of this rule. Therefore, for the purpose of assessing the impact of this final rule, BIS assumes that the 297 companies are small entities.

The changes made by this final rule will not affect a substantial number of small entities. This final rule amends section 715.1(d) of the CWCR to add a new requirement for the submission of a Change in Inspection Status Form that applies to any “declared” UDOC plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR. These UDOC plant sites are required to submit a Change in Inspection Status Form to BIS, by December 15th of the current calendar year, in order to ensure that they will not be subject to inspection during the first 90 days of the next calendar year.

BIS estimates that, of the 691 facilities, plant sites, and trading companies that are affected by the declaration and reporting requirements of the CWCR per calendar year, 600 of these are unscheduled discrete organic chemical (UDOC) plant sites. Of these 600 UDOC plant sites, BIS estimates that no more than 6 UDOC plant sites per calendar year will be required to submit a Change in Inspection Status Form for the purpose of indicating that their annual UDOCs production will be below the inspection threshold level indicated in the CWCR. Since BIS can only estimate the total number of small entities per calendar year that are affected by the declaration and reporting requirements of the CWCR (i.e., 297 small entities, as indicated above), BIS must also estimate the number of small entities that own, operate, or otherwise control UDOC plant sites likely to be affected by this rule. Therefore, based on the estimate that only 6 UDOC plant sites (out of a total of 600 UDOC plant sites) will be required to submit a Change in Inspection Status Form each calendar year, BIS estimates, for the purpose of assessing the impact of this final rule, that no more than 6 small entities per calendar year will be affected by this new CWCR requirement. This estimate assumes that each UDOC plant site that will be affected by this final rule will be owned, operated, or otherwise controlled by a small entity. Since BIS estimates that no more than 6 small entities per calendar year will be affected by this new CWCR requirement, the requirement will not affect a substantial number of small entities.

Furthermore, the additional recordkeeping and reporting requirements imposed by this final rule will not have a significant economic impact on small entities. BIS estimates that the burden hours for completion and submission of the Change in Inspection Status Form will be 5.1 hours per respondent. The total annual burden hours for this additional collection of information are estimated to be 30.6 hours (i.e., 5.1 burden hours × 6 respondents). The estimated total annual cost of this additional collection of information for all affected entities will be $1,163 (30.6 burden hours × $38/hour). This estimate takes into consideration the fact that this rule provides certain “declared” UDOC plant sites (i.e., plant sites that anticipate producing one or more PSF chemicals during the current calendar year, in quantities that would require them to submit an Annual Declaration on Past Activities to BIS, but that would be below the CWCR inspection threshold level for UDOCs) with the option of submitting their Annual Declaration on Past Activities earlier than normally required (i.e., December 15th of the year in which the UDOC activities take place, instead of February 28th of the following year), in lieu of submitting a Change in Inspection Status Form. Based on these estimates, the total cost of these additional recordkeeping and reporting requirements will represent only a small percentage of the revenues generated by the affected companies.

Therefore, this final rule will not affect a substantial number of small entities (no more than 6 UDOC plant sites of an estimated 600, per annum) and the total economic impact on the affected entities ( i.e. , $1,163) will not be significant. Since the revisions that this rule makes to the CWCR will not impose a significant economic impact on a substantial number of small entities, BIS has not prepared a final regulatory flexibility analysis for this rule.

The Commission has determined, as part of its oversight responsibilities, to review its rules and guides periodically to seek information about their costs and benefits, as well as their regulatory and economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission.

Section 383 of the Energy Policy and Conservation Act of 1975 (“EPCA”), 42 U.S.C. 6363, mandated that the FTC promulgate a rule prescribing testing procedures and labeling standards for recycled oil. This section of EPCA is intended to encourage the recycling of used oil, promote the use of recycled oil, reduce consumption of new oil by promoting increased utilization of recycled oil, and reduce environmental hazards and wasteful practices associated with the disposal of used oil. 42 U.S.C. 6363(a).

EPCA also mandated that the National Institute of Standards and Technology (“NIST”) develop (and report to the FTC) test procedures to determine whether processed used oil is substantially equivalent to new oil for a particular end use. 42 U.S.C. 6363(c). Within 90 days after receiving NIST's test procedures, EPCA required that the FTC prescribe, by rule, substantial equivalency test procedures, as well as labeling standards for recycled oil. 42 U.S.C. 6363(d)(1)(A). EPCA also required that the Commission's rule permit any container of recycled oil to bear a label indicating any particular end use ( e.g. , engine lubricating oil), for which a determination of “substantial equivalency” with new oil has been made in accordance with the NIST test procedures. 42 U.S.C. 6363(d)(1)(B).

On July 27, 1995, NIST reported to the FTC test procedures for determining the substantial equivalence of processed used engine oil with new engine oil. The NIST test procedures and performance standards are the same as those adopted by the American Petroleum Institute (“API”) for engine lubricating oils generally, regardless of origin. The Rule, 16 CFR part 311, which was issued on October 31, 1995 (60 FR 55421), implements EPCA's requirements by permitting a manufacturer or other seller to “represent, * * * on a container of processed used oil, that such oil is substantially equivalent to new oil for use as engine oil only if the manufacturer has determined that the oil is substantially equivalent to new oil for use as engine oil” in accordance with the test procedures entitled “Engine Oil Licensing and Certification System,” American Petroleum Institute Publication 1509, Thirteenth Edition, January 1995. 1

The Commission has issued the following Order:

Commission Regulations governing the offer and sale of commodity futures and option contracts traded on or subject to the regulations of a foreign board of trade to customers located in the U.S. are contained in Part 30 of the Commission's regulations. 1 These regulations include requirements for intermediaries with respect to registration, disclosure, capital adequacy, protection of customer funds, recordkeeping and reporting, and sales practice and compliance procedures that are generally comparable to those applicable to transactions on U.S. markets.

In formulating a regulatory program to govern the offer and sale of foreign futures and option products to customers located in the U.S., the Commission, among other things, considered the desirability of ameliorating the potential extraterritorial impact of such a program and avoiding duplicative regulation of firms engaged in international business. Based upon these considerations, the Commission determined to permit persons located outside the U.S. the subject to a comparable regulatory structure in the jurisdiction in which they were located to seek an exemption from certain of the requirements under Part 30 of the Commission's regulations based upon substituted compliance with the regulatory requirements of the foreign jurisdiction.

Appendix A to Part 30 “Interpretative Statement With Respect to the Commission's Exemptive Authority Under § 30.10 of Its Rules” (Appendix A), generally sets forth the elements the Commission will evaluate in determining whether a particular regulatory program may be found to be comparable for purposes of exemptive relief pursuant to Regulation 30.10.  2 These elements include: (1) Registration, authorization or other form of licensing, fitness review or qualification of persons that solicit and accept customer orders; (2) minimum financial requirements for those persons that solicit and accept customer orders; (3) protection of customer funds from misapplication; (4) recordkeeping and reporting requirements; (5) sales practice standards; (6) procedures to audit for compliance with, and to take action against those persons who violate, the requirements of the program; and (7) information sharing arrangements between the Commission and the appropriate governmental and/or self-regulatory organization to ensure Commission access on an “as needed” basis to information essential to maintaining standards of customer and market protection within the U.S.

Moreover, the Commission specifically stated in adopting Regulation 30.10 that no exemption of a general nature would be granted unless the persons to whom the exemption is to be applied: (1) Submit to jurisdiction in the U.S. by designating an agent for service of process in the U.S. with respect to transactions subject to Part 30 and filing a copy of the agency agreement with the National Futures Association (NFA); (2) agree to provide access to their books and records in the U.S. to Commission and Department of Justice representatives; and (3) notify NFA of the commencement of business in the U.S. 3

On September 20, 2005, TAIFEX petitioned the Commission on behalf of its member firms, located and doing business in Taiwan, for an exemption from the application of the Commission's Part 30 Regulations to those firms. In support of its petition, TAIFEX states that granting such an exemption with respect to such firms that it has authorized to conduct foreign futures and option transactions on behalf of customers located in the U.S. would not be contrary to the public interest or to the purposes of the provisions from which the exemption is sought because such firms are subject to a regulatory framework comparable to that imposed by the Commodity Exchange Act (Act) and the regulations thereunder.

Based upon a review of the petition, supplementary materials filed by TAIFEX and the recommendation of the Commission's staff, the Commission has concluded that the standards for relief set forth in Regulation 30.10 and, in particular, Appendix A thereof, have been met and that compliance with applicable Taiwanese law and TAIFEX regulations may be substituted for compliance with those sections of the Act and regulations thereunder more particularly set forth herein.

By this Order, the Commission hereby exempts, subject to specified conditions, those firms identified to the Commission by TAIFEX as eligible for the relief granted herein from:

This determination to permit substituted compliance is based on, among other things, the Commission's finding that the regulatory framework governing persons in Taiwan who would be exempted hereunder provides:

Commission staff have concluded, upon review of the petition of TAIFEX and accompanying exhibits, that Taiwan's regulation of futures and options exchanges is comparable to that of the U.S. in the areas specified in Appendix A of Part 30, as described above.

This Order does not provide an exemption from any provision of the Act or regulations thereunder not specified herein, such as the antifraud provision in Regulation 30.9. Moreover, the relief granted is limited to brokerage activities undertaken on behalf of customers located in the U.S. with respect to transactions on or subject to the regulations of TAIFEX for products that customers located in the U.S. may trade. 4 The relief does not extend to regulations relating to trading, directly or indirectly, on U.S. exchanges. For example, a firm trading in U.S. markets for its own account would be subject to the Commission's large trader reporting requirements. 5 Similarly, if such a firm were carrying positions on a U.S. exchange on behalf of foreign clients and submitted such transactions for clearing on an omnibus basis through a firm registered as a futures commission merchant under the Act, it would be subject to the reporting requirements applicable to foreign brokers. 6 The relief herein is inapplicable where the firm solicits or accepts orders from customers located in the U.S. for transactions on U.S. markets. In that case, the firm must comply with all applicable U.S. laws and regulations, including the requirement to register in the appropriate capacity.

The eligibility of any firm to seek relief under this exemptive Order is subject to the following conditions:

(2) Each firm seeking relief hereunder must represent in writing that it:

As set forth in the Commission's September 11, 1997 Order delegating to NFA certain responsibilities, the written representations set forth in paragraph (2) shall be filed with NFA. 8 Each firm seeking relief hereunder has an ongoing obligation to notify NFA should there be a material change to any of the representations required in the firm's application for relief.

This Order will become effective as to any designated TAIFEX firm the later of the date of publication of the Order in the Federal Register or the filing of the consents set forth in paragraphs (2)(a)-(f). Upon filing of the notice required under paragraph (1)(b) as to any such firm, the relief granted by this Order may be suspended immediately as to that firm. That suspension will remain in effect pending further notice by the Commission, or the Commission's designee, to the firm and TAIFEX.

This Order is issued pursuant to Regulation 30.10 based on the representations made and supporting material provided to the Commission and the recommendation of the staff, and is made effective as to any firm granted relief hereunder based upon the filings and representations of such firms required hereunder. Any material changes or omissions in the facts and circumstances pursuant to which this Order is granted might require the Commission to reconsider its finding that the standards for relief set forth in Regulation 30.10 and, in particular, Appendix A, have been met. Further, if experience demonstrates that the continued effectiveness of this Order in general, or with respect to a particular firm, would be contrary to public policy or the public interest, or that the systems in place for the exchange of information or other circumstances do not warrant continuation of the exemptive relief granted herein, the Commission may condition, modify, suspend, terminate, withhold as to a specific firm, or otherwise restrict the exemptive relief granted in this Order, as appropriate, on its own motion.

The Commission will continue to monitor the implementation of its program to exempt firms located in jurisdictions generally deemed to have a comparable regulatory program from the application of certain of the foreign futures and option regulations and will make necessary adjustments if appropriate.

I. Background

On October 4, 2004, the Securities and Exchange Commission (“Commission”) adopted an amendment to Rule 19b-4  1 to require that Form 19b-4  2 be filed electronically on the Commission's Electronic Form 19b-4 Filing System (“EFFS”). 3 At the same time, the Commission amended Rule 101(a) of Regulation S-T  4 to mandate that Form 19b-4 be submitted to the Commission in electronic format and amended Rule 101(c)(9) of Regulation S-T to except Form 19b-4 from the requirement that filings submitted to the Division of Market Regulation be submitted in paper format. However, Regulation S-T only applies to electronic filings that are submitted on EDGAR, and Form 19b-4 is not submitted through EDGAR. As a result, Rules 101(a) and 101(c)(9) of Regulation S-T should not have been amended with respect to Form 19b-4. The Commission is making a technical amendment to remove the reference to Form 19b-4 in Rule 101(a) and to revise Rule 101(c)(9) to clarify that forms submitted for review by the Division of Market Regulation electronically, whether on EDGAR or on another electronic filing system such as EFFS, do not have to be submitted in paper format.

Additionally, the Commission is making a technical amendment to Rule 100 of Regulation S-T to include persons or entities that submit filings for review by the Division of Market Regulation as persons and entities that are subject to the electronic filing requirements of Regulation S-T. Because the EDGAR system was initially designed for the electronic submission of documents that are subject to review by the Divisions of Corporation Finance and Investment Management, Rule 100 currently only applies to registrants whose filings are submitted for review by those divisions and to such registrant's joint or third party filers. To reflect the fact that the Commission has recently added Forms 25, TA-1, TA-2, and TA-W, which are submitted for review by the Division of Market Regulation, to the list of mandated electronic filings in Section 101(a) of Regulation S-T, the Commission is amending Rule 100 to include the filers of any other forms that are submitted through EDGAR for review by the Division of Market Regulation as persons or entities that are subject to the electronic filing requirements of Regulation S-T.

The Commission is amending Rule 30-3 of the Rules of Organization and Program Management  5 to add new paragraphs (j) and (k) to delegate to the Director of the Division of Market Regulation authority to grant or deny a request submitted under Regulation S-T to adjust the filing date of an electronic filing and to grant or deny, as appropriate, a continuing hardship exemption to an electronic filer under Rule 202 of Regulation S-T. The delegation of authority to the Director of the Division of Market Regulation is designed to conserve Commission resources by permitting staff to adjust the filing date of an electronic filing and to grant or to deny exemptions where appropriate and in a timely manner. Nevertheless, the staff may submit matters to the Commission for consideration, as it deems appropriate. The Directors of the Divisions of Corporation Finance and of Investment Management have previously been delegated such authority. 6

Under the Administrative Procedure Act (“APA”), notice of proposed rulemaking is not required “(A) [for] interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  7 The Commission is making technical amendments to Regulation S-T to correct Rule 101 and to make a conforming change to Rule 100 with respect to forms submitted for review by the Division of Market Regulation and therefore, notice and public procedure is unnecessary. Specifically, Rule 101(a) is being amended to remove the reference to Form 19b-4 and Rule 101(c) is being amended to clarify that only forms which are not submitted electronically are required to be filed in paper. Additionally, Rule 100 is being amended to add a new paragraph (d) which will define filers whose filings are subject to review by the Division of Market Regulation as persons or entities that are subject to Regulation S-T. The amendment reflects the fact that the Commission currently mandates that Forms 25, TA-1, TA-2, and TA-W be filed electronically on EDGAR and that the filers of these forms should be (and probably believe that they are) subject to the requirements and protections of Regulation S-T. For these reasons, the Commission finds that publishing the changes for comment is unnecessary. 8 The amendment to Rule 30-3 of the Commission's Rules of Organization and Program Management relates solely to agency organization, procedure, or practice. As such, notice of proposed rulemaking is not required.

The Commission is adopting amendments § 200.30-3 under the authority set forth in sections 4A(a) and 23(a) of the Securities Exchange Act. 9 The Commission is adopting amendments to Regulation S-T under authority set forth in sections 19(a) of the Securities Act and 23(a) of the Securities Exchange Act. 10 The amendments to § 200.30-3 and to Regulation S-T are adopted under Chapter II of Title 17 of the Code of Federal Regulations in the manner set forth below.

