The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to allow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on January 26, 2007 (72 FR 3771). That NPRM proposed to require performing a one-time detailed inspection of the shroud box bottom panel for cracks, fasteners missing or loose, damage, and marks; and applying all applicable corrective actions. The MCAI states that an A330 operator has reported a shroud box bottom panel missing during routine inspection. The same panel detached from an A330 aircraft during take-off, causing damages to the surrounding structure and to the Trimmable Horizontal Stabilizer (THS) tip fairing. Preliminary inspection has shown that the blind rivets used to attach the panel worked loose causing the panel to suffer fatigue damage with a crack propagation through the fastener line resulting in panel detachment. To avoid potential injuries to persons on ground, the MCAI mandates a one time detailed visual inspection of the shroud box bottom panel for cracks in the panel and for missing and loose fasteners, and repair if necessary.

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

The “Relevant Service Information” section of the NPRM, and paragraph (g) of the NPRM refer to Airbus Service Bulletin A330-57A3092, February 3, 2006, as one of the appropriate sources of service information to do the actions in the NPRM. However, in paragraph (e) of the NPRM, we inadvertently referred to Airbus Service Bulletin A330-57A3792, dated February 3, 2006. We have revised paragraph (e) of this AD accordingly.

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements, if any, take precedence over the actions copied from the MCAI.

We estimate that this AD will affect 27 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $4,320, or $160 per product.

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

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

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

For the reasons discussed above, I certify 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.

You may examine the AD docket on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on February 12, 2007 (72 FR 6500). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The MCAI requires:

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

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

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

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

We estimate that this AD will affect 149 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $23,840, or $160 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://dms.dot.gov ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on February 14, 2007 (72 FR 6982). That NPRM proposed to require compliance with Service Bulletin No. 25/53/03 issued by Latinoamericana de Aviación S.A. in order to detect cracks, evidence of corrosion or any other anomalies on support tubes of the horizontal stabilizer.

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

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements, if any, take precedence over the actions copied from the MCAI.

We estimate that this AD will affect 1,144 products of U.S. registry. We also estimate that it will take about 10 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $845 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,881,880, or $1,645 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://dms.dot.gov ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On Thursday, January 18, 2007, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward form 700 ft. and 1,200 ft. above the surface at Valdez Pioneer Field, AK (72 FR2213). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the Valdez Pioneer Field Airport. The approaches are (1) Localizer Type Directional Aid (LDA)/Distance Measuring Equipment (DME)-G, Original and (2) LDA-H, Original. The LDA-G is a Special SIAP and will not be published in the U.S. Terminal Procedures (Alaska) publication. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Valdez, AK area is revised by this action. In the Notice of Proposed Rulemaking, the airport name was not fully articulated. The full and proper designation (Valdez Pioneer Field) is included in this rule. The location of the localizer has also been updated to reflect accurate position.

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

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

This amendment to 14 CFR part 71 revises Class E airspace at the Valdez Pioneer Field Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at the Valdez Pioneer Field Airport, Valdez, Alaska.

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

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

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

On February 16, 2007, the Federal Energy Regulatory Commission issued Order No. 890, 1 which amends the regulations and the pro forma open access transmission tariff (OATT) to ensure that transmission services are provided on a basis that is just, reasonable and not unduly discriminatory or preferential.

This document contains guidelines for the electronic submission of OATT tariffs and other information required by Order No. 890. The table attached to the guidelines includes specific filing instructions and references to the pertinent paragraph(s) in Order No. 890 for each type of submission.

The Commission's electronic filing system can be accessed on its Web site at: http://www.ferc.gov/docs-filing/docs-filing.asp. An eRegistration account is required for all persons logging in to the system and for persons who will be listed as a primary contact or person responsible for the filing. At the present time, only public information can be submitted via the efiling system. However, all Order No. 890 OATT filings are considered public. The Commission prefers filings in text-searchable formats.

The electronic filing guidelines attached to this notice will also be available on the Commission's Web site at http://www.ferc.gov/help/how-to.asp and updated when necessary.

On February 16, 2007, the Federal Energy Regulatory Commission issued Order No. 890, 2 which amends the regulations and the pro forma open access transmission tariff (OATT) adopted in Order Nos. 888  3 and 889  4 to ensure that transmission services are provided on a basis that is just, reasonable and not unduly discriminatory or preferential.

This document contains guidelines for the electronic submission of OATT tariffs and other information required by Order No. 890. The attached table includes specific filing guidelines and references to the pertinent paragraph(s) in Order No. 890 for each type of submission.

The Commission's electronic filing system can be accessed on its web site at: http://www.ferc.gov/docs-filing/docs-filing.asp. An eRegistration account is required for all persons logging in to the system and for persons who will be listed as a primary contact or person responsible for the filing. At the present time, only public information can be submitted via the efiling system. However, all Order No. 890 OATT filings are considered public.

The Commission prefers filings in text-searchable formats. Our standard word processing application is MS Word, but the efiling system can also accept documents in WordPerfect and PDF formats. The Commission will add notice of these filings to its Combined Notice of Filing Report, so it is not necessary to include a “Form of Notice” file as part of an Order No. 890 OATT compliance submission.

The general eFiling procedure for Order No. 890 compliance OATT efilings is:

1. For Order No. 890 OATT compliance related submissions, the header of the document should contain OA07__000 (or OA08 after September 30, 2007) unless you are filing a correction or supplement to a previously assigned OA docket. NERC/NAESB submissions should refer to RM05-17 and RM05-25.

2. Select the filing type “Order No. 890 OATT”. For NERC/NAESB status reports only, select “Production of Document”.

3. On the Select Docket screen, enter OA07-1 in the docket number search block and select OA7-1-000 from the search results. A new OA Docket will be assigned to your submission. For NERC/NAESB status reports only, query and select dockets RM05-17 and RM05-25.

4. Before you browse, select, and attach the file(s) make sure that the file name is less than 25 characters and contains no spaces or special characters. There is a maximum number of 10 files per session and no file should be larger than 10 Mb.

5. On the Submission Description Screen, modify the default description:

(1) For OATT submissions, replace “Order No. 890 OATT” with the description information in the table for the appropriate filing type, or a comparable description, to describe your submission.

(2) For NERC/NAESB status reports only, replace “Production of Document” with the description information in the table for the appropriate filing type or a comparable description.

(3) For any amendment or correction to a prior submission, select the OA Docket assigned to the prior filing and add “Correction to”, “Supplement to”, or other appropriate indicator to the edited description of the filing.

6. Upon receipt, the eFiling system will send a Confirmation of Receipt e-mail to the e-mail address for the log in account.

Order No. 890 OATT submissions will be stored in eLibrary in the “Electric” library with Class = Application/Petition/Request, Type = Tariff Filing, and the OA docket number assigned to the submission.

NERC/NAESB status reports will be stored in the “Electric” library with Class = Status Report, Type = Status Report, and docket numbers RM05-17 and RM05-25.