The BNSF Railway Company has requested a temporary deviation in order to replace the railroad signal circuits of the BNSF Railway Railroad Vertical Lift Span Bridge across Berwick Bay, mile 0.4 (Atchafalaya River, mile 17.5) at Morgan City, St. Mary Parish, Louisiana. Replacement of the signal circuits is necessary to turn the lining of signals across the bridge into a fully automatic operation so that the bridge will be in full compliance with requirements of the Federal Railroad Administration. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 8 a.m. until 8 p.m. on Thursday, June 14, 2007. The proposed work was previously scheduled for Wednesday, December 13, 2006 and Wednesday, February 7, 2007, but had to be postponed. The bridge owner is now prepared to complete the work and has coordinated the closure with all departments within the railroad. There may be times, during the closure period, when the draw will not be able to open for emergencies.

The bridge provides 4 feet of vertical clearance in the closed-to-navigation position. Thus, most vessels will not be able to transit through the bridge site when the bridge is closed. Navigation on the waterway consists of tugs with tows, fishing vessels and recreational craft including sailboats and powerboats. Due to prior experience, as well as coordination with waterway users, it has been determined that this closure will not have a significant effect on these vessels.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This temporary rule is designed to insure that marine navigation of the Trenton Channel is maintained throughout the entire period of Grosse Ile (Free) Bridge rehabilitation (seven months). Dates for the rehabilitation project were just submitted by the bridge owner. Providing notice and comment would mean that this temporary final rule would not be issued in advance of the project beginning, which is contrary to the public interest.

Under 5 U.S.C. 553(d)(3), and for the same reason cited above, the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register .

Grosse Ile, an island in the Detroit River, is a suburb of the City of Detroit, Michigan. Most residents are employed off-island and must traverse one of the two bridges that connect the island to the mainland. “Rush hour” traffic is extremely heavy. The U.S. Coast Guard, at the request of the Manager of Grosse Ile Township and Congressional and State Representatives, is modifying the operation of the Grosse Ile Toll (swing) Bridge during the period of time that the Grosse Ile “Free” Bridge will be out of service due to scheduled rehabilitation. The modified operations will limit the number of bridge openings for the Grosse Ile Toll Bridge resulting in fewer interruptions for vehicular traffic particularly during the morning and afternoon “rush hours”. Bridge logs reveal that the Toll Bridge is required to open (on average) 150 times per month for recreational vehicles and an additional 11 times per month for commercial vessels. The current regulations for Grosse Ile Toll Bridge at Mile 8.80 over the Trenton Channel are defined in 33 CFR 117.631:

(1) Between the hours of 7 a.m. and 11 p.m., seven days a week and holidays, the draw need open only from three minutes before to three minutes after the hour and half-hour for pleasure craft; for commercial vessels, during this period of time, the draw shall open on signal as soon as possible.

(2) Between the hours of 11 p.m. and 7 a.m., the draw shall open on signal for pleasure craft and commercial vessels.

The modified regulations for the Grosse Ile Toll Bridge at Mile 8.80 over the Trenton Channel shall be:

Weekdays:

The bridge will not be required to open during “rush hours” defined as between 6 a.m. and 9 a.m. and between 3:30 p.m. and 6:30 p.m.

At all other times, the bridge is required to make one opening per hour for recreational vessels (if necessary) from three minutes before until three minutes after the hour.

Except during defined “rush hours”, the bridge must open for commercial vessels upon signal.

Weekends:

The bridge shall open once per hour for recreational vessels (if necessary) from three minutes before until three minutes after the hour.

At all times during weekends and holidays, the bridge must open for commercial vessels upon signal.

Currently, the Grosse Ile Toll Bridge accommodates approximately 9,000 vehicle crossings per day and the Grosse Ile County (Free) Bridge accommodates 23,000 vehicle crossings per day. From April 18 until December 15, 2007, the “Free” Bridge will be rehabilitated and closed to vehicular traffic. Consequently, during this period, all vehicular traffic on and off Grosse Ile will only be able to use the Toll Bridge. Thus, estimated traffic volume will be 32,000 vehicles per day. The modified bridge regulations will provide for better accommodation of the increased volume of vehicular traffic.

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. No significant impact is expected because vessels will not be prohibited from transit past the bridge. The navigable waterway, although further restricted, will not be closed.

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

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

Marine transit along this navigable waterway of the United States will not be halted, although owners or operators of recreational and/or commercial vessels intending to transit or anchor in a portion of the Trenton Channel during the periods modified by this temporary rule may encounter short delays.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

Bridges.

On December 1, 2006, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Chesapeake Bay, Between Sandy Point and Kent Island, MD” in the Federal Register (71 FR 69514). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

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

In this particular rulemaking, to address the aforementioned security concerns during the highly-publicized public event, and to take steps to prevent the catastrophic impact that a terrorist attack against a large number of participants during the annual Bay Bridge Walk would have on the public interest, the Captain of the Port, Baltimore, Maryland is establishing a security zone upon all waters of the Chesapeake Bay, within 250 yards north of the north (westbound) span of the William P. Lane Jr. Memorial Bridge, and 250 yards south of the south (eastbound) span of the William P. Lane Jr. Memorial Bridge, from the western shore at Sandy Point to the eastern shore at Kent Island, Maryland. This security zone will help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against a large number of participants during the event. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on the Chesapeake Bay Bridge during the annual Bay Bridge Walk would have on the large number of participants, and the surrounding area and communities, a security zone is prudent for this type of event.

The Coast Guard received no comments on the proposed rule during the comment period published in the NPRM. No public meeting was requested and none was held. As a result, no change to the proposed regulatory text was made.

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.

The operational restrictions of the security zone are tailored to provide the minimal disruption of vessel operations necessary to provide immediate, improved security for persons, vessels, and the waters of the Chesapeake Bay, within 250 yards of the William P. Lane Jr. Memorial Bridge, located between Sandy Point and Kent Island, Maryland. Additionally, this security zone is temporary in nature and any hardship experienced by persons or vessels are outweighed by the national interest in protecting the public at large from the devastating consequences of acts of terrorism, and from sabotage or other subversive acts, accidents, or other causes of a similar nature.

The Coast Guard received no comments on this aspect of the proposed rule during the comment period published in the NPRM. As a result, no change to the proposed regulatory text was made.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities: the owners or operators of vessels intending to operate, remain or anchor within 250 yards of the William P. Lane Jr. Memorial Bridge, located between Sandy Point and Kent Island, Maryland. This security zone will not have a significant economic impact on a substantial number of small entities because vessels desiring to transit through the security zone without loitering or those vessels with compelling interests to remain in the zone may seek authorization to enter the security zone from the Captain of the Port. Before the enforcement period, the Coast Guard will issue maritime advisories widely available to users of the Chesapeake Bay.

The Coast Guard received no comments on this aspect of the proposed rule during the comment period published in the NPRM. As a result, no change to the proposed regulatory text was made.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. However, we received no requests for assistance from any small entities.

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

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

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

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

This rule will not 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 does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

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

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

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

National ambient air quality standards (NAAQS) are thresholds for certain ambient air pollutants set by EPA under the Clean Air Act (CAA or “Act”) to protect public health and welfare. Particulate matter with an aerodynamic diameter less than or equal to 10 micrometers, or PM 10 , is the subject of this action. PM 10 is among the ambient air pollutants for which EPA has established NAAQS. PM 10 causes adverse health effects by penetrating deep in the lungs, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable.

In 1971, EPA promulgated the first NAAQS for particulate matter (PM) and defined the standard in terms of an indicator referred to as “total suspended particulate,” or “TSP,” which roughly included all particles with diameters of 30 microns or less. In 1987, EPA established new PM NAAQS and defined the new standards in terms of PM 10 instead of TSP. See 52 FR 24634 (July 1, 1987). Ten years later, in 1997, EPA established another PM NAAQS and defined this new standard in terms of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers, or PM 2.5 , but in our 1997 final rule, we decided to retain a PM 10 NAAQS as well. See 62 FR 38652 (July 18, 1997). In 2006, EPA completed a review of both the PM 2.5 NAAQS and PM 10 NAAQS and, among other actions, decided to retain the 24-hour-average PM 10 standard at its current level but to revoke the annual-average PM 10 standard. See 71 FR 61144 (October 17, 2006). The level of the primary ( i.e. , public health) PM 10 standard is 150 micrograms per cubic meter (μg/m  3 ), 24-hour average concentration. 1 See 40 CFR 50.6. The secondary PM 10 standard, promulgated to protect against adverse welfare effects, is identical to the primary standard.

Under the Clean Air Act Amendments of 1977, and due to recorded violations of the former TSP-defined NAAQS and the location of major industrial sources, EPA designated one township in each of the Hayden and Miami areas as separate nonattainment areas for TSP (44 FR 21261, April 10, 1979, as corrected at 44 FR 53081, September 12, 1979). 2 As noted above, in 1987, we revised the PM NAAQS to include only particulate matter of a size range less than or equal to a nominal 10 microns (PM 10 ). As part of the implementation policy for the new standards, where insufficient PM 10 data were available, EPA categorized areas based on their probability of violating the standard using TSP data. The categories were: Group I, areas with a high probability of violating the standards; Group II, areas with a moderate probability of violating; and Group III, areas that were likely to be attaining the standards.

In 1987, EPA identified the “Hayden/Miami area” as one of the Group I areas for PM 10 . See 52 FR 29383 (August 7, 1987). In a 1990 clarification, we defined the geographic area of the combined Hayden/Miami Group I area as including all or part of 26 contiguous townships in and around the towns of Hayden and Miami (55 FR 45799, October 31, 1990). 3

Subsequent to our 1990 clarification and upon enactment of the Clean Air Act Amendments of 1990, all “Group I” areas, such as the Hayden/Miami planning area, were designated as “nonattainment” for the PM 10 NAAQS by operation of law and classified as “moderate.” See CAA sections 107(d)(4)(B) and 188(a). In March 1991, EPA announced the designations and classifications of areas with respect to PM 10 NAAQS that occurred by operation of law upon enactment of the 1990 Amendments to the CAA. See 56 FR 11101 (March 15, 1991). In August 1991, EPA rejected challenges made by the State of Arizona and industry to the geographic size of the Hayden/Miami PM 10 nonattainment area. See 56 FR 37654 (August 8, 1991). Later that same year, we codified the PM 10 nonattainment designations and moderate area classifications in 40 CFR part 81. See 56 FR 56694 (November 6, 1991). For “moderate” nonattainment areas such as the Hayden/Miami PM 10 nonattainment area, CAA section 188(c) of the 1990 Amended Act establishes an attainment date of December 31, 1994.

Along with the new designations, classifications, and attainment dates, the CAA as amended in 1990 also established new planning requirements. In accordance with section 189(a) of the CAA, Arizona was required to submit a state implementation plan (SIP) revision by November 15, 1991 demonstrating attainment of the PM 10 standards and providing for implementation of reasonably available control measures (RACM) by December 31, 1994 for the Hayden/Miami area. The State of Arizona relied upon a SIP revision (“Final PM-10 State Implementation Plan for the Hayden Group I Area” dated September 1989) that it had submitted on October 16, 1989 to meet the requirements of the CAA as amended in 1990 for “moderate” PM 10 nonattainment areas.

In 1994, we proposed a limited approval and limited disapproval of Arizona's 1989 SIP revision. See 59 FR 36116 (July 15, 1994). The primary reason for the proposed limited disapproval was that the plan addressed only the Hayden portion of the Hayden/Miami PM 10 nonattainment area. In response, by letter dated November 10, 1994, the Governor's designee for CAA matters, the Arizona Department of Environmental Quality (ADEQ), submitted a formal petition for rulemaking to realign the Hayden/Miami PM 10 nonattainment area boundary. Specifically, ADEQ requested that EPA correct the purported error the Agency had made in including the Miami area in the original Group I area in 1987 and called for exclusion of the northern third of the area ( i.e. , the Miami portion) from the nonattainment area. We have not taken final action on our 1994 proposed limited approval/limited disapproval of ADEQ's 1989 SIP revision. In today's direct final rule, we again are taking no action on ADEQ's 1989 SIP revision but will address applicable CAA requirements for the Hayden area in a future rulemaking. For the Miami area, in this direct final rule, we are making an attainment finding and a determination regarding applicability of certain CAA requirements (see section III, below).

On June 20, 2006, under CAA section 107(d)(3)(D), ADEQ submitted a request for a boundary redesignation of the Hayden/Miami PM 10 nonattainment area to EPA for approval. In contrast with ADEQ's 1994 petition, ADEQ's 2006 boundary redesignation would not reduce the overall size of the area designated as nonattainment for PM 10 but would simply divide a single PM 10 nonattainment area into two PM 10 nonattainment areas. We consider ADEQ's June 20, 2006 boundary redesignation (discussed in the following section of this direct final rule) to supersede the State's 1994 petition and thus plan no further action on that earlier request.

On June 20, 2006, ADEQ submitted to EPA under CAA section 107(d)(3)(D) a request for a boundary redesignation of the Hayden/Miami PM 10 nonattainment area into two separate, but adjoining, PM 10 nonattainment areas, namely, the Hayden nonattainment area and the Miami nonattainment area. ADEQ enclosed a technical justification report entitled, “Request to Revise the Hayden/Miami PM 10 Nonattainment Area Boundary” (May 2006), in support of this boundary redesignation. ADEQ's technical justification report includes a discussion of the regulatory background and the topographical and meteorological characteristics of the Hayden and Miami areas. The report also includes tables summarizing emission inventory and ambient air quality data and maps showing the existing nonattainment area boundaries, topographical features, the locations of permitted emissions sources, and the boundary delineating the new Miami and Hayden PM 10 nonattainment areas. Together, these two new PM 10 nonattainment areas would cover the same geographic area as the original Hayden/Miami PM 10 nonattainment area. ADEQ's boundary separating the Miami and Hayden PM 10 areas runs east-west in steps using township and section identifiers to roughly trace the ridgeline of the Pinal Mountains.

Under section 107(d)(3)(D) of the CAA, the Governor of any State may, on the Governor's own motion, submit to EPA a revised designation of any area or portion thereof within the State. 4 EPA is required to approve or deny a submittal for redesignation within 18 months of receipt. The type of redesignation that ADEQ submitted on June 20, 2006 involves just a boundary change and does not involve a change in status ( i.e. , does not involve a change from “nonattainment,” for example, to “attainment” or “unclassifiable”) of any area. In this notice, we refer to the former type of redesignation as a “boundary redesignation.”

In determining whether to approve or deny a State's submittal of a boundary redesignation under section 107(d)(3)(D), EPA uses the same factors Congress directed EPA to consider when the Agency initiates a revision to a designation of an area on its own motion under section 107(d)(3)(A). These factors include “air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” See CAA section 107(d)(3)(A). In addition, because ADEQ's redesignation involves a nonattainment area, we also take into account CAA section 107(d)(1)(A), which provides that nonattainment areas are to include the geographic area that does not meet, or that contributes to ambient air quality in a nearby area that does not meet, the NAAQS for a given pollutant.

We have reviewed and evaluated ADEQ's technical justification report and conclude that ADEQ has adequately demonstrated that the Miami and Hayden PM 10 nonattainment areas lie in separate airsheds in which air quality is determined by topographical and meteorological factors and local emissions sources specific to each airshed with no significant PM 10 transport between the two areas. We also conclude that ADEQ's division of the two areas essentially along the ridgeline of the Pinal Mountains follows logically from the identification of these separate airsheds. As such, each new PM 10 nonattainment area encompasses the geographic area of historic PM 10 (or, in the case of Miami, TSP) NAAQS violations as well as the sources which contributed to those violations. Therefore, we are approving the State's boundary redesignation of the Hayden/Miami PM 10 nonattainment area and are thereby establishing separate Hayden and Miami PM 10 nonattainment areas. We provide further detail on our evaluation in the paragraphs that follow.