Please be advised that all voluntary section 205 OATT related filings proposing variations from the non-rate terms and conditions contained in the pro forma OATT adopted in Order No. 890 will continue to be assigned ER Docket Numbers and will not be assigned OA Docket Numbers associated with the implementation of the Order No. 890 compliance filings. 5

If you are unable to file electronically, you must submit original and 5 paper copies of the filing to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.

1. This order addresses the request for rehearing filed by Edison Electric Institute (EEI) of the Commission's September 21, 2006 Order in this proceeding (September 21 Order), a final rule that clarified the definition of Critical Energy Infrastructure Information (CEII), required requesters of CEII to submit executed non-disclosure agreements (NDA) with their requests, and provided that the notice and opportunity to comment on a CEII request would be combined with the notice of release of information. Critical Energy Infrastructure Information , Order No. 683. 1 This order denies EEI's request for rehearing for the reasons explained below. 2

2. The Commission began its efforts with respect to CEII shortly after the attacks of September 11, 2001. See Statement of Policy on Treatment of Previously Public Documents. 3 The Commission issued a final rule on CEII on February 21, 2003, defining CEII to include information about proposed facilities, as well as facilities already licensed or certificated by the Commission, and to exclude information that simply identified the location of the infrastructure. See Order No. 630. 4 The final rule also established the position of CEII Coordinator. The Commission issued Order No. 630-A on July 23, 2003, 5 which made several minor procedural changes and clarifications, added a reference in the regulation regarding the filing of Non-Internet Public (NIP) information, a term first described in Order No. 630, 6 and added a commitment to review the effectiveness of the new process after six months.

3. Simultaneous with the issuance of the September 21 Order, the Commission issued a notice of proposed rulemaking (NOPR) in Docket No. RM06-23-000. 7 In the September 21 NOPR, the Commission sought comments on the revisions to its regulations to: (1) Allow an annual certification for repeat requesters; (2) allow an authorized representative of an organization to execute an NDA on behalf of the organization's employees; (3) include a fee provision; (4) respond to CEII requests by letters from the CEII Coordinator rather than by Commission orders with rights to rehearing; and (5) allow landowners access to alignment sheets for the routes across or in the vicinity of their properties. The September 21 NOPR also proposed to narrow the scope of information on Commission forms that are defined as containing CEII and proposed to abolish the NIP designation.

4. On October 23, 2006, EEI filed a timely request for rehearing of the September 21 Order, and requested that the Commission revoke its September 21 Order and reissue it as a new notice of proposed rulemaking to be considered with the September 21 NOPR. EEI alleged that the Commission did not provide the due process protections of the Administrative Procedure Act (APA), 5 U.S.C. 553, because the September 21 Order: (1) Modified the definition of CEII without proper notice and comment; (2) combined the notice and opportunity to comment with the notice of release; and (3) permitted the CEII Coordinator to enforce the CEII regulations by rejecting applications if information is mislabeled or legal justifications for CEII are not provided.

5. On November 2, 2006, the California State Agencies filed an untimely request for reconsideration. The California State Agencies requested that the CEII Coordinator allow flexibility to allow state agencies to execute non-disclosure agreements which depart from the standard state agency NDA found on the Commission's Web site. The California State Agencies further requested that the Commission amend its CEII regulations to exclude state agencies from the requirement of showing a need for access in their CEII requests, and to require the CEII Coordinator to grant state agencies access to CEII upon receiving a completed CEII request, including an executed NDA in a format acceptable to the Commission.

6. The California State Agencies' request for reconsideration is equivalent to an untimely request for rehearing. 8 Rule 713 of the Commission's Rules of Practice and Procedure requires that requests for rehearing be made within thirty days of the date of the order. 9 Rule 713(a)(1) provides that the rule is applicable “to any request for rehearing of a final Commission decision or other final order.” 10 The final date for filing a request for rehearing of the September 21 Order was October 23, 2006, 11 a deadline not met by the California State Agencies. However, the California State Agencies also filed their “Comments and Request for Reconsideration” in response to the September 21 NOPR. Their comments address issues raised in the September 21 NOPR and will be considered in that proceeding.

7. EEI's contention that any modification to the definition of CEII is substantive is without merit. The APA provides exemptions to its notice and comment rulemaking requirements. See 5 U.S.C. 553(b)(A). Specifically, interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice are exempt. Id. As the Commission's September 21 Order interprets its definition of CEII, it is not a substantive change requiring notice and comment. The Commission may interpret and clarify its regulations without making a substantive change. Courts have found that agency rules explaining terms in statutes and regulations are interpretive. 12 Courts have also held that rules that merely restate existing duties, rather than creating new duties, are interpretive. 13

8. A clarification “does not * * * become an amendment merely because it supplies crisper and more detailed lines than the authority being interpreted.” 14 Previously, the regulation stated that “Critical energy infrastructure information means information about proposed or existing critical infrastructure that: (i) Relates to the production, generation, transportation, transmission, or distribution of energy; (ii) Could be useful to a person in planning an attack on critical infrastructure; (iii) Is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and (iv) Does not simply give the location of the critical infrastructure.” 18 CFR 388.113(c)(1). The September 21 Order explained that “information about proposed or existing critical infrastructure” means “specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure.” 15 The clarification explained the existing term “information.” The clarification serves to advise the public of the Commission's construction of the term information as defined in Order No. 630. The September 21 Order also clarified the meaning of “relates to the production, generation, transportation, transmission, or distribution of energy.” The September 21 Order advised the public that it is the “details about the production, generation, transportation, transmission, or distribution of energy” that the Commission deems CEII. 16 These explanations and clarifications are merely interpretations and notice and comment are unnecessary.

9. EEI is mistaken that the combination of the notice and opportunity to comment with the notice of release eliminates due process rights of CEII submitters or reduces the notice from ten days to five days. Pursuant to 18 CFR 388.112, any person submitting documents to the Commission may request special treatment of some or all of the information found in the documents. Paragraph (d) of this section provides the standards for notifying the submitter of a request for the information, and states:

Paragraph (e) of this section provides the standards for notification prior to release of documents for which privileged treatment was requested, and states:

Thus, when the submitter of information requests confidential or CEII treatment of that information and opposes its release, the Commission will, by regulation, notify the submitter at least five days prior to disclosure. This allows the submitter an opportunity to respond, as well as to pursue an injunction against release in district court.

10. The Commission's regulations do not require separation of the opportunity to comment and notice of release. However, it was the Commission's practice in processing CEII requests to issue these notifications separately. As the Commission explained in its September 21 Order, combining the two will increase the efficiency of processing CEII requests. See September 21 Order at P 9-10. But those opposing release will continue to have ten days of notice before the information is released.

11. Contrary to EEI's assertion, there is no inconsistency in the application of the rules to CEII and FOIA requests. The combined notice that the Commission sends pursuant to the September 21 Order explains that a submitter has an opportunity (5-day minimum) to submit timely comments opposing release. See 18 CFR 388.112(d). It further explains that if the submitter provides timely comments, he or she will be notified in advance of the release of any information in accordance with 18 CFR 388.112(e) (another 5-day minimum). In other words, if the submitter provides comments, a second notice of release follows the first (a total of 10-day minimum). In the event timely comments opposing release are not received, the combined notice constitutes notice of release of the specified document in accordance with 18 CFR 388.112(e), subject to an appropriate non-disclosure agreement. The combined opportunity to comment and notice of release does not reduce the submitter's opportunity to respond or to pursue judicial relief.