As noted previously, the Hayden/Miami PM 10 nonattainment area is located in east central Arizona. The town of Hayden is situated in the southern portion of the nonattainment area, approximately 27 miles south of the town of Miami, which is located in the northern portion of the nonattainment area. Between the two towns lie the predominant geographic features of the nonattainment area: the Pinal, Mescal, and Dripping Spring Mountain ranges.

Airsheds refer to areas with common weather or meteorological conditions and sources of air pollution. Generally speaking, an airshed contains source and receptor areas. The Pinal and Mescal Mountains, the highest of the three mountain ranges in this area, form a boundary between the Lower Salt River Airshed and the Gila River Airshed. These two interconnecting ranges separate the southern or Hayden portion of the nonattainment area from the northern or Miami portion. Figure 1 in the State's technical justification report illustrates the topographical features in the region.

Elevations in the Pinal and Mescal Mountains are well over 5,000 feet above sea level with numerous peaks above 6,000 feet. Pinal Peak is the highest point at 7,848 feet. Elevational differences between lower elevations in the southern portion of the nonattainment area and the airshed boundary (i.e., the ridgeline of the Pinal Mountains) generally range between 4,000 and 6,000 feet. Elevational differences between the northern portion of the nonattainment area and the airshed boundary (ridgeline of the Pinal Mountains) generally range between 2,000 and 4,000 feet.

The speed and direction of air pollutant transport in both the Lower Salt River Airshed (Miami area) and the Gila River Airshed (Hayden area) are greatly influenced by local topography. Both airsheds contain extensive areas of complex terrain that is responsible for complicated wind patterns.

Hayden is located in a relatively narrow portion of the Gila River valley, immediately downstream from the confluence of the Gila and San Pedro Rivers. The Dripping Spring Mountains are located northeast of Hayden. In ADEQ's technical justification report, wind patterns in Hayden, where a number of stationary sources are located, are described as distinctly up-valley/down-valley. Such patterns are typical of mountainous areas, and are characterized by up-valley or up-slope flows during the day and down-valley or down-slope winds during the night. ADEQ notes that low southeasterly winds in the Gila River valley from nighttime down-slope or drainage flow can combine with stable atmospheric conditions to cause elevated pollutant concentrations within low lying areas. Up-slope convection during the day increases dispersion and flow out of the low lying areas. Under normal daytime conditions, surface winds become west-southwesterly to west-northwesterly (up-valley) in the Hayden area, replacing nighttime down-slope winds as the atmosphere becomes less stable. This pattern is repeated locally throughout much of the complex terrain found in the southern portion of the Hayden/Miami PM 10 nonattainment area.

Due to widespread areas of complex terrain, a similar up-valley/down-valley pattern is found throughout much of the northern portion of the Hayden/Miami PM 10 nonattainment area, where Miami is located. Miami is located along U.S. Highway 60 in a steep canyon of the Pinal Mountains. As described for Hayden, Miami is similarly influenced by up-slope/down-slope wind patterns. Generally, the Miami area exhibits a diurnal pattern of having a stronger average easterly component to nighttime airflow with a westerly component evident during the day.

ADEQ's technical justification report notes that stronger regional air flow can at times override local patterns and overcome elevational differences, and that, under these conditions, direction of flow can vary. However, ADEQ notes also that mixing, dispersion, and dilution of emissions are increased under these conditions, especially with distance. Thus, localized complex terrain windflow patterns are the primary forces affecting dispersion from sources within each of the Hayden and Miami areas. We agree with ADEQ's conclusion that the greater emissions impacts are local, and any cross-airshed boundary contributions that may occur are minimal relative to local impacts.

The topographical and meteorological characteristics described above support the conclusion that Hayden and Miami lie in separate airsheds with minimal PM 10 pollutant transport between the two. However, ADEQ also provides information on the locations and magnitude of permitted PM 10 sources in the two areas that lends further support to this conclusion.

ADEQ notes that the majority of permitted sources in the Hayden/Miami PM 10 nonattainment area are associated with mining and smelting activities. These sources are located primarily in the extreme south and north of the Hayden/Miami nonattainment area near the two mining towns, Hayden and Miami. 5 Hayden area sources are clustered primarily in lower elevation areas in the southern portion of the nonattainment area, south of the Township 2 South/Township 3 South boundary. Miami area sources are located generally north of the Township 1 North/Township 1 South line. The central portion of the nonattainment area, dominated by the Pinal and Mescal Mountain ranges that divide the lower elevation areas to the north and south, contains no permitted stationary sources. This buffer between the two concentrations of emissions sources to the south and north further minimizes the possibility of significant PM 10 pollutant transport between the Hayden and Miami areas.

ADEQ notes that dividing the single PM 10 nonattainment area into two areas would facilitate air quality management by enabling separate analyses that reflect local air transport patterns and the development of control strategies and planning processes specific to each area. While we find that the existence of a single PM 10 air quality planning area does not preclude separate analyses and development of subarea-specific control strategies, we do recognize that dividing the single area into two would allow for de-coupling of the air quality planning processes for the Hayden and Miami areas, thereby allowing one of the two areas to seek redesignation and to begin the maintenance phase of CAA planning sooner than might otherwise be possible.

Based on our review of ADEQ's technical justification report and other available information, we find that ADEQ has sufficiently demonstrated that the Miami and Hayden areas lie in separate airsheds in which local topographical and meteorological factors and local emissions sources determine ambient PM 10 conditions and between which PM 10 pollutant transport is minimal. The concentration of PM 10 emissions sources to the south and north ends of the Hayden/Miami PM 10 nonattainment area adds separation distance to the list of factors that minimize the potential for PM 10 pollutant transport between the Miami and Hayden areas. We also find that dividing the single area into two would be beneficial from a planning perspective by allowing one of the areas to proceed to the maintenance phase of air quality planning under the CAA sooner than might otherwise be possible. 6

In approving ADEQ's boundary redesignation of the Hayden/Miami PM 10 nonattainment area into two areas, we approve ADEQ's boundary, which roughly traces the ridgeline of the Pinal Mountains.

The new Miami PM 10 nonattainment area encompasses all or part of the following seven townships: T1N, R13E; T1N, R14E; T1N, R15E; T1S, R13E (sections 1-6); T1S, R14E (sections 1-24); T1S, R14 1/2 E; and T1S, R15E. The new Hayden PM 10 nonattainment area encompasses all or part of the following 21 townships: T1S, R13E (sections 7-36); T1S, R14E (sections 25-36); T2S, R13E; T2S, R14E; T2S, R15E; T3S, R13E; T3S, R14E; T3S, R15E; T3S, R16E (except that portion in the San Carlos Indian Reservation); T4S, R13E; T4S, R14E; T4S, R15E; T4S, R16E; T5S, R13E; T5S, R14E; T5S, R15E; T5S, R16E; T6S, R13E; T6S, R14E; T6S, R15E; and T6S, R16E.

Together, the two new PM 10 nonattainment areas cover the same geographic area as the original Hayden/Miami PM 10 nonattainment area. Both of the new PM 10 nonattainment areas retain the “moderate” classification associated with the Hayden/Miami PM 10 nonattainment area.

Generally, we will determine whether an area's air quality meets the PM 10 NAAQS based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations (NAMS) in the nonattainment area and entered into EPA's Air Quality System (AQS) database. Data entered into AQS have been determined to meet Federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area, such as Special Purpose Monitors (SPM), some of which are run by industrial sources, provided that the stations meet the Federal monitoring requirements for SLAMS and that the data is publicly available. 7 All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K.

Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM 10 concentrations greater than 150 μg/m 3 . The 24-hour standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three-year period) is less than or equal to one. Three consecutive years of air quality data are necessary to show attainment of the PM 10 NAAQS. See 40 CFR part 50, appendix K. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is composed of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days.

Beginning in 1987, PM 10 has been monitored at seven different sites in the Miami area. ADEQ operated some of these PM 10 monitoring sites and the owner and operator of the primary copper smelter ( i.e. , Phelps-Dodge Miami, Inc. or “Phelps-Dodge”), which is the largest single industrial source of emissions in the area, operated others. Different monitoring locations were selected in an effort to locate the maximum PM 10 impacts from the smelter. Since 1991, two monitors have remained at their current locations: the Golf Course monitor and the Ridgeline monitor. Both are operated by Phelps-Dodge and are considered Special Purpose Monitors (SPMs). ADEQ ended PM 10 monitoring at its Nolan Ranch site (also known as “Miami South” or “Jones Ranch”) in 1994 and no longer operates any PM 10 monitor in the Miami area. No violations of the PM 10 NAAQS have been monitored at any of the seven monitoring sites in the Miami area since monitoring began in 1987.

The PM 10 data collected by Phelps-Dodge at the two SPMs ( i.e. , the Golf Course and Ridgeline sites) are not normally certified by ADEQ and entered into AQS, but to provide for this attainment finding, ADEQ worked with Phelps-Dodge to certify PM 10 monitoring data collected over the past several years and to enter the certified data into AQS. Table 1 provides a summary of the data collected at the Golf Course and Ridgeline sites during the 2003-2005 period.

Phelps-Dodge collected the PM 10 data shown in Table 1 below using Graseby-Anderson Dichotomous samplers, devices designated by EPA as a manual reference method sampler. The samplers operated on an approved operating schedule of once every six days and the data sets meet EPA requirements for 75 percent data capture as discussed in 40 CFR 50, appendix K. ADEQ has reviewed the operation and maintenance records for these monitors and has certified that the data collected by Phelps-Dodge meets EPA's quality assurance requirements.

As noted above, the 24-hour PM 10 standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three-year period) is less than or equal to one. Based on the data summarized in table 1, above, we find no exceedances of the 24-hour PM 10 standard for the 2003 to 2005 period and thus the expected number of days with levels above 150 μg/m 3 (averaged over that three-year period) is zero. As such, we find that Miami is attaining the 24-hour PM 10 NAAQS.

The air quality planning requirements for moderate PM 10 nonattainment areas, such as the Miami PM 10 nonattainment area, are set out in part D, subparts 1 and 4 of title I of the Act. We have issued guidance in a General Preamble  8 describing how we will review SIPs and SIP revisions submitted under title I of the Act, including those containing moderate PM 10 nonattainment area SIP provisions.

In some designated nonattainment areas, monitored data demonstrates that the NAAQS has already been achieved. Based on its interpretation of the Act, EPA has determined that certain requirements of part D, subparts 1 and 2 (of title I) of the Act do not apply and therefore do not require certain submissions for an area that has attained the NAAQS. These include reasonable further progress (RFP) requirements, attainment demonstrations and contingency measures, because these provisions have the purpose of helping achieve attainment of the NAAQS.

EPA's Clean Data Policy is the subject of two memoranda setting forth our interpretation of the provisions of the Act as they apply to areas that have attained the relevant NAAQS. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part of its “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71645-71646 (November 29, 2005). EPA believes that the legal bases set forth in detail in our Phase 2 Final Rule; our May 10, 1995 memorandum from John S. Seitz, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (Seitz memo); and our December 14, 2004 memorandum from Stephen D. Page entitled “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (Page memo) are equally pertinent to the interpretation of provisions of subparts 1 and 4 applicable to PM 10 . EPA's interpretation of how the provisions of the Act apply to areas with “clean data” is not logically limited to ozone and PM 2.5 , because the rationale is not dependent upon the type of pollutant. Our interpretation that an area that is attaining the standard is relieved of obligations to demonstrate RFP and to provide an attainment demonstration and contingency measures pursuant to part D of the CAA, pertains whether the standard is PM 10 , ozone, or PM 2.5 .

The reasons for relieving an area that has attained the relevant standard of certain part D, subparts 1 and 2 obligations, applies equally to part D, subpart 4, which contains specific attainment demonstration and RFP provisions for PM 10 nonattainment areas. As we have explained in the Phase 2 Final Rule and our ozone and PM 2.5 clean data memoranda, EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions if an area subject to those requirements is already attaining the NAAQS ( i.e. , attainment of the NAAQS is demonstrated with three consecutive years of complete, quality- assured air quality monitoring data). Three U.S. Circuit Courts of Appeals have upheld EPA rulemakings applying its interpretation of subparts 1 and 2 with respect to ozone. Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion). It has been EPA's longstanding interpretation that the general provisions of part D, subpart 1 of the Act (sections 171 and 172) do not require the submission of SIP revisions concerning RFP for areas already attaining the ozone NAAQS. In the General Preamble, we stated:

EPA believes the same reasoning applies to the PM 10 provisions of part D, subpart 4.

With respect to RFP, section 171(1) states that, for purposes of part D of title I, RFP “means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.” Thus, whether dealing with the general RFP requirement of section 172(c)(2), the ozone-specific RFP requirements of sections 182(b) and (c), or the specific RFP requirements for PM 10 areas of part D, subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure attainment by the applicable attainment date. Section 189(c)(1) states that:

Although this section states that revisions shall contain milestones which are to be achieved until the area is redesignated to attainment, such milestones are designed to show reasonable further progress “toward attainment by the applicable attainment date”, as defined by section 171. Thus, it is clear that once the area has attained the standard, no further milestones are necessary or meaningful. This interpretation is supported by language in section 189(c)(3), which mandates that a state that fails to achieve a milestone must submit a plan that assures that the state will achieve the next milestone or attain the NAAQS if there is no next milestone. Section 189(c)(3) assumes that the requirement to submit and achieve milestones does not continue after attainment of the NAAQS.

In the General Preamble, we noted with respect to section 189(c) that “the purpose of the milestone requirement is to ‘provide for emission reductions adequate to achieve the standards by the applicable attainment date' (H.R. Rep. No. 490 101st Cong., 2d Sess. 267 (1990)).” 57 FR 13539 (April 16, 1992). If an area has in fact attained the standard, the stated purpose of the RFP requirement will have already been fulfilled. 9 EPA took this position with respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the May 10, 1995 memorandum with respect to the requirements of sections 182(b) and (c). We are extending that interpretation to the specific provisions of part D, subpart 4. In the General Preamble, we stated, in the context of a discussion of the requirements applicable to the evaluation of requests to redesignate nonattainment areas to attainment, that the “requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point.” (57 FR 13564). See also our September 4, 1992 memorandum from John Calcagni, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (Calcagni memo), p. 6.

Similarly, the requirements of section 189(c)(2) with respect to milestones no longer apply so long as an area has attained the standard. Section 189(c)(2) provides in relevant part that:

Where the area has attained the standard and there are no further milestones, there is no further requirement to make a submission showing that such milestones have been met. As noted above, this is consistent with the position that EPA took with respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the May 10, 1995 Seitz memorandum with respect to the requirements of section 182(b) and (c). In the May 10, 1995 Seitz memorandum, EPA also noted that section 182(g), the milestone requirement of Subpart 2, which is analogous to provisions in section 189(c), is suspended upon a determination that an area has attained. The memorandum, also citing additional provisions related to attainment demonstration and RFP requirements, stated:

With respect to the attainment demonstration requirements of section 189(a)(1)(B), an analogous rationale leads to the same result. Section 189(a)(1)(B) requires that the plan provide for “a demonstration (including air quality modeling) that the [SIP] will provide for attainment by the applicable attainment date * * *.” As with the RFP requirements, if an area is already monitoring attainment of the standard, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of the section 172(c) requirements provided by EPA in the General Preamble, the Page memo, and the section 182(b) and (c) requirements set forth in the Seitz memo. As EPA stated in the General Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached.” (57 FR at 13564).

Other SIP submission requirements are linked with these attainment demonstration and RFP requirements, and similar reasoning applies to them. These requirements include the contingency measure requirements of sections 172(c)(9) and 182(c)(9). We have interpreted the contingency measure requirements of sections 172(c)(9) and 182(c)(9) as no longer applying when an area has attained the standard because those “contingency measures are directed at ensuring RFP and attainment by the applicable date.” (57 FR at 13564); Seitz memo, pp. 5-6.