12. The September 21 Order states that an application will be rejected in its entirety if information is mislabeled as CEII or a legal justification for CEII is not provided. The purpose of that rule is to dissuade applicants from carelessly using the CEII designation because such misuse prevents interested parties and other deserving members of the public from accessing needed information in the timeliest manner. As the Commission said in the September 21 NOPR, the “Commission retains its concern for CEII filing abuses and will take action against applicants or parties who knowingly misfile information as CEII.”  17 The Commission disagrees with EEI's assertion that rejection is unacceptably harsh. Applications are frequently rejected for failure to comply with procedural requirements. See , e.g. , ANR Pipeline Co. , 103 FERC ¶ 61,261 at P 8 (2003) (rejecting filing without prejudice to filing a fully supported application in accordance with the Commission's regulations). In instances in which documents are rejected for filing, the rejection is usually without prejudice and no substantive rights are lost. Id. The application must merely be refiled in accordance with the procedural requirements. That is not harsh, but rather promotes the proper use of the CEII designation.

The Commission orders:

EEI's request for rehearing is denied as described above. The California State Agencies' request for reconsideration is rejected in this docket as untimely filed.

Section 343(a) of the Trade Act of 2002, as amended (the Act; 19 U.S.C. 2071 note), required that CBP promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP-approved electronic data interchange (EDI) system before the cargo is brought into or departs the United States by any mode of commercial transportation (sea, air, rail or truck). The cargo information required is that which is reasonably necessary to enable high-risk shipments to be identified for purposes of ensuring cargo safety and security and preventing smuggling pursuant to the laws enforced and administered by CBP.

On December 5, 2003, CBP published in the Federal Register (68 FR 68140) a final rule to effectuate the provisions of the Act. In particular, a new section 123.92 (19 CFR 123.92) was added to the regulations to implement the inbound truck cargo provisions. Section 123.92 describes the general requirement that, in the case of any inbound truck required to report its arrival under section 123.1(b), if the truck will have commercial cargo aboard, CBP must electronically receive certain information regarding that cargo through a CBP-approved EDI system no later than 1 hour prior to the carrier's reaching the first port of arrival in the United States. For truck carriers arriving with shipments qualified for clearance under the FAST (Free and Secure Trade) program, section 123.92 provides that CBP must electronically receive such cargo information through the CBP-approved EDI system no later than 30 minutes prior to the carrier's reaching the first port of arrival in the United States.

On September 13, 2004, CBP published a notice in the Federal Register (69 FR 55167) announcing a test allowing participating Truck Carrier Accounts to transmit electronic manifest data for inbound cargo through ACE, with any such transmissions automatically complying with advance cargo information requirements as provided in section 343(a) of the Trade Act of 2002. Truck Carrier Accounts participating in the test were given the ability to electronically transmit the truck manifest data and obtain release of their cargo, crew, conveyances, and equipment via the ACE Portal or electronic data interchange messaging.

A series of notices announced additional deployments of the test, with deployment sites being phased in as clusters. Clusters were announced in the following notices published in the Federal Register : 70 FR 30964 (May 31, 2005); 70 FR 43892 (July 29, 2005); 70 FR 60096 (October 14, 2005); 71 FR 3875 (January 24, 2006); 71 FR 23941 (April 25, 2006); 71 FR 42103 (July 25, 2006), 71 FR 77404 (December 26, 2006) and 72 FR 7058 (February 14, 2007).

CBP continues to test ACE at various ports. CBP will continue, as necessary, to announce in subsequent notices in the Federal Register the deployment of the ACE truck manifest system test at additional ports.

In a notice published October 27, 2006 (71 FR 62922), CBP designated the Automated Commercial Environment (ACE) Truck Manifest System as the approved EDI for the transmission of required data and announced that the requirement that advance electronic cargo information be transmitted through ACE would be phased in by groups of ports of entry.

ACE will be phased in as the required transmission system at some ports even while it is still being tested at other ports. However, the use of ACE to transmit advance electronic truck cargo information will not be required in any port in which CBP has not first conducted the test.

The October 27, 2006, document identified all land border ports in the states of Washington and Arizona and the ports of Pembina, Neche, Walhalla, Maida, Hannah, Sarles, and Hansboro in North Dakota as the first group of ports where use of the ACE Truck Manifest System is mandated. Subsequently, CBP announced on January 19, 2007 (72 FR 2435) that, after 90 days notice, the use of the ACE Truck Manifest System will be mandatory at all land border ports in the states of California, Texas and New Mexico. On February 23, 2007 (72 FR 8109), CBP announced that, again after 90 days notice, the ACE Truck Manifest System will be mandatory at all land border ports in Michigan and New York, as well.

Applicable regulations (19 CFR 123.92(e)) require CBP, 90 days prior to mandating advance electronic information at a port of entry, to publish notice in the Federal Register informing affected carriers that the EDI system is in place and fully operational. Accordingly, CBP is announcing in this document that, effective 90 days from the date of publication of this notice, truck carriers entering the United States through land border ports of entry in the states of Vermont and New Hampshire and through the ports of St. John, Fortuna, Ambrose, Carbury, Noonan, Dunseith, Sherwood, Antler, Northgate, Westhope, and Portal, in the state of North Dakota, will be required to present advance electronic cargo information regarding truck cargo through the ACE Truck Manifest System. Together with the ports announced in 71 FR 62922, use of the ACE Truck Manifest System will, 90 days from the date of publication of this notice, be mandatory in all land border ports in the state of North Dakota, as well as the land border ports in the states of Vermont and New Hampshire.

Although other systems that have been deemed acceptable by CBP for transmitting advance truck manifest data will continue to operate and may still be used in the normal course of business for purposes other than transmitting advance truck manifest data, use of systems other than ACE will no longer satisfy advance electronic cargo information requirements at the ports of entry announced in this document as of July 12, 2007.

CBP will be publishing subsequent notices in the Federal Register as it phases in the requirement that truck carriers utilize the ACE system to present advance electronic truck cargo information at other ports. ACE will be phased in as the mandatory EDI system at the ports identified below in the sequential order in which they are listed. The sequential order provided below is somewhat different than that announced in the October 27, 2006, notice. Although further changes to this order are not currently anticipated, CBP will state in future notices if changes do occur. In any event, as mandatory ACE is phased in at these remaining ports, CBP will always provide 90 days' notice through publication in the Federal Register prior to requiring the use of ACE for the transmission of advance electronic truck cargo information at a particular group of ports.

The remaining ports at which the mandatory use of ACE will be phased in, listed in sequential order, are as follows:

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

2. All land border ports in the state of Maine.

3. All land border ports in the states of Alaska and Minnesota.

The temporary regulations that are the subject of this correction are under section 368 of the Internal Revenue Code.

As published, temporary regulations (TD 9313) contain an error that may prove to be misleading and is in need of clarification.

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).

This amendment (1) adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during May 2007, (2) adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during May 2007, and (3) adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during May 2007.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.20 percent for the first 20 years following the valuation date and 4.87 percent thereafter. These interest assumptions represent an increase (from those in effect for April 2007) of 0.21 percent for the first 20 years following the valuation date and 0.21 percent for all years thereafter.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent an increase (from those in effect for April 2007) of 0.25 percent in the immediate annuity rate and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during May 2007, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

The OCS Lands Act (OCSLA) at 43 U.S.C. 1333, mandates “The Constitution and laws and civil and political jurisdiction of the United States (U.S.) are extended to the subsoil and seabed of the OCS and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources * * *” Those laws include the ESA and the MMPA. Every lease the MMS issues contains a requirement that the lessee must comply with applicable laws. The OCSLA at 43 U.S.C. 1332, requires “* * * expeditious and orderly development, subject to environmental safeguards * * *”

The MMS, as a Federal agency, has a duty to carry out agency actions and authorizations in a manner that is not likely to jeopardize species listed under the ESA or result in the destruction or adverse modification of designated critical habitat, or have more than a negligible impact on marine mammals or the availability of marine mammals for subsistence use under the MMPA.

Section 7(a)(1) of the ESA, 16 U.S.C. 1536(a)(1), mandates that the “Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.” Therefore, based on all of the above, it is the responsibility of the MMS to require that lessees and operators conduct their activities in a manner that is consistent with the provisions of the ESA and the MMPA.

For these reasons, the MMS is amending 30 CFR part 250, subpart B—Plans and Information, to specify that lessees must provide specific environmental information concerning threatened or endangered species listed under the ESA and marine mammals protected under the MMPA. Information in the form of impact-monitoring data will be required when submitting plans for approval, and also while operating on the OCS. The MMS must often require mitigation measures and monitoring by lessees operating on the OCS. Mitigation and monitoring must be non-discretionary if the operations we permit may result in an incidental take. If incidental take were to occur, the Services would not consider incidental take prohibited under the ESA providing the take is in compliance with the terms and conditions of the incidental take statement. The ESA defines the term “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

In order to monitor the incidental take of listed species, the ESA section 7 regulations require reporting. Monitoring programs resulting from the ESA section 7 (interagency) consultations are designed to:

(a) Detect adverse effects resulting from a proposed action;

(b) Assess the actual level of incidental take in comparison with the level of anticipated incidental take documented in the biological opinion;

(c) Detect when the level of anticipated incidental take is exceeded; and

(d) Determine the effectiveness of reasonable and prudent measures and their implementing terms and conditions.

In addition, there can be no relief from the ESA section 9 prohibitions regarding listed marine mammals until take of marine mammals has been authorized under the MMPA and its 1994 amendments. The MMPA defines take as “to harass (injure or disturb), hunt, capture, kill, or attempt to harass, hunt, capture or kill any marine mammal.” The MMPA has mitigation, monitoring and reporting requirements similar to the ESA.

The MMS has been required by the National Oceanic and Atmospheric Administration (NOAA) through several ESA section 7 consultations to adopt mitigation, monitoring, and reporting requirements. These non-discretionary requirements are related to mitigating the effects of noise, vessel traffic, and marine trash and debris (specific measures have been included in Alaska OCS Region project specific permits or Gulf of Mexico OCS Region lease stipulations and Notices to Lessees (NTLs), such as: Vessel Strike Avoidance and Injured/Dead Protected Species, Marine Trash and Debris Awareness and Elimination, Structure Removal Operations, and Implementation of Seismic Survey Mitigation). The ESA implementing regulations at 50 CFR 402.14(i)(3) state that, “In order to monitor the impacts of incidental take, the Federal agency or any applicant must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement.” The MMS must have the Office of Management and Budget (OMB) Information Collection (IC) approval before collecting and using the information required by the ESA section 7 consultations. The MMS has received the OMB IC approval for the non-discretionary requirements identified above (see the Paperwork Reduction Act (PRA) discussion under Procedural Matters).

These regulatory changes to subpart B will incorporate the general ESA information requirements. The revisions to subpart B require industry to comply with specific environmental laws in a general way. The final rule will assure that lessees mitigate for potential takes of protected species and monitor for potential takes of protected species to aid in assessing the actual level of take and the effectiveness of the mitigation.

The information requirement under this final rule will not substitute for a Letter of Authorization or Incidental Harassment Authorization. The MMS does not have authority through the reporting requirements to authorize the taking of any marine mammal under the MMPA. This final rule does not enable the MMS to make determinations under the ESA or the MMPA on the level or significance of takings that could occur or otherwise substitute the MMS judgment for the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) of the NOAA. The purpose of this final rule is to require that lessees describe how they will mitigate the potential for takes to occur, monitor for potential takes, and report any takes, should they occur.

The requirements concerning the contents of the Exploration Plans (EP) are amended in the following sections:

• § 250.216(a)—biological environmental reports must address federally listed species and designated critical habitat as well as marine mammals;

• § 250.221(b)—monitoring systems must address federally listed species and marine mammals if there is reason to believe the exploration activities may result in an incidental take;

• § 250.223—mitigation measures must address federally listed species and marine mammals if there is reason to believe the exploration activities may result in an incidental take; and

• § 250.227—environmental impact analysis information must be as detailed as necessary to support the MMS's effort to comply with the ESA and the MMPA by analyzing the potential direct and indirect impacts of exploration activities on federally listed species and marine mammals.

The requirements concerning the contents of the Development and Production Plans (DPP) and the Development Operations Coordination Documents (DOCD) are amended in the following sections:

• § 250.247(a)—biological environmental reports must address federally listed species and designated critical habitat as well as marine mammals;

• § 250.252(b)—monitoring systems must address federally listed species and marine mammals if there is reason to believe the development and production activities may result in an incidental take;

• § 250.254—mitigation measures must address federally listed species and marine mammals if there is reason to believe the development and production activities may result in an incidental take;

• § 250.261—environmental impact analysis information must be as detailed as necessary to support our effort to comply with the ESA and the MMPA by analyzing the potential direct and indirect impacts of development and production activities on federally listed species and marine mammals;

• § 250.270—correcting the citation at § 250.270(a)(1)(i) that currently reads “267(a)(1),” to “250.267(a)(1),”; and

• § 250.282—the post-approval requirements for the EP, the DPP, and the DOCD are amended to require that post-approval monitoring programs must include monitoring in accordance with the ESA and the MMPA requirements.

The MMS published a proposed rule on September 6, 2005 (70 FR 52953). The public comment period ended November 7, 2005. On October 25, 2005, we published notice of a 60-day extension to the comment period (January 6, 2006) because of the damage and subsequent flooding in the Gulf of Mexico (GOM) area caused by Hurricanes Katrina and Rita (70 FR 61589). The extension provided additional time to the oil and gas industry for reviewing and preparing comments to the rule. Comments on the proposed rule came from the FWS, the Humane Society of the United States, the Alaska Eskimo Whaling Commission, the Center for Regulatory Effectiveness, ConocoPhillips Alaska Inc., and ExxonMobil. All comments were posted on the MMS Internet Web site. A summary of the comments received on the proposed rule and our responses to the comments follow:

Comment: The FWS supports the proposed amendments as they will benefit the MMS and lessees by expediting the ESA section 7 consultation process and assist lessees in complying with the ESA and the MMPA.