Both sections 172(c)(1) and 189(a)(1)(C) require “provisions to assure that reasonably available control measures” ( i.e. , RACM) are implemented in a nonattainment area. The General Preamble, 57 FR at 13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so that RACM requirements are a “component” of an area's attainment demonstration. Thus, for the same reason the attainment demonstration no longer applies by its own terms, the requirement for RACM no longer applies. EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could contribute to reasonable further progress or to attainment. General Preamble, 57 FR at 13498. Thus, where an area is already attaining the standard, no additional RACM measures are required. 10 EPA is interpreting section 189(a)(1)(C) consistent with its interpretation of section 172(c)(1).

Here, as in both our Phase 2 Final Rule and ozone and PM 2.5 clean data memoranda, we emphasize that the suspension of a requirement to submit SIP revisions concerning these RFP, attainment demonstration, RACM, and other related requirements exists only for as long as a nonattainment area continues to monitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the requirements being suspended would no longer exist. Therefore, the area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need not submit one of the SIP submittals amounts to no more than a suspension of the requirements for so long as the area continues to attain the standard. However, once EPA ultimately redesignates the area to attainment, the area will be entirely relieved of these requirements to the extent the maintenance plan for the area does not rely on them.

Therefore, we believe that, for the reasons set forth here and established in our prior “clean data” memoranda and rulemakings, a PM 10 nonattainment area that has “clean data,” should be relieved of the part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), and the RFP provisions established by section 189(c)(1) of the Act, as well as the aforementioned attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. 11

Should EPA at some future time determine that an area that had clean data, but which has not yet been redesignated as attainment for a NAAQS, has violated the relevant standard, the area would again be required to submit the pertinent requirements under the SIP for the area. Attainment determinations under the policy do not shield an area from other required actions, such as provisions to address pollution transport.

As set forth above, EPA finds that because the Miami area is attaining the PM 10 NAAQS, the requirement of an attainment demonstration, reasonable further progress, reasonably available control measures and contingency measures no longer applies for so long as the area continues to monitor attainment of the PM 10 NAAQS. 12

This determination is contingent on the existence of monitoring data showing continued attainment of the PM 10 NAAQS in the Miami area. Normally, we would simply rely on the continuation of a State's or local air district's monitoring network to provide the data necessary for the public and EPA to verify continued attainment because a State or local air district administering such a network must, under applicable Federal regulations, use reference methods, meet quality assurance requirements, and enter data periodically into AQS.

In the Miami area, however, the only monitors collecting PM 10 data are Special Purpose Monitors (SPMs) run by Phelps-Dodge. Historically, these data have not been submitted to the State for certification and subsequent entry into EPA's Air Quality System (AQS) database. Thus, we have requested that ADEQ provide us with evidence that ADEQ and Phelps-Dodge ensure that PM 10 data continues to be collected at Phelps-Dodge's two monitoring sites in the Miami area in a manner that meets Federal monitoring requirements for state and local air monitoring stations (SLAMS) and that ADEQ commits to entering the data into AQS on a periodic basis. ADEQ has submitted sufficient evidence supporting such commitments in the form of two letters: a letter dated May 15, 2006 from Alan H. Binegar, Smelter Manager, Phelps-Dodge Miami Inc. to Nancy Wrona, Director, Air Quality Division, ADEQ, and a letter dated January 19, 2007 from Nancy C. Wrona, Director, Air Quality Division, ADEQ, to Deborah Jordan, Director, Air Division, EPA-Region IX.

Specifically, in its May 15, 2006 letter, Phelps-Dodge agrees to submit calibration records and supporting documentation for its PM 10 monitors to ADEQ with future quarterly PM 10 reports. In its January 19, 2007 letter, ADEQ commits to begin entering data collected during 2006 by March 1, 2007, to complete the entry of 2006 data into AQS by the end of June 2007, and to continue entry of 2007 and subsequent data following applicable EPA quality assurance procedures and validation. We interpret ADEQ's commitment to mean that by the end of 2007, ADEQ will be entering Miami PM 10 monitoring data collected by Phelps-Dodge on the same quarterly schedule as required for SLAMS.

If Phelps-Dodge or ADEQ fails to fulfill the monitoring-related commitments set forth in the letters dated May 15, 2006 and January 19, 2007, then we can no longer be assured of the continued attainment of the PM 10 NAAQS in the Miami area, and a failure to provide current, valid, publicly available PM 10 data will have the same consequence as a measured violation of the PM 10 NAAQS. In either event, the rationale for determining that the CAA requirements discussed above no longer apply in the Miami area will no longer exist, and as a result, we will take action to withdraw our finding that the Miami area is attaining the standard and withdraw our related determination with respect to certain CAA requirements discussed above. Then, the State of Arizona would again be required to submit the pertinent CAA requirements for this nonattainment area.

In today's notice, we are also correcting two errors in the table found in 40 CFR part 81 (specifically, 40 CFR 81.303) listing the area designations within the State of Arizona for the PM 10 NAAQS. CAA section 110(k)(6) provides EPA with authority to correct errors in rulemakings involving, among other things, area designations and classifications.

First, we are fixing a typographical error in the listing for Payson in the PM 10 table. This error was introduced into the table in a final rule redesignating the Payson area to attainment. See 67 FR 43013 (June 26, 2002). In the June 2002 final rule, we inadvertently listed one of the townships that comprise the Payson air quality planning area as “T01N, * * *” while intending “T10N, * * *.” See 67 FR 43013, at 43019. We are correcting the listing in this notice.

Second, we are correcting the erroneous deletion of the designation for “rest of state” in the Arizona PM 10 table in 40 CFR 81.303. This error occurred in two stages. First, in a 1996 final rule, we inadvertently included “rest of state” under the listing for Mohave County. See 61 FR 21372, at 21378 (May 10, 1996). Then, in a final rule published on February 15, 2002, we inadvertently deleted the “rest of state” listing entirely. See 67 FR 7082, at 7085 (February 15, 2002). In this notice, we are correcting this error by restoring the “rest of state” designation (“unclassifiable”) as a separate listing in the Arizona PM 10 table.

Under section 107(d)(3)(D) of the Clean Air Act, EPA is approving the State of Arizona's redesignation of the Hayden/Miami PM 10 nonattainment area into two separate but adjoining PM 10 nonattainment areas (Hayden and Miami) as submitted on June 20, 2006 and making the changes to the table in 40 CFR part 81 that shows Arizona PM 10 area designations accordingly. EPA is approving this boundary redesignation based on topographical, meteorological, and other air quality-related factors that demonstrate that Hayden and Miami areas lie in different airsheds with little or no cross-airshed transport of PM 10 . Together, the two new PM 10 nonattainment areas cover the same geographic area as the original Hayden/Miami PM 10 nonattainment area and retain a “moderate” classification with respect to the PM 10 NAAQS. The approved boundary between the two new areas roughly traces the ridgeline of the Pinal Mountains.

We also find that the Miami PM 10 nonattainment area is attaining the PM 10 NAAQS. Our finding of attainment is based on quality-assured data that meet the requirements of 40 CFR part 50, appendix K for the period 2003-2005. 13

EPA also finds that, because the Miami area is attaining the NAAQS, the following CAA requirements are not applicable for so long as the Miami area continues to attain the PM 10 standard: the part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), the RFP provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. Because our determination with respect to the above CAA requirements relies on the existence of current, valid, publicly-available monitoring data, we are making our determination contingent upon fulfillment of commitments made by Phelps-Dodge and ADEQ in letters dated May 15, 2006 and January 19, 2007 to submit such data from the two current PM 10 monitoring sites in the Miami area to EPA's AQS. If the commitments made by Phelps-Dodge and ADEQ are not fulfilled or if the data shows a violation of the standard, then EPA will act to withdraw the attainment finding and withdraw the related determination with respect to the CAA requirements listed above.

Lastly, under CAA section 110(k)(6), we correct two errors that were introduced into the “Arizona—PM 10 ” table in 40 CFR 81.303 in previous rulemakings. First, we correct a typographical error in the listings of townships that define the Payson air quality planning area. Second, we correct the erroneous deletion of the designation for “rest of state” by restoring the “rest of state” designation (“unclassifiable”) as a separate listing in the Arizona PM 10 table.

We are publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal should adverse comments be filed. This action will be effective May 29, 2007, without further notice unless the EPA receives relevant adverse comments by April 27, 2007.

If we receive such comments, then we will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 29, 2007 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely redesignates a boundary of an air quality planning area, makes a determination based on air quality data, and suspends certain requirements that otherwise would apply and does not impose any additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 97249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely redesignates a boundary of an air quality planning area, makes a determination based on air quality data, and suspends certain requirements that otherwise would apply and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 29, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Today's rule regulates the use of HCFC-22 and HCFC-142b as foam blowing agents used in the manufacture of rigid polyurethane/polyisocyanurate and extruded polystyrene foam products. Businesses that currently might be using HCFC-22 and HCFC-142b, or might want to use it in the future, include:

Table 1 lists potentially regulated entities:

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

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

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

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

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

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. 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-2006-0481 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 May 29, 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-2006-0481, 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 Bldg.), 2777 S. Crystal Dr., 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 January 24, 2007 (72 FR 3132) (FRL-8110-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E6903) by Valent U.S.A. Corporation, Walnut Creek, CA 94596-8025. The petition requested that 40 CFR part 180 be amended by establishing a tolerance for residues of the fungicide fluopicolide, 2,6-dichloro- N -[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl] benzamide, in or on imported grape, juice, and grape, wine at 2.0 ppm and the processed commodity grape, raisin at 9.0 ppm. That notice referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available to the public in the docket, http://www.regulations.gov . Comments were received on the notice of filing. EPA's response to these comments are discussed in Unit IV.C.

Section 408(b)(2)(A)(i) of 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 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 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....”

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 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 and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for residues of fluopicolide in or on grape at 2.0 ppm and grape, raisin at 6.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies 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. Specific information on the studies received and the nature of the toxic effects caused by fluopicolide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov . The referenced document is available in docket ID EPA-HQ-OPP-2006-0481.

For hazards that have a threshold below which there is no appreciable risk, 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 level of concern (LOC). 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.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at http://www.epa.gov/pesticides/factsheets/riskassess.htm and http://www.epa.gov/oppfead1/trac/science .

A summary of the toxicological endpoints for fluopicolide used for human risk assessment can be found at http://www.regulations.gov . The referenced document is available in docket ID EPA-HQ-OPP-2006-0481.

1. Dietary exposure from food and feed uses . Tolerances have not been established (40 CFR 180.627) for the residues of fluopicolide, in or imported grapes. There are no registrations for use of fluopicolide in the United States. There are no major livestock feed items associated with the use on imported grapes. Therefore, residues in livestock commodities are not relevant to the establishment of import tolerances for grapes. Risk assessments were conducted by EPA to assess dietary exposures from fluopicolide in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and 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.

No acute reference dose was established nor was a dietary endpoint identified in either the general population or for females aged 13-49 years. There were no appropriate studies that demonstrated evidence of toxicity attributable to a single dose of fluopicolide for these populations. As a result, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data 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 dietary assessment included grape commodities, as the only source of residues for fluopicolide. It was assumed that 100% of all grape commodities contained tolerance level residues.

iii. Cancer . Fluopicolide is not likely to be carcinogenic to humans; therefore, a cancer exposure assessment was not conducted.

iv. Anticipated residue and percent crop treated (PCT) information . Anticipated residues/PCT data were not needed to refine the risk assessment so they were not used.

2. Dietary exposure from drinking water . Since there are no existing U.S. registrations for fluopicolide, no residues from fluopicolide are expected to occur in drinking water.

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). No occupational exporue to fluopicolide is expected to occur in the U.S. as a result of fluopicolide on imported grapes.

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 fluopicolide and any other substances and fluopicolide 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 fluopicolide 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 .

1. In general . Section 408 of 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 data base on toxicity and exposure unless EPA determines based on reliable data 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 margin of exposure analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate.

2. Prenatal and postnatal sensitivity . Acceptable/guideline studies for developmental toxicity in rats and rabbits as well as a 2-generation reproduction study in rats were available for consideration during endpoint selection. There is no evidence of susceptibility following in utero and/or postnatal exposure in the rabbit developmental toxicity study or in the 2-generation rat reproduction study. Although qualitative susceptibility was observed in the rat developmental toxicity study, there is low concern for these effects because the offspring effects (reduced growth and skeletal defects) are well characterized and accompanied by maternal toxicity. There are no residual uncertainties concerning pre- and post-natal toxicity.

3. Conclusion . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: There is a complete toxicity database for fluopicolide. There are no residual uncertainties concerning pre- and post-natal toxicity and no neurotoxicity concerns. The dietary food exposure assessment utilizes tolerance level residues and 100% CT. There is no potential for drinking water exposure. There is no potential for residential exposure.

In accordance with the FQPA, EPA must consider and aggregate pesticide exposures and risks from three major sources: Food, drinking water, and residential exposures. In an aggregate assessment, exposures from relevant sources are added together and compared to quantitative estimates of hazard (e.g., a NOAEL or PAD), or the risks themselves can be aggregated. When aggregating exposures and risks from various sources, EPA considers both the route and duration of exposure.The registrant is seeking import tolerances on grapes and its processed commodities and the risk assessment includes only dietary exposure to fluopicolide. There is no expectation that exposure to fluopicolide would occur via water consumption or residential use. Therefore, an aggregate exposure risk assessment is equivalent to the dietary risk assessment.

1. Acute risk . Because there was no evidence of toxicity for fluopicolide attributable to a single dose, fluopicolide is not expected to pose an acute risk.

2. Chronic risk . As there are no U.S. registrations or proposed registrations, the chronic aggregate risk is equivalent to the chronic dietary risk for fluopicolide residues in food. The chronic dietary exposure estimates are <1% cPAD for the general U.S. population and 3% cPAD for children 1-2 years old, the most highly exposed subgroup. The dietary risk estimates are all below EPA's level of concern.

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). As there are no U.S. registrations or proposed registrations for fluopicolide, there will be no exposures from residential uses or residues in drinking water. Therefore, the aggregate risk is the risk from food (grape commodities) only. The dietary risk estimates are all below EPA's level of concern.

4. Intermediate-term risk . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). As there are no U.S. registrations or proposed registrations for fluopicolide, there will be no exposures from residential uses or residues in drinking water. Therefore, the aggregate risk is the risk from food (grape commodities) only. The dietary risk estimates are all below EPA's level of concern.

5. Aggregate cancer risk for U.S. population . Fluopicolide is not likely to be carcinogenic to humans; therefore, fluopicolide is not expected to pose a cancer risk.

6. Determination of safety . Based on these risk assessments, 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 fluopicolide residues.

Adequate enforcement methodology liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS) 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 .

No Codex, Canadian, or Mexican maximum residue limits (MRLs) or tolerances have been established for fluopicolide.

One comment dated June 14, 2006, was received from B. Sachau. Ms. Sachau's comments regarding general exposure to pesticides contained no scientific data or evidence to rebut the Agency's conclusion that there is a reasonable certainty that no harm will result from aggregate exposure to fluopicolide, including all anticipated dietary exposures and other exposures for which there is reliable information. This comment as well as her comments regarding animal testing have been responded to by the Agency on several occasions. For examples, see the Federal Register issues of January 7, 2005 (70 FR 1349) (FRL-7691-4) and October 29, 2004 (69 FR 63083) (FRL-7681-9).

Therefore, the tolerance is established for residues of fluopicolide, 2,6-dichloro- N -[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl]benzamide, in or on grape at a tolerance level of 2.0 parts per million (ppm), and grape, raisin at a tolerance level of 6.0 ppm.

This final rule establishes a tolerance under section 408(d) of 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 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 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 Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of FEMA resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFEs determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

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

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

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

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

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

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of FEMA resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFEs determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

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

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

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of FEMA has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

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 final rule involves no policies that have federalism implications under Executive Order 13132.