Response: The regulatory changes will lead to a common understanding of how MMS is implementing, and will implement in the future, the terms and conditions of incidental take statements under the ESA and the MMPA.

Comment: The FWS recommended expanding the proposed amendments to include information for proposed species and proposed critical habitat to expedite formal consultation following an eventual listing or designation of critical habitat. In such circumstances, the FWS could prepare a conference opinion that can be quickly converted to a biological opinion, thereby preventing or reducing disruption to a lessee's ongoing operations.

Response: The MMS agrees that having information on proposed species and proposed critical habitat would expedite the FWS and the NMFS preparing a biological opinion when a species is listed or critical habitat designated. However, we will not require operators and lessees to include monitoring or mitigation information for proposed or candidate listings or candidate designations in their plans. An ESA conference is required only when a proposed action is likely to jeopardize the continued existence of a proposed species or destroy or adversely modify proposed critical habitat.

When a new species is listed or critical habitat designated, and it is necessary to reinitiate a formal consultation, the existing opinion remains valid until revised or reissued. Therefore, while including a candidate species (petitioned species that are actively being considered for listing as threatened or endangered under the ESA) in a formal consultation is not required by law, we believe the existing ESA consultation process is flexible and can respond to proposed species listings or proposed critical habitat designations. We also believe the administrative process associated with listing species or designating critical habitat would allow sufficient time for the MMS, the FWS, and the NMFS to address the information available.

Comment: The FWS recommended including critical habitat in the monitoring and reporting requirements, if applicable, to assist the MMS in knowing whether it was necessary to reinitiate an ESA section 7 consultation (50 CFR 402.16(b)).

Response: If a formal consultation results in specific reasonable and prudent alternatives to avoid adverse modification of a designated critical habitat, then the Regional Supervisor has discretion under § 250.282 to direct the lessee/operator to conduct post-approval monitoring programs in accordance with the ESA. All data from the monitoring programs must be made available to the MMS upon request. No change to the rule is necessary.

Comment: The FWS recommended extending the requirement for mitigating measures to include critical habitat, where applicable, since it is possible that future designations and biological opinions could include conservation measures to ensure critical habitat is not adversely modified or destroyed.

Response: Regulations at 30 CFR 250.227(b)(4) and 250.261 require lessees to provide impact analysis information on “Threatened or endangered species and their critical habitat” and at 30 CFR 250.227(c)(4) to “Describe potential measures to minimize or mitigate these potential impacts.” In addition, should measures to prevent habitat degradation be included in lease stipulations, 30 CFR 250.222 and 250.253 require lessees to provide “A description of the measures you took, or will take, to satisfy the conditions of lease stipulations.” No change to the rule is necessary.

Comment: The FWS recommended an editorial correction in SUPPLEMENTARY INFORMATION to change “reasonable and prudent alternatives” to “reasonable and prudent measures,” which have implementing terms and conditions.

Response: The SUPPLEMENTARY INFORMATION has been changed accordingly.

Comment: The Humane Society supports the MMS acknowledging the importance of complete information regarding potential impacts of leasing activities on protected species and post-activity monitoring.

Response: No change required.

Comment: The Humane Society expressed concern that there is no requirement in the proposed rule for applicants to provide information on baseline conditions or to conduct baseline monitoring. The Humane Society further commented that the lack of baseline information makes impossible reasonable statements about the consequences of activities, thus negating the utility of post-activity monitoring.

Response: The MMS believes the existing requirements in § 250.227(b)(3) and (4) (What environmental impact analysis (EIA) information must accompany the EP and § 250.261(b)(3) and (4) (What environmental impact analysis (EIA) information must accompany the DPP or DOCD) address this concern. The information in the EIA, which must accompany plans, requires the lessee to describe those resources (identified as marine mammals and threatened and endangered species and their critical habitat) and conditions that could be affected by proposed exploration, or development and production activities. No change to the rule is necessary.

Comment: The Humane Society expressed concern that the requirement for lessees to submit plans for mitigation measures would allow lessees to suggest measures ad hoc and rely on previous assertions of the effectiveness of mitigation measures without fully considering evidence that questions efficacy. This limits the MMS's ability to assess the potential cumulative impacts from a number of projects taking place along the range of marine mammal species, and identify the most meaningful mitigation measures for similar activities.

Response: The MMS's ability to assess potential cumulative impacts is not limited to the OCSLA and subpart B regulations. We assess activities, mitigation measures, and cumulative impacts through the CZMA, the NEPA, and the ESA. The MMS believes §§ 250.231 through 235 and §§ 250.266 through 273 address this concern. We must review all plans and determine if the information is sufficient and accurate. After review, we may request the lessee to revise or modify a plan as necessary. Plans must also be submitted to the States for consistency review and determination under the Coastal Zone Management Act (CZMA). We also evaluate the environmental impact of exploration, development, and production activities, including mitigation measures, and prepare environmental documentation under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq. ) and the implementing regulations (40 CFR parts 1500 through 1508). In addition, the ESA consultation process also allows for a meaningful analysis of mitigation for threatened and endangered species. The results of consultation are included in the biological opinion and associated incidental take statements. No changes to the final rule are necessary.

Comment: The Center for Regulatory Effectiveness commented that the MMS should comply with the PRA before proceeding further with the rulemaking. They asserted that the proposed rule contains new IC requirements that were not reviewed and approved by OMB under 1010-0151.

Response: The MMS disagrees that the proposed rule does not comply with the PRA. This proposed rule clarifies information requirements for plans and accompanying information in subpart B already approved under the OMB Control Number 1010-0151. Section 250.202 in subpart B clearly states, “Your EP, DPP, or DOCD must demonstrate that you have planned and are prepared to conduct the proposed activities in a manner that: (a) Conforms to the OCSLA as amended, applicable implementing regulations, lease provisions and stipulations, and other Federal laws * * *” We also have the OMB approval for all the requirements associated with trash and debris, vessel collisions, and seismic survey mitigation and monitoring activities (NTLs) required through the ESA section 7 consultation with the NMFS (OMB Control Number 1010-0154, 22,305 burden hours). When this rule becomes effective, we will consolidate the requirements and burdens from 1010-0154 into the primary collection for 30 CFR part 250 subpart B, 1010-0151.

Comment: ConocoPhillips Alaska Inc., recommended the MMS withdraw the rule as unnecessary or revise and reissue the rule to clarify: how lessees should develop monitoring, mitigation, and reporting programs for listed species prior to completion of the ESA section 7 consultation; and the manner in which lessees should determine if take under the ESA or the MMPA is reasonably certain to occur.