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

This is a synopsis of the Report and Order in MB Docket No. 03-142, adopted March 7, 2007, and released March 9, 2007. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com . The Commission will send a copy of this Report and Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Memorandum Opinion and Order , MB Docket No. 06-65, adopted March 7, 2007, and released March 9, 2007. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com .

The Commission will send a copy of this Memorandum Opinion and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order, MB Docket No. 05-101, adopted March 7, 2007, and released March 9, 2007. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a summary of the Commission's Report and Order , MB Docket No. 03-91, adopted March 7, 2007, and released March 9, 2007. The Notice of Proposed Rule Making proposed the allotment of Channel 251A at Wofford Heights, California. See 68 FR 18180, published April 15, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Information regarding the LOF and the Marine Mammal Authorization Program, including registration procedures and forms, current and past LOFs, observer requirements, and marine mammal injury/mortality reporting forms and submittal procedures, may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/mmap , or from any NMFS Regional Office at the addresses listed below.

NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298, Attn: Marcia Hobbs;

NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Teletha Mincey;

NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Lyle Enriquez;

NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, Attn: Permits Office;

NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802; or

NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani Boulevard, Suite 1100, Honolulu, HI 96814-4700.

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Stock Assessment Reports and other relevant sources and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2, Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level.

Tier 2, Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level.

Tier 2, Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level.

While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Since fisheries are categorized on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically categorized on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II).

In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality qualifies for Category II by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2).

The LOF includes a list of marine mammal species or stocks incidentally killed or seriously injured in each commercial fishery, based on the level of mortality or serious injury in each fishery relative to the PBR level for each stock. To determine which species or stocks are included as incidentally killed or seriously injured in a fishery, NMFS annually reviews the information presented in the current Marine Mammal Stock Assessment Reports (SARs). The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of mortality or serious injury incidental to commercial fishing operations. NMFS also reviews other sources of new information, including observer data, stranding data and fisher self-reports.

In the absence of reliable information on the level of mortality or serious injury of a marine mammal stock, or insufficient observer data, NMFS will determine whether a species or stock should be added to, or deleted from, the list by considering other factors such as: changes in gear types used, increases or decreases in fishing effort, increases or decreases in the level of observer coverage, and/or changes in fishery management that are expected to lead to decreases in interactions with a given marine mammal stock (such as a Fishery Management Plan or a Take Reduction Plan). NMFS will provide case specific justification in the LOF for changes to the list of species or stocks incidentally killed or seriously injured.

Data obtained from observers and the level of observer coverage are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. The best available information on the level of observer coverage, and the spatial and temporal distribution of observed marine mammal interactions, is presented in the SARs. Starting in 2005, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Information presented in the SARs' appendices include: level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, gear characteristics, management and regulations, and marine mammal interactions.

NMFS refers readers to the SARs for the most current information on the level of observer coverage for each fishery. Copies of the SARs are available on the NMFS Office of Protected Resource's web site at: http://www.nmfs.noaa.gov/pr/sars/ . Additional information on observer coverage in commercial fisheries can be found on the National Observer Program's web site at: http://www.st.nmfs.gov/st4/nop/ .

This final rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

Vessel or gear owners must register with the Marine Mammal Authorization Program (MMAP) by contacting the relevant NMFS Regional Office (see ADDRESSES ) unless they participate in a fishery that has an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners an authorization certificate. The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)).

For some fisheries, NMFS has integrated the MMPA registration process with existing state and Federal fishery license, registration, or permit systems. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. The following section indicates which fisheries are integrated fisheries and has a summary of the integration process for each Region. Vessel or gear owners who operate in an integrated fishery and have not received an authorization certificate by January 1 of each new year or with renewed state fishing licenses (as in Washington and Oregon) must contact their NMFS Regional Office (see ADDRESSES ). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

The following fisheries have integrated registration programs under the MMPA:

1. All Alaska Category II fisheries;

2. All Washington and Oregon Category II fisheries;

3. Northeast Regional fisheries for which a state or Federal permit is required;

4. All Southeast Regional fisheries for which a Federal permit is required, as well as fisheries permitted by the states of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas; and

5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo,Oceanic Sharks Longline/Set line Fishery.

Vessel or gear owners that participate in fisheries that have integrated registration programs (described above) are automatically renewed and should receive an authorization certificate by January 1 of each new year, with the exception of Washington and Oregon Category II fisheries. Washington and Oregon fishers receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in an integrated fishery and have not received authorization certificates by January 1 or with renewed fishing licenses (Washington and Oregon) must contact the appropriate NMFS Regional Office (see ADDRESSES ). Vessel or gear owners that participate in fisheries that do not have integrated registration programs and that have previously registered in a Category I or II fishery will receive a renewal packet from the appropriate NMFS Regional Office at least 30 days prior to January 1 of each new year. It is the responsibility of the vessel or gear owner in these fisheries to complete their renewal form and return it to the appropriate NMFS Regional Office at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time must request a registration form from the appropriate Regional Office (see ADDRESSES ).

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported. Injury/mortality report forms and instructions for submitting forms to NMFS can be downloaded from: http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf . Reporting requirements and procedures can be found in 50 CFR 229.6.

Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7.

Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans. Take reduction plan requirements can be found at 50 CFR 229.30-34.

NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the SARs for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS' SARs are based on the best scientific information available at the time of preparation, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that may not be included in the SARs.

The LOF for 2007 was based, among other things, on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 (69 FR 54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, June 20, 2005), the final SARs for 2005 (71 FR 26340, May 4, 2006), and the draft SARs for 2006 (71 FR 42815, July 28. 2006). All SARs are available at: http://www.nmfs.noaa.gov/pr/sars/ .

NMFS received 9 comment letters on the proposed 2007 LOF (71 FR 70339, December 4, 2006) from environmental, commercial fishing, and Federal and state interests. Comments on issues outside the scope of the LOF were noted, but are not responded to in this final rule.

Comment 1: One commenter recommended NMFS continue to support current research efforts, and support and engage in additional research, on depredation and associated fishery interactions. Research should focus on developing means of reducing or controlling depredation rates and minimizing or mitigating any serious injuries or deaths of marine mammals from depredation-related interactions.

Response: NMFS has supported and will continue to support research efforts intended to better understand the nature of depredation-related interactions, to reduce the risk of serious injury and mortality to marine mammal stocks, and to investigate potential mitigation strategies.

Through the Take Reduction Team (TRT) process, NMFS has developed and implemented successful gear research components to several Take Reduction Plans (TRP). Specifically, NMFS has allocated research funding for several TRPs including the Atlantic Trawl Gear, Atlantic Large Whale, Pelagic Longline, and Bottlenose Dolphin TRPs. The research identified by the respective TRTs allows NMFS to better understand the behavior of several marine mammal species. The recommended research included techniques such as the use of video cameras to document marine mammal interactions with various gear types in hopes of gaining a better understanding of whether these interactions are a result of depredation of the target species by the marine mammals, or other behavioral factors. This knowledge will provide insights into what types of mitigation measures can be implemented in order to minimize the serious injuries and mortalities associated with depredation-related interactions. Various gear modifications are routinely researched to reduce the risk of interactions and serious injury and mortality of marine mammals should an entanglement occur.

NMFS also gathers information on marine mammal depredation in fisheries from various sources including, fishery observer records, vessel logbooks, data collected during dockside surveys, independent researchers, State agencies, and the general public. NMFS uses this information to monitor fisheries and evaluate whether action is needed to prevent or limit depredation in order to protect marine mammals. For example, in the past NMFS has participated in a program to conduct research in California, Oregon, and Washington examining pinniped depredation in various fisheries and develop methods to reduce or control the depredation. However, funding for this program was eliminated in 2005 and it is not known if funding will be re-instated in the future. Also, NMFS is currently reviewing the issues related to depredation by false killer whales in the Hawaii-based longline fishery and is supportive of research efforts to reduce false killer whale take. NMFS continues to seek ways to support and participate in research on depredation and the development of deterrent methods, within existing budget constraints.

Comment 2: One commenter recommended NMFS work with regional Fishery Management Councils to improve monitoring and mitigation of serious injury and mortality rates incidental to trap/pot fisheries. Interactions with trap/pot gear are known to occur. However, the frequency is difficult to quantify because traditional fishery observer programs are unlikely to observe entangled animals, particularly large whales that often carry entangling gear away. In absence of better monitoring, characterization of such problems is often based on anecdotal information.

Response: NMFS has been often unable to identify lines wrapped on entangled whales conclusively or determine to which specific fishery gear belongs, including whether it is a commercial or recreational fishery. This is particularly difficult for pot gear, when often just a single line or line with an unidentified buoy is found associated with an entangled whale. This information is critically important in assigning fisheries under the LOF, and NMFS will only assign a serious injury or mortality to a specific fishery when gear can be identified to that fishery with a high degree of certainty. NMFS is working to improve the ability to identify such gear found on entangled whales.

NMFS agrees that quantifying entanglement rates in the trap/pot fishery would be difficult through an observer program due to the low likelihood of observing an entanglement. However, other means of collecting information on entanglements of marine mammals are also available. For example, information regarding fishery interactions with marine mammals is included in reports by fishermen collected under the Marine Mammal Authorization Program (MMAP), under which all commercial vessel owners or operators, regardless of the category of fishery they participate in, must report all incidental injuries and mortalities of marine mammals. Stranding data is also used to collect information on entanglements.

Trap/pot fisheries are of interest based on available information concerning trap/pot gear interactions with large whales in the Atlantic, Pacific, and Alaska, and bottlenose dolphins in the Southeast Atlantic and Gulf of Mexico. In the Atlantic Ocean and Gulf of Mexico, NMFS has funded, and plans to continue to fund based on available resources, several research projects for mitigating blue crab trap/pot interactions with bottlenose dolphins in the Southeast Atlantic and Gulf of Mexico. Many of these projects have been incorporated into non-regulatory components of the Bottlenose Dolphin Take Reduction Plan. NMFS is considering folding trap/pot fisheries into the Atlantic Large Whale Take Reduction Plan (ALWTRP) in an upcoming action. The Atlantic Large Whale Take Reduction Team (ALWTRT) currently emphasizes the incorporation of the regional fishery management councils by asking council representatives to serve as team members. NMFS will raise this issue with council representatives at future meetings to further the discussion.

In the Pacific Ocean, NMFS plans to communicate with the Pacific Fisheries Management Council when considering current fishery descriptions for trap/pot fisheries, as well as when assessing potential changes to fishery descriptions to more accurately reflect differences in trap gear fisheries and the likelihood for interactions with marine mammals.

In Alaska, a high proportion of all humpback whale entanglements are thought to be from pot gear relative to other fishery sources, while in reality the proportion of entanglements resulting in known serious injuries and mortalities from known or assumed pot gear when compared to serious injury and mortalities from all entanglements is not as high. From 2001 through 2005 there were 40 humpback whale entanglements attributed to commercial or recreational fisheries, and 15 (37.5 percent) of those were thought to be from various pot gear, although that is not conclusive. Of those 40 humpback whale entanglements, 17 (42.5 percent) were serious injuries or mortalities, all attributed to commercial fisheries. Five of the 17 (29 percent) serious injuries or mortalities were thought to be from various pot gear. Therefore, from 2001-2005, 5 of the overall 40 humpback whale entanglements, or 12.5 percent, resulted in serious injuries or mortalities thought to be from various pot gear.

Determining whether an entanglement results in a serious injury (one that leads to mortality) is a challenge for NMFS, and an improved approach to this is needed, and the agency is working toward that end. In the Alaska region, NMFS is working to increase public awareness of the dangers to whales of vertical lines in the water column, and is asking for voluntary cooperation to minimize the amount of vertical line in the water column where possible and in marking personal and commercial gear. Working with marine mammal researchers, the fishing industry, and NOAA Sea Grant over the past several years, the Alaska Stranding Program has increased community outreach. Cooperative, ongoing efforts include community meetings, informal working groups, increased disentanglement response training, developing a vessel wheelhouse guide on preventive measures and reporting information, investigating deterrent uses, improved reporting, and acquisition of additional response equipment, including adding a response vessel to the program, and satellite telemetry tags and buoys. Ultimately, the goal is entanglement reduction and prevention.

Comment 3: One commenter stated that the length of the public comment period (30 days) on the proposed rule does not allow appropriate time for formal review and comment by Fishery Management Councils, protected resources committees, industry advisors, and individuals.

Response: NMFS believes the 30-day comment period allowed for adequate review and comment on this proposed rule.

Comment 4: One commenter noted that the categorization of fisheries under the MMPA is not congruent with fishery management units defined under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). Congruency between the definitions under MSFCMA and the categorization of fisheries under the MMPA would facilitate the process of moving towards an ecosystem approach to management, i.e., for the management of fisheries resources and the conservation of marine mammal stocks.

Response: The MSFCMA defines fishery listings based on fish species and fish stocks, while the MMPA defines fishery listings based on marine mammal stocks and their interactions with fishing gear types. Since multiple fishing gear types are usually covered under each Fishery Management Plan (FMP), categorizing marine mammal interactions with fisheries on an FMP basis is usually not appropriate. To help minimize confusion associated with the different fishery definitions, the agency will continue, as appropriate, to make modest changes to facilitate cooperation with regional Fishery Management Councils (see responses to comments 2 and 3).

Comment 5: The proposed rule states that less than 360 small entities will be affected by the LOF due to the cost of permits and that no economic costs will be incurred by vessels requested to carry an observer. This evaluation fails to recognize the burden of carrying an observer, especially on smaller fishing vessels that may have to operate with one less crew member to accommodate the observer. This could lead to operational inefficiencies and loss of revenue.

Response: An Environmental Assessment (EA) was prepared for the Final 2006 LOF, which included a full Regulatory Impact Review (RIR). The effects on small entities were discussed and analyzed as part of the RIR. Impacts to small entities including the impacts associated with carrying an observer were adequately addressed. A full copy of the December 2005 EA can be obtained at: http://www.nmfs.noaa.gov/pr/pdfs/interactions/lof_ea.pdf .

In addition, under section 118(d)(6)(B) of the MMPA, NMFS is not required to place an observer on a Category I or II vessel if the facilities for housing the observer or for carrying out observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized (also stated in 50 CFR 229.7(c)(3)).

Comment 6: NMFS did not provide sufficient notice in the proposed rule to inform fishermen that their fishery is proposed for elevation and the associated more stringent regulations. Also, the holiday season falling within the comment period (December 4, 2006-January 3, 2007) made it difficult to find credible information and to contact agency staff to allow public involvement.

Response: See Comment Response 3 above.

Comment 7: One commenter viewed the LOF fishery classification system as inaccurate, under which NMFS is downplaying the highly destructive nature of commercial fisheries. NMFS does not sufficiently monitor these fisheries; therefore, many more fisheries should be classified higher on the LOF to allow for observer coverage.

Response: NMFS believes that the fishery classification system is accurate. The current fishery classification system, which continues to be widely accepted by the scientific community and the fishing industry, is based on a two-tiered, stock-specific approach that first addresses the total impacts of all fisheries on each marine mammal stock and then addresses the impacts of individual fisheries on each stock. Please see SUPPLEMENTARY INFORMATION for additional information on the classification criteria. NMFS implemented the classification criteria in the final regulations to implement the 1994 amendments to the MMPA (60 FR 45086, August 30, 1995) after ample consider of comments and suggestions from the public. NMFS also finalized an Environmental Assessment (EA) in August, 1995, to analyze the impacts of the regulations implementing the 1994 amendment on the environment and the public, and finalized a revised EA in December 2005 on the process of classifying U.S. commercial fisheries. To determine whether changes in fishery classification are warranted, NMFS reviews all marine mammal incidental injury and mortality information presented in the Stock Assessment Reports (SARs). NMFS' SARs are based on the best available scientific information available at the time of publication. The SARs are peer-reviewed by regional Scientific Review Groups (SRGs), created by the MMPA to review the science that informs the SARs.