Response: In general, the agency will not require lessees to develop additional monitoring, mitigation, or reporting plans for listed species prior to completion of ESA Section 7 consultations. We intend that lessees rely on the conditions provided in the completed relevant Section 7 consultations to determine the appropriate mitigation, monitoring, and reporting requirements that should be part of Exploration Plans. The MMS consults under the ESA with the FWS and the NMFS on every lease sale and all activities associated with exploration, development, production, and decommissioning before a lease sale occurs. Therefore, activities associated with a lease already require a determination as to whether the activities are likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. That determination is the subject of the biological opinion. If take of a listed species is anticipated, an associated incidental take statement describes the reasonable and prudent measures and implementing terms and conditions. Should we reinitiate a consultation and the reasonable and prudent measures and implementing terms and conditions change, we would notify lessees and operators. The FWS or the NMFS clarify in the biological opinion and incidental take statements the manner and extent of anticipated take, as well as any mitigation, monitoring, and reporting requirements associated with minimizing such take.

Section 7(a)(2) of ESA requires each Federal Agency to consult with the Secretary to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. In fulfilling these requirements, each agency is to use the best scientific and commercial data available. The ESA section 7 consultation process is a cooperative process. The Services do not have all the answers and actively seek the views of the action agency and its designated representatives in preparing the biological opinion, developing reasonable and prudent alternatives, reasonable and prudent measures, terms and conditions to minimize the impacts of incidental take, and conservation recommendations. Whenever incidental take of a marine mammal is anticipated, the Services may not issue an incidental take statement under the ESA for the marine mammal until such take is authorized under section 101(a)(5) of the MMPA. Following the MMPA authorization, the Service may amend the biological opinion to include the incidental take statement for marine mammals, as appropriate.

The MMPA implementing regulations specify that incidental take authorizations will set forth permissible methods of taking, and requirements or conditions pertaining to monitoring and reporting after citizens engaged in the specific activity provide a detailed description of the activity, the manner and extent of incidental take and the means of effecting the least practicable impact upon the marine mammal. In such cases when incidental take of listed marine mammal requires MMPA authorization, the Secretary will set forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified in the incidental take statement. Lessees and operators must decide whether a take is reasonably likely to occur in deciding whether to file a petition with the FWS or the NMFS for incidental take under the MMPA. By statute and regulation, notice of petitions and authorizations for incidental take must be published in the Federal Register . Specific examples would include petitions involving activities such as pile driving, seismic surveys, and structure removals using explosives. In addition, under the MMPA implementing regulations (50 CFR 216.104), in order for the NMFS to consider authorizing take by U.S. citizens, or to make a finding that an incidental take is unlikely to occur, a written request must be submitted to the Assistant Administrator. The information required in the request is specified in the same section. No changes to the rule are necessary.

Comment: ConocoPhillips Alaska Inc., disagrees with the position reflected in the proposed rule that the ESA or the MMPA expand the MMS's existing statutory authority. The MMS may not impose the ESA- or the MMPA- related requirements upon lessees or operators unless such requirements are necessary and authorized under the MMS's enabling legislation.

Response: This final rule is consistent with our mandate under the OCSLA. Under §§ 1333 and 1334 of the OCSLA, the MMS must ensure that the proposed activities will comply with other applicable Federal laws and regulations, which may include the Clean Air Act (CAA), the ESA, the MMPA, the National Historic Preservation Act, the CZMA, and the Clean Water Act. Section 25(c) of the OCSLA (43 U.S.C. 1351(c)) mandates the scope and content of oil and gas development and production plans include “environmental safeguards to be implemented.” In addition, section 11 of the OCSLA (43 U.S.C. 1340) states that any permits for geological explorations shall be issued only if the Secretary determines “such exploration will not be unduly harmful to aquatic life in the area, result in pollution, create hazardous or unsafe conditions, unreasonably interfere with other uses of the area, or disturb any site, structure, or object of historical or archaeological significance.” The regulations at 30 CFR part 250 subpart B are intended to enable the MMS to carry out these responsibilities under the OCSLA. No changes to the rule are necessary.

Comment: ConocoPhillips Alaska Inc., disagrees that the MMS, and by extension, lessees or operators are somehow obligated to monitor and report take under the ESA in the absence of an affirmative finding that a proposed action is either likely to adversely affect a listed species, or adversely modify designated critical habitat.

Response: This rule intends to apply to lessees' activities that have been the subject of ESA Section 7 consultations where the consultations resulted in specific terms and conditions requiring mitigation, monitoring, and reporting. The MMS consults under section 7 of the ESA with the FWS or the NMFS on every lease sale and all activities associated with exploration, development, production, and decommissioning. Section 7 consultation is required for any proposed action that “may affect” listed species or designated critical habitat. No formal consultation is required if a proposed action “may affect, but is not likely to adversely affect” listed species or critical habitat. Therefore, every activity associated with a lease already requires a determination as to whether an activity is likely to adversely affect listed species or designated critical habitat. If adverse effects are likely, MMS will enter into a formal consultation during which a biological opinion on whether listed species would likely be jeopardized or critical habitat destroyed or adversely modified would be prepared. There are documents prepared by Federal agencies or those responsible for conducting activities during such consultations that describe adverse effects to listed species and critical habitat. In those cases where the Services provide a statement of incidental take with a biological opinion, the ESA specifies the Secretary must set forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified in the incidental take statement. No changes to the rule are appropriate.

Comment: ConocoPhillips Alaska Inc., expressed concern that the proposed rule does not address the potential impact of proposed Threatened and Endangered Species Recovery Act (TESRA) legislation (H.R. 3824), and therefore, should be delayed until Congress takes action on H.R. 3824.

Response: The MMS disagrees that we should wait for Congress to act on the TESRA, H.R. 3824. It cannot be known when and in what form such legislation may be passed. The MMS has reviewed the H.R. 3824. None of the proposed amendments to the ESA would change the information requirements for plans submitted by lessees to the MMS. The MMS still has a responsibility under the OCSLA to review and approve plans before activities may be conducted and to ensure that activities will comply with other applicable Federal laws and regulations currently in effect.

Comment: ConocoPhillips Alaska Inc., expressed concern that the proposed rule uses “take” interchangeably under the ESA and the MMPA and does not explain the statutory differences between take under the ESA and the MMPA.

Response: “Take” has been defined by statute and implementing regulations for both the ESA and the MMPA. The MMS need not repeat those definitions in our regulations. Every person has a responsibility to comply with those laws and understand their meaning. The term “take” is defined by the ESA to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Harass has further been defined by FWS regulations to mean “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to breeding, feeding, or sheltering.” Harm means “an act which actually kills or injures wildlife.”

The MMPA defines take to mean “to harass, hunt, capture, collect, kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal.” The Act further defines Level A and Level B harassment as “any act of pursuit, torment or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild” or any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild * * *”

Comment: ConocoPhillips Alaska Inc., disagrees that the proposed rule will result in “no additional costs” because it merely clarifies requirements that already exist.

Response: The MMS disagrees that this rule results in additional costs. Whether we list the specific ESA or MMPA provisions in the regulations or not, current subpart B still requires lessees to provide the appropriate biological information with their plans. The amendments to subpart B do not add any additional information requirements, nor do the amendments require any additional information beyond what is already required under the ESA or the MMPA. Putting these specific provisions in the 250 regulations specifies what information is needed to ensure compliance with subpart B, the ESA, and the MMPA.