NMFS regularly monitors commercial fisheries in the U.S. and reviews data gathered by the National Observer Program, fisher self-reports, stranding data, and other information when categorizing fisheries based on the level of interactions with marine mammals. Category I and II fisheries are required to register with NMFS, to carry NMFS observers if requested, and comply with all applicable take reduction plan regulations. In addition, all fishermen, regardless of the classification of the fishery in which they operate, are required by the MMPA to report, within 48 hours of returning to port, any injury or mortality that occurs incidental to commercial fishing operations. NMFS also reviews other sources of information, such as stranding data, to assess whether elevation of a Category III fishery is warranted, thereby requiring the fishery to carry observers, if requested.

Comment 8: One commenter reiterated previous letters on the 2005 and 2006 LOFs calling for the inclusion of observer coverage on the LOF. The SARs usually include estimates of observer coverage only for fisheries known to interact with marine mammals, while fisheries for which interactions have not been documented in recent years are not described. Without this information, it is not possible to determine whether a given fishery was adequately observed and no interactions documented, or whether the fishery was not adequately observed and interactions may occur. For this reason, NMFS should describe the level of observer coverage for each fishery on the LOF.

Response: Including detailed information on the level, or percentage, of observer coverage to each fishery on the LOF will be of limited use without also including the confidence associated with mortality/serious injury estimates generated from observer data. Presenting the level of observer coverage in the LOF without the associated confidence information will likely lead to misinterpretation of the information provided. Information including details of the interaction data, and the Coefficient of Variance (CV) for stock-specific information, is reported in the SARs. Please also see NMFS' response to a similar comment in the final LOF for 2006 (see Response to Comment 4 in 60 FR 48802, August 22, 2006).

NMFS continues to refer readers to the SARs for the most current, peer-reviewed information on observer coverage. Since 2005 each SARs includes an Appendix with Category I and II fishery-specific information, including the level of observer coverage; therefore, this information does not need to be duplicated in the LOF. NMFS is continuing to work to build and improve the fisheries interaction information presented in order to provide a useful source of information for the reader. NMFS will consider this comment when considering improvements to the SARs appendices. The SARs can be accessed through the NMFS Office of Protected Resource's web site at: http://www.nmfs.noaa.gov/pr.sars/ . Additional information can also be found on the National Observer Program web site at: http://www.st.nmfs.gov/st4/nop/ .

Information beyond stating “interactions have not been documented in recent years” would be useful as further explanation and support for changes in fishery classifications or additions and deletions of stocks from the list of marine mammal species or stocks incidentally killed/injured in a fishery. For this reason, NMFS will present information associated with the level of observer coverage or lack of observer coverage, if available, as part of the justification for proposing changes in future LOFs.

Comment 9: One commenter reiterated a previous comment made on the 2004 LOF for inclusion of high seas fisheries on the LOF. Multiple high sea fisheries, in which U.S. flagged vessels operate, are known to interact or are likely to interact with marine mammals. Section 118 of the MMPA applies to “commercial fishing operations by persons using vessels of the United States”. Therefore, NMFS failure to include these high seas fisheries is unlawful. Specific fisheries suggested as additions are the Cobb Seamount fishery, Pacific Pelagic Squid Jig fishery, South Pacific Tuna Purse Seine fishery, and fisheries in the area of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) including the Patagonian toothfish longline fishery and a trawl fishery for krill.

Response: NMFS is currently investigating available information on existing high seas fisheries in which U.S. nationals and flagged vessels participate, the estimated number of vessels/participants in these fisheries, and fishery interactions with marine mammal stocks on the high seas. NMFS will continue its investigation and consider the inclusion of high seas fisheries in future LOFs.

Comment 10: One commenter supported the elevation and addition of 3 Alaska fisheries, the AK Cook Inlet salmon set gillnet fishery, AK Cook Inlet salmon purse seine fishery, and AK Kodiak salmon purse seine fishery, to Category II.

Response: NMFS has added the AK Cook Inlet salmon set gillnet fishery as a Category II, and has elevated the AK Cook Inlet salmon purse seine fishery and the AK Kodiak salmon purse seine fishery to Category II, on the 2007 LOF.

Comment 11: One commenter stated that NMFS' proposed elevation or addition of 3 Alaska nearshore fisheries, the AK Cook Inlet salmon set gillnet fishery, AK Cook Inlet salmon purse seine fishery, and AK Kodiak salmon purse seine fishery, highlights the importance of monitoring interactions in state-managed fisheries. The Alaska Marine Mammal Observer Program (AMMOP) has not been funded sufficiently or consistently and does not provide an adequate basis for characterizing the full extent of such interactions. NMFS should increase and maintain funding for the AMMOP at levels sufficient for reasonable assessment of marine mammal take levels in AK state-managed fisheries or consider alternative means for assessing take levels and their population impacts.

Response: The cost of the Alaska Marine Mammal Observer Program is very high, relative to other observer programs around the country, due to the remote nature of the fisheries observed. To offset such high costs, NMFS is investigating alternatives to implementing full observer programs in these fisheries, such as observing focused portions of the fisheries.

Comment 12: Estimates of abundance and PBR level are not readily available for North Pacific sperm whales. NMFS should develop a scientifically sound estimate of this stock's abundance and PBR level that can be used to evaluate potential fishery impacts. For example, sperm whales are known to depredate on catch in the sablefish longline fishery and at least one serious injury of a sperm whale has been observed, with the current estimate of injury/mortality at 0.45 whales/year. This rate may increase if depredation becomes more widespread.

Response: At this time, resources are not available to assess the abundance of North Pacific sperm whales in order to calculate a PBR level.

Comment 13: One commenter recommended NMFS expedite analyses of humpback whale stock structure in the North Pacific and increase efforts to observe entangled and stranded whales in southeastern Alaska to obtain accurate estimates of interactions with trap/pot fisheries. These analyses will better assess the potential impact of fishery interactions on the southeastern AK feeding aggregation of Central North Pacific humpback whales (which NMFS is currently considering designating as a separate stock), considering recent reports of stranded/entangled whales suggest interactions with trap/pot fisheries in southeastern Alaska may be unsustainable.

Response: The Structure of Populations, Levels of Abundance, and Status of Humpbacks (SPLASH) project collected information on humpback whales throughout the North Pacific. This project has only recently concluded. At this time, NMFS anticipates that some preliminary results may begin to be published in 2008 and may be considered during the preparation of the draft List of Fisheries for 2009.

Comment 14: One commenter referenced the case of a humpback whale removed from a set gillnet by NMFS personnel in June 2005. Although they were not successful in removing all the webbing, the animal swam away. We are not aware of conclusive information that provides a determination that mortality resulted from this incidental take.

Response: The Marine Mammal Protection Act (MMPA) requires that serious injuries and mortalities be included in consideration of the classification of fisheries under the annual List of Fisheries. NMFS has defined serious injury in 50 CFR 229.2 as an injury that is likely to lead to mortality. The agency convened a workshop in April 1997 to develop guidelines for a consistent approach for determining which injuries may be considered serious injuries. Results from that workshop were published as a NOAA Technical Memorandum in 1998 (NMFS-OPR-13, Angliss, R.P., and D.P. DeMaster) and have been incorporated into the annual process of fisheries classification.

Current guidelines for making serious injuries determinations for marine mammals injuries resulting from entanglement in fishing gear include consideration of whether the animal's locomotion or feeding is or could be impaired by the entanglement. Information for each humpback whale entanglement in Alaska is reviewed by members of the Alaska Scientific Review Group (SRG), a Congressionally mandated regional advisory board to NMFS made up of marine mammal scientists. The SRG forwards to NMFS recommendations for each entanglement on whether the entanglement is likely to result in a serious injury or not. NMFS makes the final determination for each entanglement, taking into account the SRG's recommendation and the proper application of the serious injury determination guidelines.

NMFS anticipates holding a follow-up serious injury workshop in 2007 to update and advance the current guidelines for making serious injury determinations.

Comment 15: One commenter stated that the population of the Central North Pacific humpback whale stock appears to be increasing. Therefore, the take in the Cook Inlet set gillnet fishery, which is calculated to be 1.55 percent of the stock's PBR, should not trigger changing this fisheries' classification from Category III to Category II.

Response: There is evidence that the central North Pacific stock of humpback whales is increasing in at least portions of its range, such as in Southeast Alaska. However, it is not clear that this is the case throughout the range of the stock. Further, the results of the recent study of North Pacific humpback whales may indicate that the existing stock structure is incorrect and that smaller stocks may be more appropriate. Given the uncertainty in the rate of increase and stock structure, NMFS will classify this fishery using the classification criteria without adjusting for possible changes in abundance.

Comment 16: One commenter stated that the area in which the humpback whale take in 2005 occurred in Cook Inlet is remote, and that portion of the fishery is not conducted in the same time, area or methodology as 95 percent of the set gillnet fishery within Cook Inlet. The productivity of this small portion of the fishery is only 1 percent of the targeted sockeye salmon species. There has been no documented incidence with humpback whales in the Central or Northern districts of Upper Cook Inlet through the previous observer program (1999-2000) or in the commercial fishery. Please consider listing Upper and Lower Cook Inlet set gillnet fisheries as separate fisheries on the List of Fisheries.

Response: NMFS organizes Alaska fisheries under the LOF by target, gear type, and geographic area. Separating the Upper and Lower Cook Inlet set gillnet fisheries into two fisheries on the LOF would not be consist with the scale of identification of other Alaska state and Federal fisheries on the LOF.

The Alaska Department of Fish and Game manages the state fisheries at the local scale to achieve the success that they have in maintaining sustainable fish population levels, because salmon fishery management is based in large part on achieving local escapement goals. However, NMFS manages marine mammals by stocks, which generally cover large geographic areas in Alaska. The fisheries within or across those areas are classified under the LOF in order to track the relative impacts of the fisheries on the marine mammal stocks. Because of the large scale of Alaska and the high number of small, local fisheries throughout the state, NMFS believes that the geographic areas and other variables used to identify fisheries under the LOF are comprehensive enough to detect potential concerns with marine mammal-fishery interactions, but not so large that the local source becomes unclear. Under circumstances outlined in the MMPA, when fishery-related serious injuries and mortalities reach a level which trigger the need to institute focused take reduction measures, a finer scale of review is instituted. In such cases, detailed differences in gear, area, timing, effort, and other variables would be taken into account to address specific sources of marine mammal incidental serious injuries and mortalities.

Comment 17: One commenter noted errors in the number of permits issued in, and management of, the WA/OR purse seine fishery. The proposed rule states that OR and WA issued 26 and 16 permits, respectively, for the 2004 fishery, when the correct number of permits was 20 and 21, respectively. At that time, the OR fishery was a developmental fishery and the WA fishery was an experimental fishery. In 2006 the OR fishery operated as a state run limited entry fishery and WA remained an experimental fishery.

Response: The commenter is correct. OR and WA issued 20 and 21 permits, respectively, for the WA/OR purse seine fishery in 2004. The figures provided in the proposed rule, 26 permits issued in OR and 16 in WA, were incorrectly associated with the fishery for 2004. In fact, 26 and 16 permits were issued for OR and WA, respectively in 2006. The commenter is also correct that OR become a limited entry fishery in 2006, while WA remained an emerging fishery.

Comment 18: Two commenters recommended elevating the CA lobster, prawn, shrimp, rock crab, fish pot fishery and the WA/OR/CA crab pot fishery to Category II based on interactions with humpback and gray whales. Interactions with humpback whales off the CA coast are likely to exceed 1 percent of PBR (PBR = 1.9). At least 14 large whales were documented entangled in this gear type from 2000-2005.

Response: NMFS is aware of interactions between humpback and gray whales and pot and trap gear. The 2005 Pacific SAR indicates that there were six Eastern North Pacific humpback whales observed killed or injured between 1999 and 2003 attributed to unidentified fisheries. This results in a mean annual take of more than 1.2 humpback whales per year, which is greater than 1 percent of this stock's PBR of 2.3. Based upon available data from the California Marine Mammal Stranding Network Database, which is currently being reviewed and updated, five humpbacks were observed entangled in pot or trap gear between 1999 and 2003. Thus NMFS has initiated a review of the trap/pot fisheries to determine whether recategorization of the CA lobster, prawn, shrimp, rock crab, fish pot fishery or the WA/OR/CA crab pot fishery is appropriate. At this time, NMFS has insufficient information on the spatial and temporal distribution on these various fisheries to determine which fisheries may be interacting with marine mammals, particularly humpback whales. Stranding reports from the stranding network are not necessarily a reliable identifier of fishing gear types as it is difficult to distinguish different pot and trap gears from surface observations of line and floats. Therefore, NMFS will work with the States of California, Oregon, and Washington to characterize the state and Federal fisheries that utilize these gear types, and review observed marine mammal entanglement from stranding reports and limited data from observer programs, to determine which pot and trap fisheries are most likely to interact with marine mammals. NMFS will also consider if the current fishery descriptions should be adjusted to more accurately reflect spatial and temporal differences in the various pot and trap gear fisheries, the regulatory authority for the fisheries, and the likelihood of interactions with marine mammals. NMFS will work with the states and the Pacific Fisheries Management Council during this process and make recommendations on fishery recategorizations once sufficient information has been collected and analyzed.

Comment 19: One commenter recommended NMFS observe the category III CA halibut bottom trawl fishery and reevaluate classification once reliable information on interactions with marine mammals becomes available. This fishery is similar to the WA/OR/CA groundfish trawl fishery, also Category III, which is known to interact with several marine mammal species.

Response: NMFS is planning to place observers on the CA halibut bottom trawl fishery beginning in 2007. Because this fishery has not been previously observed, NMFS reviewed the bottom trawl groundfish observer data and classified the CA halibut bottom trawl fishery as a Category III fishery based upon the level of interactions with marine mammals and by analogy to the WA/OR/CA groundfish trawl fishery based upon fishing methods and gear used. As of 2006, the State of California requires a license for vessels participating in the previously open-access CA halibut bottom trawl fishery. Thus NMFS will be able to deploy observers in this fleet starting in January 2007. Once the data are collected and analyzed, NMFS will re-evaluate the CA halibut bottom trawl fishery to determine if recategorization on the LOF is appropriate.

Comment 20: One commenter recommended NMFS reclassify the category I HI swordfish, tuna, billfish, mahi mahi, wahoo, oceanic sharks longline/set line fishery as Category II, given the lack of evidence of geographic isolation or genetic distinction among “stocklet” populations of false killer whales in the U.S. Exclusive Economic Zone (EEZ) and false killer whales on the high seas, and given the genetic evidence of central and eastern Pacific stock overlap. Genetic samples taken by NMFS observers indicate substantial mixing and genetic overlap between central and eastern Pacific stocks. Therefore, false killer whales that interact with the Hawaii-based longline fisheries are not clearly identifiable as part of the HI EEZ or central Pacific stock. It inappropriate to charge all mortalities or serious injuries by HI-based longline fisheries against a HI EEZ stock when it is clear that some genetic samples of the injured or killed whales cannot be tracked to a genetically distinct HI population.

The commenter also noted errors and uncertainties in the false killer whale SARs, which underestimate false killer whale abundance and overestimate the seriousness of the HI longline fishery interactions with this species. NMFS improperly divides the central Pacific false killer whale stock into two stocklets, artificially reducing the abundance numbers against which HI longline fishery interactions are considered.

NMFS should also: (1) base final SAR and LOF decisions on a single, combined central Pacific stock of false killer whales across the HI and Palmyra Atoll EEZs and the central Pacific; (2) recognize the size of this single false killer whale stock is greater than the sum of the estimated populations of “stocklets” in the HI and Palmyra Atoll EEZs (i.e. >1813 animals); (3) derive values for minimum false killer whale population estimates and PBR levels based on the combined population numbers in the HI and Palmyra Atoll EEZs and the central Pacific; and (4) apportion mean annual take estimates attributable to the HI-based longline fisheries between a central and eastern false killer whale stock consistent with ongoing tissue sampling. This approach would result in an overall PBR for the single stock as 10.1 (2.4 for the HI EEZ + 7.7 for the Palmyra Atoll EEZ). With these changes HI-based longline fisheries would be well below 50 percent of PBR, qualifying the fishery for reclassification as a Category II. Also, a Category II classification would not affect the observer program requirements, which are a consequence of Endangered Species Act (ESA) consultation requirements.