Comment: The Alaska Eskimo Whaling Commission commented that the proposed rule does not state the MMPA standard that incidental take of marine mammals “will not have an unmitigable adverse impact on the availability [of marine mammals] for taking for subsistence uses.” The final rule should reflect this standard.

Response: Stating the MMPA standards is beyond the scope of this rule. The scope of this rule is limited to existing regulatory information requirements for plans submitted by lessees/operators. Our Alaska Region offers to meet with the Alaska Eskimo Whaling Commission and the NMFS to further discuss this standard and other MMPA-related issues. Such discussions have begun informally at the open water meeting forum and MMS hopes to expand those discussions as they begin the Multisale process for 2007-2012 lease sales.

Comment: The Alaska Eskimo Whaling Commission commented that the proposed rule gives the MMS the opportunity to issue clear guidance to applicants proposing activities in the Alaskan OCS. Specifically, applicants must demonstrate their ability to meet the MMPA's “no unmitigable adverse impact” standard; and the MMS should use §§ 250.220 and 250.251 to inform its Alaskan OCS applicants of the information requirements relevant to the protection of subsistence species. They suggested specific wording for programs currently in operation, such as conflict avoidance agreements and good neighbor agreements.

Response: As offered in the previous response, the proposals are beyond the scope of this rulemaking. The MMS Alaska Region offers to meet with the Alaska Eskimo Whaling Commission to further discuss the suggestion.

Comment: The Alaska Eskimo Whaling Commission commented that the MMS should clarify its requirements for information from applicants in the sections on Environmental Impact Analysis. The MMS should clarify that it will independently verify and evaluate all analyses submitted by applicants. The MMS should also avoid requiring analyses or assessments in favor of requiring applicants to “identify” or “describe” potential impacts that will assist the MMS in its environmental reviews under the NEPA, the ESA, and the MMPA. Finally, we should adopt the NEPA definition of “cumulative impacts” to encourage applicants to provide the most comprehensive information to the MMS.

Response: Sections 250.227 and 250.261 are specific in stating that the information must be as detailed as necessary to assist us in complying with the NEPA and other Federal laws. Further, under 40 CFR 1506.5, the MMS must independently evaluate the information submitted and be responsible for its accuracy. Cumulative impacts are defined under the ESA (50 CFR 402.02) and the NEPA (40 CFR 1508.7). It is not necessary to repeat those requirements or definitions in our regulations.

Comment: ExxonMobil expressed concern that the proposed rule assumes that offshore oil and gas activities will result in “takes” of marine mammals and endangered species rather than basing the rule on a sound scientific assessment of risk. Further, it places a burden on industry to define what a “take” is for the purposes of the ESA and the MMPA.

Response: The rule does not assume offshore oil and gas activities will result in “takes.” Through Agency to Agency consultations, the FWS or the NMFS clarifies in the biological opinion and incidental take statements the manner and extent of anticipated take. The rule clearly specifies information regarding monitoring and mitigation measures would only be necessary in those cases where there is “reason to believe that protected species may be incidentally taken.” “Reason to believe” is an objective standard whereby a reasonable person is looking at all the available facts and factors, it does not pre-determine take. This is also why §§ 250.221, 250.223, 250.252, and 250.254 each contain wording indicating that the required action in the case of marine mammals applies only “as appropriate” and “as may be necessary.” The language of the final rule does not pre-determine any activity will result in an incidental take. Take under the ESA and the MMPA is defined by statute and regulation.

Under the ESA, Federal action agencies must determine if a proposed action “may affect” listed species or designated critical habitat, using the best scientific and commercial data available. The biological assessment is a tool used to identify impacts to listed species or designated critical habitat so that a decision can be made as to whether a proposed action is likely to adversely affect listed species or designated critical habitat.

The MMPA places responsibilities on the entity conducting a specific activity (and who wishes an incidental take of a marine mammal to be allowed and not prohibited) to take the initiative in identifying actions that could result in a taking in order to avoid sanctions should a take occur. Under the implementing regulations (50 CFR 216.104), in order for the NMFS to consider authorizing take by U.S. citizens, or to make a finding that an incidental take is unlikely to occur, a written request must be submitted to the Assistant Administrator by the requester providing, “A detailed description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals,” “the types of incidental take authorization that is being requested,” and “by age, sex, and reproductive condition (if possible), the number of marine mammals (by species) that may be taken by each type of taking identified * * * and the number of times such takings by each type of taking are likely to occur.” No changes to the rule are necessary.

Comment: ExxonMobil suggested that rather than requiring lessees and operators to implement monitoring and mitigation measures “as appropriate,” the MMS and industry should work together to obtain the promulgation of the incidental take regulations and then determine what further actions, if any, need to be taken with respect to the MMS regulatory program in connection with the MMPA and the ESA.

Response: The MMS petitioned for regulations under the MMPA for both seismic survey activities conducted in the GOM and for decommissioning offshore structures in the GOM. Both the MMS and industry will have an opportunity to comment on both sets of the proposed MMPA regulations and the Environmental Impact Statement (EIS) the NMFS intends to prepare to support their rulemaking process for seismic survey activities. In the meantime, while the NMFS continues its regulatory process for those two specific activities in the GOM, the MMS still has a responsibility under the OCSLA to review and approve plans before activities may be conducted to ensure the proposed activities are environmentally sound and will be conducted in a manner consistent with applicable Federal laws and regulations. We also require this information in plans to assist the Regional Supervisor in complying with the NEPA, the ESA, and the MMPA as stated in §§ 250.227 and 250.261. No changes to the rule will be made.

Comment: ExxonMobil pointed out that the rule would require the lessees and operators to describe how mitigation would reduce the potential for takes under the ESA and the MMPA. This in turn would affect how the MMS and industry interact with other agencies because the lessee or operator will not know how to comply with the proposed rule without interacting with the ESA/MMPA regulatory agencies.

Response: With respect to the ESA, when the Services believe the Agency or the applicant may take actions to avoid incidental take of a listed species the opinion will contain a thorough explanation of how reasonable and prudent alternatives will minimize or avoid incidental takes. MMS has always communicated directly with the lessee/operators through various means regarding non-discretionary mitigation measures specified in an incidental take statement. We would continue this communication. In addition, industry may take the role of an applicant under the ESA and participate in the consultation process as they have done in the past. The MMS and other MMPA/ESA regulatory agencies have provided those opportunities in the past and would continue this process.

With respect to the MMPA, the implementing regulations are very clear. If an operator or lessee has reason to believe their activities may result in incidental take of marine mammals and they wish the Secretary to allow the incidental take, then the operator or lessee must request the authorization. The MMPA implementing regulations spell out the process necessary to receive an incidental take authorization. Nothing in the final rule changes that process or how industry would interact with other agencies. No changes to the final rule are necessary.

Comment: ExxonMobil commented that the proposed rule does not address the time required for interaction with other regulatory agencies. Additionally, if the proposed rule results in additional workload on another agency, it could delay industry exploring for and developing oil and natural gas supplies in waters of the U.S. while interaction occurs.