Response: Genetic analyses of tissue samples collected within the Eastern North Pacific (ENP) indicate restricted gene flow between false killer whales sampled near the main Hawaiian Islands and false killer whales sampled in all other regions of the ENP (Chivers et al., 2006). False killer whales sampled at Palmyra Atoll appear more closely related to animals sampled in the waters of the pelagic ENP, Panama, and Mexico (Chivers et al., 2006). Thus, false killer whales occurring near Palmyra Atoll may be part of a larger stock covering a broad geographic area within the central and eastern North Pacific.

Since 2003, observers of the Hawaii-based longline fishery have also been collecting tissue samples of incidentally caught cetaceans for genetic analysis whenever possible. Four false killer whale samples, two collected outside the Hawaiian EEZ and two collected more than 100 nautical miles from the main Hawaiian Islands, were determined to have ENP-like haplotypes. This suggests that false killer whales within the Hawaiian EEZ belong to two stocks, with a boundary somewhere within the Hawaiian EEZ. Efforts are currently underway to obtain and analyze additional tissue samples of false killer whales for further studies of population structure in the North Pacific Ocean.

Therefore, for the MMPA SARs, there are currently two Pacific Island Region management stocks. One includes animals found within the U.S. EEZ of the Hawaiian Islands, the other includes false killer whales found with the U.S. EEZ of Palmyra Atoll. Estimates of abundance, PBR levels, and status determinations are analyzed separately. Abundance estimates are based upon established scientific methods have been peer-reviewed and accepted by the Pacific SRG. The marine mammal stock assessment process under the MMPA was specifically designed to allow for levels of uncertainty similar to those observed for false killer whales.

Furthermore, NMFS has previously responded to a similar comment in our List of Fisheries for 2004 (69 FR 48407, August 10, 2004). In our Response to Comment 17 (69 FR 48413), NMFS stated: “The Hawaiian stock of false killer whales is considered a strategic stock under the MMPA because fishery related mortality and serious injury exceeds the PBR level for this stock (see 16 U.S.C. 1362(19)). Genetic analysis of samples from false killer whales in the North Pacific Ocean indicates population structure, but geographic boundaries of the various populations cannot yet be identified. However, the evidence for reproductive isolation and strong genetic differentiation of individuals sampled around Hawaii from individuals sampled in the ETP (Eastern Tropical Pacific) is solid. Furthermore, NMFS' current mortality and serious injury estimates are based only on takes within the U.S. EEZ and compared to PBR levels derived from abundance estimates for waters within the U.S. EEZ. In addition, even if the actual boundaries of the Hawaiian stock of false killer whales extended beyond the EEZ, the strategic status of the stock would not be changed. NMFS' guidelines for preparing marine mammal stock assessment reports contain specific instructions for calculating PBR of trans-boundary stocks. (The guidelines are available in electronic form at http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm ). In cases such as false killer whales in the Hawaiian EEZ, where the stock could extend into international waters, the PBR would be based on the abundance of animals within the EEZ. This guideline was established to prevent underestimating the effects of mortality and serious injury incidental to U.S. fisheries in international waters where unknown levels of additional human-caused mortality and serious injury (e.g., incidental to foreign fisheries in the same waters) may also be affecting the stock. NMFS does, however, plan to try to obtain additional genetic samples from a broader geographic range to help define stock boundaries.”

Comment 21: Two commenters supported reclassification of the mid-Atlantic mid-water trawl fishery from category I to category II and supported findings that this fishery does not pose a serious risk or contribute to the mortality or serious injury of common dolphins, Western North Atlantic (WNA) stock, and long- and short-finned pilot whales, WNA stock. One commenter encouraged NMFS to maintain adequate observer coverage to provide robust estimates of mortality and serious injury, particularly to inform the Atlantic Trawl Gear Take Reduction Team (ATGTRT).

Response: Based on a recommendation made by the ATGTRT (September 2006), NMFS re-evaluated the classification of the mid-Atlantic mid-water trawl fishery as a Category I fishery on the LOF. After conducting a tier analysis, NMFS determined that reclassification as a Category II fishery is warranted.

It should be noted that the MMPA establishes a requirement that the level of incidental mortality and serious injury of marine mammals be reduced to insignificant levels approaching a zero rate, commonly referred to as the Zero Mortality Rate Goal (ZMRG). NMFS has established a threshold level for mortality and serious injury to meet the insignificance threshold requirement. NMFS has defined the insignificance threshold as 10 percent of the PBR level for a stock of marine mammals (69 FR 43338, July 20, 2004). Since the mid-Atlantic mid-water trawl fishery is a Category II fishery and the annual mortality and serious injury level is above the insignificance threshold, it remains subject to future TRPs developed by the ATGTRT.

NMFS will continue to allocate observer coverage to the maximum extent possible to meet MMPA requirements. NMFS will also try to make the best use of available resources by using existing research programs, programs operated by states or other authorities, or alternative programs where statistically reliable information can be obtained.

Comment 22: One commenter requested further evidence of additional species being targeted with trap/pot gear in the mid-Atlantic region. It is unclear from the text in the proposed rule (71 FR 70339, December 4, 2006) which species are being added to the list of target species in the Atlantic mixed species trap/pot fishery.

Response: Clarification on which targeted species are being included in the expansion of species associated with the Atlantic mixed species trap/pot fishery can be found in the proposed 2007 LOF (71 FR 70346, December 4, 2006). NMFS added the category II Atlantic mixed species trap/pot fishery to the 2003 LOF to encompass the Northeast trap/pot fishery, the mid-Atlantic mixed species trap/pot fishery, the U.S. mid-Atlantic and Southeast U.S. Atlantic black sea bass trap/pot fisheries and any other trap/pot fisheries otherwise not identified in the LOF, based on the use of similar gear and the potential for marine mammal entanglements. NMFS has recently become aware of additional species being targeted in this fishery including but not limited to: hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), white hake, spot, skate, catfish and American eel (not included in the LOF's U.S. mid-Atlantic eel trap/pot fishery description) (71 FR 70346, December 4, 2006).

Evidence for this decision can be found in the Draft Environmental Impact Statement (DEIS) for Amending the Large Whale Take Reduction Plan (ALWTRP): Broad-Based Gear Modifications (February 2005), chapter 4 titled “Affected Environment”. This chapter includes the reasoning for why the addition of these fisheries to the Atlantic mixed species trap/pot gear fishery is warranted.

Comment 23: NMFS used “anecdotal” data to help make a category determination for the Gulf of Maine Atlantic herring purse seine fishery (71 FR 70347, December 4, 2006). NMFS should present the objective criteria used to evaluate the legitimacy of anecdotal data and how such use satisfies the requirements of the Data Quality Act.

Response: In the 2007 proposed LOF, NMFS proposed to remove the Gulf of Maine/Bay of Fundy stock of harbor porpoises from the list of species or stocks incidentally killed or seriously injured in the Gulf of Maine Atlantic herring purse seine fishery. The rationale for the removal of the harbor porpoise from this list comes from the most recent SAR (2005) which highlights the most recent 5 years of data (from 1999 2003) as well as anecdotal or historical information, as records of interaction. According to the SAR, there is currently no evidence indicating that harbor porpoises are killed or seriously injured in the Gulf of Maine Atlantic herring purse seine fishery (71 FR 70347, December 4, 2006). The removal of harbor porpoises from the list of species or stocks incidentally killed or injured has not resulted in a change in the category determination for the Gulf of Maine herring purse seine fishery, which is currently classified as a Category III fishery.

In order for the agency to determine which species or stocks are included as incidentally killed or seriously injured in a fishery, NMFS reviews the marine mammal incidental serious injury and mortality information presented in the most recent SARs for commercial fishing operations. Historical and/or anecdotal information is presented in the SARs to inform readers about past interactions and takes not observed through the fishery observer program. This information is not factored into the incidental take information that is collected through observer data. SARs are based on the best scientific information available at the time of preparation. The information contained in the SARs is reviewed by regional SRGs who review the science that informs the SARs and advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that may not be included in the SARs (71 FR 70342, December 4, 2006).

Information evaluated by NMFS that is disseminated to the public is required to comply with the Information Quality Act. The information used to classify fisheries for the 2007 LOF has undergone a predissemination review and is consistent with Information Quality Act requirements and NOAA guidelines. In the predissemination review, NMFS explains how the contents of the 2007 LOF meet the standards for utility, integrity, and objectivity established in the Information Quality Act and NOAA guidelines. The information in the 2007 LOF meets the standards for utility because it provides current, updated information on marine mammal abundance and serious injury and mortality rates that is beneficial or serviceable to the public and affected fisheries. The information in the 2007 LOF is provided in a publicly accessible and broadly available document, published in the Federal Register and available through paper and electronic media, in which the updated information is an improvement over previously available information. The contents of the 2007 LOF meet the standards for integrity because the 2007 LOF adheres to the standards set out in the Computer Security Act and the Government Information Security Reform Act for electronic information disseminated by NOAA. The information in the 2007 LOF also meets the standards for objectivity. The LOF is categorized as a natural resource plan for purposes of Information Quality Act compliance, an information product that is prescribed by law and has content, structure, and public review processes based upon published standards. The 2007 LOF meets the standards for objectivity because it is published in compliance with the requirements of the MMPA, National Environmental Policy Act, Endangered Species Act, Coastal Zone Management Act, Administrative Procedures Act, Paperwork Reduction Act, and Executive Orders 13132 and 12866. The 2007 LOF is supported by the best available information, which has been reviewed by independent technically qualified individuals (i.e., SRG members) to ensure that the information is valid, complete, unbiased, and relevant. The peer review process of evaluating the SARs through the SRG allows the agency to maximize the objectivity and utility of the information the SARs promote.

Comment 24: One commenter supported the removal of superscript ( 1 ) from bottlenose dolphin (WNA) and minke whale (Canadian east coast) under the mid-Atlantic gillnet fishery.

Response: The superscript ( 1 ) next to the offshore bottlenose dolphins and minke whale stocks be removed under the mid-Atlantic gillnet fishery. The superscript ( 1 ) was defined to denote if a stock was responsible for a current fishery's classification (71 FR 70347, December 4, 2006). The tier analysis conducted in 1996 that drove classification of the mid-Atlantic gillnet fishery from category III to category II focused on the incidental mortality and serious injury for harbor porpoise, coastal bottlenose dolphin, and humpback whales (60 FR 67081, December 28, 1995). For reclassification to a category I fishery, the tier analysis was based on coastal bottlenose dolphins (68 FR 1422, January 10, 2003). Though offshore bottlenose dolphins and minke whales have the potential to interact with the mid-Atlantic gillnet fishery, these species have not influenced the fishery classification or its elevation; therefore, the superscript (1) has been removed.

Comment 25: Two commenters viewed the category I Mid-Atlantic gillnet fishery as too broad in classification. The definition encompasses a large range of mesh sizes, areas, and gear deployments (sink and anchored gillnet, drift net, stab net, etc). This fishery should be stratified, perhaps by mesh size or target species. Stratification would allow for more precise estimation of marine mammal interactions by gear type and species targeted.

One commenter specifically recommended separating the bluefish and croaker portions from the generic mid-Atlantic gillnet fishery and re-designating each as either Category II or III. These fisheries have developed into two separate and distinct directed fisheries that are proven to pose little or no threat to marine mammals. The commenter reiterated a previous request that NMFS perform a separate Tier Analysis for both the bluefish and croaker portions of the mid-Atlantic gillnet fishery.

Response: NMFS acknowledges the information provided by the commenters on the potential for subdivisions within this fishery. Typically NMFS has bundled different targeted species into groups based on similar fishery characteristics unless there is information on marine mammal interaction rates or fishery operation to warrant a separate listing (see response to comment 4). Based on the best available (peer reviewed) information, NMFS does not find it appropriate to subdivide the bluefish and/or croaker mid-Atlantic gillnet fisheries at this time. The information currently available on the composition and distribution of the mid-Atlantic gillnet fishery and its incidental take levels is insufficient to identify distinct subcomponents of this fishery based on mesh size, area, or type of gear deployment. NMFS will investigate whether or not evidence exists to separate the bluefish and croaker portions of the mid-Atlantic gillnet fishery based on the criteria addressed above. If a reclassification is warranted, NMFS will propose these changes in a future LOF.

Comment 26: One commenter supported the addition of the mid-Atlantic flynet fishery as a Category II and encouraged NMFS to place observers aboard vessels in this fishery to obtain the necessary information to assess the frequency of interactions.

Response: The mid-Atlantic flynet fishery has been observed opportunistically out of Wanchese, NC. During observed trips, no marine mammal takes were observed. Since this is a Category II fishery, NMFS may place observers in the fishery to further assess the frequency of marine mammal interactions; however, initiation of observer coverage is dependent on resources. NMFS also notes that self-reporting of injuries and mortalities of marine mammals by fishers is required by the MMPA. For this purpose, NMFS developed the MMAP Mortality/Injury Report Form, which is available at: http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reportin_form.pdf

Comment 27: One commenter requested further information and description of the specific gear types used to list the mid-Atlantic flynet fishery as a category II by analogy with other category II bottom trawl fisheries.

Response: The flynet fishery was listed as a Category II fishery because of its similarities to other Category II bottom trawl fisheries in terms of gear configuration, seasons and areas fished, and target species. As described in the proposed rule, flynets are high profile trawls similar to bottom otter trawls, except that they fish just off the bottom, rather than on the bottom. Fishermen use flynets to target summer flounder, croaker, and weakfish in waters off North Carolina from October through April. The flynet fishery is analogous to the Category II mid-Atlantic bottom trawl fishery, which, as defined in the LOF, includes any bottom trawl gear targeting a wide range of species, including, but not limited to, monkfish, summer flounder (fluke), winter flounder, silver hake (whiting), spiny dogfish, smooth dogfish, scup, black sea bass, bluefish, and croaker. This fishery operates year-round from Cape Cod, MA to Cape Hatteras, NC. Because of the similarities between these two fisheries, they present a similar risk of serious injury and mortality to marine mammals; therefore, the mid-Atlantic flynet fishery warrants a Category II classification.

Comment 28: One commenter stated that several fisheries in the Gulf of Mexico are known to injure and kill marine mammals, particularly bottlenose dolphins. The commenter raised concern in previous letters from 2003, 2004, 2005, and 2006, about the uncertainties of interactions with Gulf of Mexico fisheries (in particular the Gulf of Mexico blue crab trap/pot fishery and the Gulf of Mexico menhaden purse seine fishery) and the unreliable information about bottlenose dolphin stock structure in the Gulf of Mexico. Since there is no evidence that research on bottlenose dolphin stock structure will take place in the near future, NMFS should expand its efforts to collect reliable information on interaction rates of marine mammals incidental to Gulf of Mexico fisheries, with priority given to an observer program for the Gulf of Mexico blue crab/trap pot fishery and the Gulf of Mexico menhaden purse seine fishery.

Response: Investigating bottlenose dolphin stock structure in the Gulf of Mexico is a high priority for NMFS, and efforts to update abundance estimates are underway. For northern Gulf of Mexico coastal stocks, aerial surveys began in January 2007 for the northern and eastern stocks from the mouth of the Mississippi River Delta to Key West, Florida. At least two abundance estimates per year are planned for the Bays, Sounds, and Estuarine stocks for the northern Gulf of Mexico. Additionally, a ship survey that will include the northern Gulf of Mexico continental shelf stock is being planned for the summer of 2007.

More information is needed on interactions rates with marine mammals in the Gulf of Mexico menhaden purse seine fishery. NMFS recently elevated this fishery to Category II based on documented serious injury and mortality to bottlenose dolphins. Because this is a Category II fishery, NMFS may place observers in the fishery to better assess the frequency of marine mammal interactions. While this fishery is a high priority for observer coverage, initiation of observer coverage is dependent on resources.

NMFS will continue to monitor blue crab fishing effort in the Gulf of Mexico and evaluate bottlenose dolphin strandings for evidence of trap/pot-related fishery interactions to determine the need for future reclassification of the fishery. NMFS has made efforts to train stranding responders in assessing and better documenting human interactions, and will continue efforts to work with the Gulf of Mexico Marine Fisheries Commission on outreach and derelict crab trap removals to reduce the risk of trap/pot interactions with marine mammals.

Comment 29: Two commenters recommended NMFS elevate the Gulf of Mexico blue crab trap/pot fishery to Category II based on the level of bottlenose dolphin mortality and serious injury obtained from available stranding data. The commenters also recommended NMFS elevate the Gulf of Mexico menhaden purse seine fishery to Category I. One commenter previously commented on the classification of these fisheries and the need for an observer program to obtain more reliable information about bottlenose stock structure and interactions with fisheries in the Gulf of Mexico in letters from 2003, 2004, 2005, and 2006.

Response: More information is needed on interaction rates with marine mammals in the Gulf of Mexico menhaden purse seine fishery, as well as an increased understanding of stock structure of bottlenose dolphins in this area. NMFS recently elevated this fishery to a Category II based on documented serious injury and mortality to bottlenose dolphins, thus, NMFS may place observers in the fishery to better assess the frequency of marine mammal interactions. At this time, NMFS believes that more information is needed prior to considering elevating this fishery to Category I.

Comment 30: One commenter recommended that NMFS elevate the Gulf of Mexico gillnet fishery to Category I.

Response: At this time, there is no evidence to support a Category I classification for the Gulf of Mexico gillnet fishery. This fishery is currently listed as a Category II based on analysis of bottlenose dolphin stranding data. NMFS will continue to monitor fishing effort and evaluate bottlenose dolphin strandings for evidence of gillnet-related fishery interactions in the Gulf of Mexico to determine the need for future reclassification of this fishery. As with other Gulf of Mexico fisheries interacting with bottlenose dolphins, this fishery is a high priority for observer coverage, but initiation of coverage is dependent on resources.

Comment 31: One commenter recommended NMFS elevate the Caribbean gillnet fishery to Category I because it is known to injure or kill Antillean manatees, a highly endangered species. Therefore, any mortality or serious injury results in levels above 50 percent of PBR.

Response: NMFS discussed this comment with the U.S. Fish and Wildlife Service (USFWS), the agency with responsibility for the Antillean manatee stock of the West Indian Manatee. The USFWS is unsure of the source of information used by the commenter to support the statement that the Caribbean gillnet fishery is “known to injure or kill Antillean manatees”. The commenter may have referenced the USFWS SAR for the Antillean stock of the West Indian Manatee. This SAR expresses concern for the status of the Antillean manatee as it relates to local fisheries. This SAR was written in 1995 and was reflective of the best available information present at that time. The USFWS has not updated this SAR since it was originally written. Pursuant to publication of the USFWS' forthcoming “Five-year Status Review of the West Indian Manatee” in 2007, which indicates that the status of manatees within this region is improving, the USFWS plans to update and revise the SAR for this stock. The revised SAR will incorporate the best currently available information and should address concerns that may be expressed regarding the impact of this fishery on the Antillean manatee.

The USFWS reviewed its records pertaining to the Antillean manatee within its range in Puerto Rico and the U.S. Virgin Islands. The latest mortality information from the region indicates that no mortalities or injuries from a historical fishery for manatees have been observed since 1995. These records also document a single manatee death attributed to an incidental entanglement in a gillnet over the same period of time. Therefore, elevation of the Caribbean gillnet fishery is not warranted at this time based on the low level of fisheries-related interactions over the past 12 years, combined with recent information suggesting that the status of manatees within this region is improving.

The following summarizes changes to the LOF for 2007 in fishery classification, fisheries listed on the LOF, the number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery. The placement and definition of U.S. commercial fisheries for 2007 are identical to those provided in the LOF for 2006 with the following exceptions.

The “AK Cook Inlet salmon set gillnet fishery” is elevated

from Category III to Category II.

The “WA, OR sardine purse seine fishery” is added to the LOF as a Category III fishery.

The “CA halibut bottom trawl fishery” is added to the LOF as a Category III fishery.

The “CA tuna purse seine fishery” is added to the LOF as a Category II fishery.

The “AK Cook Inlet salmon purse seine fishery” is added to the LOF as a Category II fishery.

The “AK Kodiak salmon purse seine fishery” is added to the LOF as a Category II fishery.

The “CA sardine purse seine fishery” is removed from the LOF.

The “CA herring purse seine fishery” is removed from the LOF.

The definition of superscript ( 1 )in “Table 1- List of Fisheries Commercial Fisheries in the Pacific Ocean” is modified from ”... 1 ...greater than 1 percent, but less than 50 percent of the stock's PBR” to read ”... 1 ...greater than 1 percent of the stock's PBR.”

The “Hawaii gillnet fishery” is renamed the “Hawaii inshore gillnet fishery”.

The “Hawaii purse seine fishery” is renamed the “Hawaii inshore purse seine fishery”.

The “CA yellowtail, barracuda, white seabass, and tuna drift gillnet (mesh size >3.5 inches and <14 inches) fishery” is renamed the “CA yellowtail, barracuda, and white seabass drift gillnet (mesh size >3.5 inches and <14 inches) fishery”.

The “CA anchovy, mackerel, tuna purse seine fishery” and the “CA sardine purse seine fishery” are reorganized by switching the sardine and tuna portions of the fisheries. The end result is the “CA anchovy, mackerel, sardine purse seine fishery” and the “CA tuna purse seine fishery”.

Number of Vessels/Persons

The estimated number of participants in the “Commonwealth of Northern Mariana Islands tuna troll fishery” is updated to 88.

The estimated number of participants in the “Guam tuna troll fishery” is updated to 401.

The estimated number of participants in the “American Samoa longline fishery” is updated to 60.

The estimated number of participants in the “Guam bottomfish fishery” is updated to 200.

The estimated number of participants in the “HI Main Hawaiian Islands, Northwestern Hawaiian Islands deepsea bottomfish fishery” is updated to 300. The waters surrounding the Northwestern Hawaiian Islands (NWHI), out to a distance of approximately 50 nmi from the islands, have been designated as part of the P pahanaumoku kea Marine National Monument by Proclamation 8031 (June 15, 2006). Proclamation 8031 limits the number of bottomfish fishery participants in the Monument to 8 commercial fishermen permitted at the time of designation to fish for certain species within particular zones in the Monument. These 8 permittees are authorized to continue fishing in the Monument until June 15, 2011.

The CA/OR/WA stocks of Baird's beaked whale, Cuvier's beaked whale, Mesoplodont beaked whale, pygmy sperm whale, and striped dolphin, the CA/OR/WA offshore stock of bottlenose dolphin, the Eastern North Pacific offshore stock of killer whale, the San Miguel Island stock of northern fur seal, and the Eastern U.S. stock of Steller sea lion are removed from the list of marine mammal species and stocks incidentally killed or injured by the “CA/OR swordfish/thresher shark drift gillnet fishery”. Also, the humpback whale stock from the list of marine mammal species and stocks incidentally injured or killed is changed from CA/OR/WA-Mexico to Eastern North Pacific.

The Eastern North Pacific stocks of humpback whale and gray whale, and the CA stock of harbor seal are added to the list of marine mammal species and stocks incidentally killed or injured in the “CA lobster, prawn, shrimp, rock crab, fish pot fishery”.

The Eastern North Pacific stock of humpback whale is added to the list of marine mammal species and stocks incidentally killed or injured in the “WA, OR, CA crab pot fishery”.

The proposed LOF for 2007 contained multiple errors in Table 1, “List of Fisheries Commercial Fisheries in the Pacific Ocean”, due to technical difficulties in merging the proposed 2007 LOF document between computers for printing in the Federal Register . These errors have been corrected in this final rule. Errors corrected in Table 1, in addition to general formatting errors, include:

Addition of the “AK Cook Inlet salmon purse seine fishery” as Category II. The text of the proposed rule proposed to add this fishery, but the addition was not reflected in Table 1.

Correction to the number of participants in the “American Samoa tuna troll fishery” from >50 to <50. The 2007 LOF did not propose to change the number of participants in this fishery; therefore, the change in the table was incorrect.

Addition of the South Central Alaska stock of sea otters to the list of marine mammal species or stocks incidentally killed or injured in the “AK Prince William Sound salmon drift gillnet fishery”. The deletion of this stock from Table 1 was incorrect. This stock remains a stock that is incidentally killed or injured in this fishery.

Deletion of common dolphin, stock unknown, from the list of marine mammal species or stocks incidentally killed or injured in the “CA tuna purse seine fishery”. There are no documented takes of any marine mammal species or stocks in this fishery.

Correction to the name change of the “CA anchovy, mackerel, sardine purse seine fishery”. This change was discussed in the text of the proposed rule but was not reflected in Table 1.

Correction of the number of participants in the “CA anchovy, mackerel, sardine purse seine fishery”. Table 1 should read 100 participants, not 110 participants.

The “Mid-Atlantic mid-water trawl (including pair trawl) fishery” is recategorized from Category I to Category II.

The “Mid-Atlantic flynet fishery” is added to the LOF as a Category II.

The definition of superscript ( 1 )in Table 2, “List of Fisheries Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean” is modified from ”... 1 ...greater than 1 percent, but less than 50 percent of the stocks PBR” to read ”... 1 ...greater than 1 percent of the stock's PBR.”

The definition of the “Southeastern U.S. Atlantic shark gillnet fishery” is clarified to include fishermen using gillnets set in a sink, stab, set, strike, or drift fashion to target sharks.

The definition of the “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery” is clarified to include fishermen using pelagic longlines to target or land dolphin and wahoo.

The language defining the “Northeast sink gillnet fishery”, the “Northeast anchored float gillnet fishery”, and the “Northeast drift gillnet fishery” is changed by removing ”...from the Maine/Canada border through the waters east of 72° 30′ W...” (62 FR 33, January 2, 1997) from all three fisheries descriptions and replacing this with ”...from the U.S./Canada border to Long Island, NY, at 72° 30′ W. long. south to 36° 33.03′ N. lat. and east to the eastern edge of the EEZ...”.

The list of target species associated with the “Northeast sink gillnet fishery” is expanded to include, but not be limited to: all species defined in the Northeast Multispecies FMP (American plaice, Atlantic cod, Atlantic halibut, haddock, ocean pout, offshore hake, pollock, red hake [ling], redfish, silver hake [whiting], white hake, windowpane flounder, winter flounder, witch flounder and yellowtail flounder), spiny dogfish, monkfish, shad, skate and mackerel.

The list of target species associated with the “Northeast anchored float gillnet fishery” is expanded to include, but not be limited to: shad, herring, mackerel and menhaden.

The list of target species associated with the “Northeast drift gillnet fishery” is expanded to include, but not be limited to: shad, herring, mackerel and menhaden.

The list of target species associated with the “Mid-Atlantic gillnet fishery” is expanded to include, but not be limited to: Atlantic croaker, mackerel, black drum, bluefish, herring, menhaden, scup, shad, striped bass, weakfish, white perch, yellow perch, shark (large and small coastal shark, dogfish), and monkfish, spot, and skate. Spot and skate were inadvertently deleted from the list of targets species in the proposed 2007 LOF. Spot and skate are targets species in this fishery and are added to the list of target species in the final 2007 LOF.

The type of gear associated with the “Mid-Atlantic gillnet fishery” is expanded to include gillnets set in a sink, stab, set, strike, or drift fashion, and any residual large pelagic driftnet effort in the mid-Atlantic.

The language defining the “Mid-Atlantic gillnet fishery” is changed by removing ”...west of 72° 30′ W. and north of a line extending due east from the North Carolina/South Carolina border...” (62 FR 33, January 2, 1997) and replacing this with ”...west of a line drawn at 72° 30′ W. long south to 36° 33.03′ N. lat. and east to the eastern edge of the EEZ and north of the North Carolina/South Carolina border...”.

NMFS clarifies in this final rule that the trap/pot effort targeting stone crab off Georgia is part of the Category II “Atlantic Mixed Species Trap/Pot Fishery”, which includes all trap/pot operations for species other than American lobster and blue crab from the Maine/Canada border through the waters east of the fishery management demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105). After the comment period for the proposed 2007 LOF closed, NMFS became aware of emerging pot fishery for stone crab operating in an area off Georgia not previously known to sustain a directed stone crab fishery. Stone crab pot fishing off Georgia is not considered part of the Category III “Southeastern US Atlantic, Gulf of Mexico Stone Crab Trap/Pot Fishery” because that fishery is tied to the Gulf of Mexico Stone Crab FMP, which only includes south Atlantic waters as far north as Miami. Therefore, NMFS clarifies that the list of target species associated with the “Atlantic mixed species trap/pot fishery” is expanded to include, but not be limited to: hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), white hake, spot, skate, catfish and American eel (not included in the LOF's “U.S. mid-Atlantic eel trap/pot fishery” description), and stone crab.

The number of participants in the “Southeastern U.S. Atlantic shark gillnet fishery” is updated to 30.

The number of participants in the “Mid-Atlantic gillnet fishery” is updated to >670.

The superscript ( 1 ) is removed from the Western North Atlantic stocks of common dolphins, long-finned pilot whales, and short-finned pilot whales under the “Mid-Atlantic mid-water trawl (including pair trawl) fishery” in Table 2.

The Western North Atlantic stock of Northern bottlenose whales is added to the list of species and stocks incidentally killed or injured in the “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery”.

The Gulf of Maine/Bay of Fundy stock of harbor porpoise is removed from the list of species or stocks incidentally killed or injured in the “Mid-Atlantic haul/beach seine fishery”.

The Gulf of Maine/Bay of Fundy stock of harbor porpoise is removed from the list of species or stocks incidentally killed or injured in the “Gulf of Maine Atlantic herring purse seine fishery”.

The superscript ( 1 ) is removed from the Western North Atlantic offshore stock of bottlenose dolphin and the Canadian east coast stock of minke whale under the “Mid-Atlantic gillnet fishery” in Table 2.

To correct a typographical error, the superscript (1) is

removed from the Western North Atlantic stock of harp seals under the “Northeast bottom trawl fishery” in Table 2.

The proposed LOF for 2007 contained multiple formatting errors and one substantive error in Table 2, “List of Fisheries Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean”, due to technical difficulties in merging the proposed 2007 LOF document between computers for printing in the Federal Register . These errors have been corrected in Table 2 of this final rule. The substantive error corrected removed the superscript (1) from the Western North Atlantic stock of harp seal from the “Northeast bottom trawl fishery”, which was discussed in the text of the proposed 2007 LOF but was not reflected in Table 2 of the proposed rule. The superscript (1) has been removed from Table 2 in this final rule.

The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants in a fishery, the number from the most recent LOF is used.

The tables also list the marine mammal species and stocks incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience mortality or injury in a given fishery, but also includes species or stocks for which there are anecdotal records of interaction. Additionally, species identified by logbook entries may not be verified. Not all species or stocks identified are the reason for a fishery's placement in a given category. NMFS has designated those stocks that are responsible for a current fishery's classification by a “ 1 ”.

There are several fisheries classified in Category II that have no recently documented interactions with marine mammals, or interactions that did not result in a serious injury or mortality. Justifications for placement of these fisheries, which are greater than 1 percent of a stock's PBR level, are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2. NMFS has designated those fisheries originally listed by analogy in Tables 1 and 2 by a “ 2 ” after the fishery's name.

Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.