Response: The final rule does nothing to change the statutory and regulatory timeframes associated with the ESA and the MMPA processes for allowing or authorizing incidental take of protected species, which otherwise would be prohibited by the Acts. This final rule does not change the level of interaction with or workload for the FWS or the NMFS. The level of interaction and workload issues are defined by the quality of the interaction, the responsiveness to regulatory requirements of the ESA and the MMPA, and the potential for activities to adversely affect or to take protected species as defined by the ESA and the MMPA. This final rule is designed to facilitate environmentally sound operations on the OCS as mandated under the OCSLA. No changes to the final rule are necessary.

Comment: ExxonMobil suggested that the NTLs MMS has issued are a proper response to the MMPA and the ESA requirements pending NOAA's promulgation of incidental take regulations and that the MMS, along with industry, should focus its efforts on the development of incidental take regulations requested from the NOAA and clarifying the respective roles of the NOAA and the MMS with respect to offshore activities.

Response: MMS has decided to utilize regulations rather than NTLs to impose general requirements like these, in contrast to the NTLs previously issued that addressed a particular biological opinion. This rule addresses any activity that may incidentally take a protected species in any planning area of the OCS. Under the OCSLA, we must ensure that the proposed activities will comply with other applicable Federal laws and regulations as referenced above. Both the MMS and industry will have an opportunity to comment on the proposed MMPA regulations and the EIS that the NMFS intends to prepare to support their regulations for seismic survey activities in the GOM. Promulgating regulations defining the role of the NOAA under the MMPA is not within the authority of the Department of the Interior (DOI). No changes to the final rule are necessary.

The Office of Management and Budget (OMB) has determined that this is a significant rule for OMB review under Executive Order 12866.

(1) This final rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The final rule is necessary for us to implement nondiscretionary terms and conditions to be exempt from prohibition at section 9 of the ESA, of the taking of listed species. There are no new costs associated with this rulemaking and it will not cause an annual effect on the economy of $100 million or more.

(2) This final rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The MMS consulted with the FWS and the NOAA. These agencies agree that the final rule is consistent with their authorities and implementing regulations. The final rule does not affect how lessees or operators interact with other agencies. Nor does the final rule affect how the MMS will interact with other agencies.

(3) This final rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) The OMB has determined that this rule raises novel legal or policy issues. The rule specifies that lessees must provide information to MMS on how they will conduct their proposed activities in a manner consistent with provisions of ESA and MMPA to ensure compliance with the OCSLA.

The DOI certifies that this final rule does not have a significant economic effect on a substantial number of small entities as defined under the RFA (5 U.S.C. 601 et seq. ). No additional costs are associated with this final rule because it clarifies requirements that already exist. This final rule reduces the ambiguity in our regulations. Accordingly, a Small Entity Compliance Guide is not required.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of the MMS, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI.

This final rule is not a major rule under the SBREFA, (5 U.S.C. 804(2)). This final rule:

a. Will not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions because the final rule incorporates monitoring, mitigation and reporting requirements specified in current NTLs and lease stipulations.

c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or ability of U.S.-based enterprises to compete with foreign-based enterprises. All lessees and operators, regardless of nationality, must comply with the requirements of this final rule. The final rule will not affect competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This final rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The final rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required. There are no mandates for State, local, or tribal governments.

The final rule is not a governmental action capable of interference with constitutionally protected property rights. Thus, MMS did not need to prepare a Takings Implication Assessment according to E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

With respect to E.O. 13132, this final rule would not have federalism implications. This final rule would not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role.

With respect to E.O. 12988 the Office of the Solicitor has determined that this final rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order.

The revisions to 30 CFR part 250, subpart B, refer to, but do not change the IC requirements in current regulations. The final rule contains no new reporting or recordkeeping requirements, and therefore, an IC request has not been submitted to the OMB under the PRA. The MMS received two comments that related to the PRA. One was a comment from the Center for Regulatory Effectiveness that felt the MMS was not complying with the PRA. They asserted that this rule contained new IC requirements that were not reviewed and approved by OMB under 1010-0151. There are no new IC requirements in this rule. All requirements are covered under OMB Control Numbers 1010-0151 (exp. 7/31/08, 320,815 hours) and 1010-0154 (exp. 12/31/06, 22,305 hours). The second comment was from ConocoPhillips Alaska Inc., and they disagreed that the rule would result in “no additional costs.” The MMS disagrees that this rule results in additional costs. The rule contains new language but does not contain new requirements or new costs. Current subpart B requires lessees to provide the appropriate biological information with their plans. The rulemaking adds no new IC beyond what is already required under the ESA or the MMPA. By putting these provisions in 30 CFR 250 regulations, it clarifies what information is needed to ensure compliance with subpart B, the ESA, and the MMPA. The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information and assigns a control number, you are not required to respond. The OMB approved the referenced IC requirements under the OMB control number 1010-0151, expiration 7/31/08.

The MMS has determined that this final rule qualifies for a categorical exclusion under 516 Department Manual (DM) Chapter 2, Appendix 1.10. The rule is procedural in nature, it clarifies existing requirements concerning the contents of Exploration Plans, Development and Production Plans, and Development Operation Coordination Documents. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of the NEPA, pursuant to 516 DM, Chapter 2, Appendix 1. In addition, the final rule does not involve any of the 10 extraordinary circumstances listed in 516 DM, Chapter 2, Appendix 2. Pursuant to Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the DOI, the term “categorical exclusions” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13211 requires the agency to prepare a Statement of Energy Effects when it takes a regulatory action that is identified as a significant energy action. This final rule is not a significant energy action, and therefore would not require a Statement of Energy Effects because it:

a. Is not a significant regulatory action under E.O. 12866,

b. Is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and

c. Has not been designated by the Administrator of the Office of Information and Regulatory Affairs, OMB, as a significant energy action.

Under the criteria in E.O. 13175, we have evaluated this final rule and determined that it has no potential effects on federally recognized Indian tribes. There are no Indian or tribal lands on the OCS.

Regulatory Information

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. The information for the installation was not given with sufficient time to publish an NPRM. Publishing an NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to minimize potential danger to the workers and mariners transiting the area. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners and will place Coast Guard or local law enforcement vessels in the vicinity of this zone to advise mariners of the restriction.

Johnson Brothers will be installing the tip sections of the east and west leafs on the Treasure Island Causeway Bridge. In order to install the tip sections, a crane barge will need to be placed in the center of the channel to hoist the tip sections and hold them in place while they are fasted to the bridge leafs. The nature of the installation and environment surrounding the Treasure Island Causeway Bridge presents a danger to the workers and mariners transiting the area. The installation will be conducted between 8 a.m. and 6 p.m. on March 21 and April 18, 2007.

The safety zone encompasses the following waters of the Intracoastal Waterway, Florida: all waters from surface to bottom, within a 200 foot radius of the following coordinates: 27°46′15″ N, 82°45′12″ W. Vessels are prohibited from anchoring, mooring, or transiting within this zone, unless authorized by the Captain of the Port Sector St. Petersburg or his designated representative. The zone will be enforced from 8 a.m. until 6 p.m. on March 21, and April 18, 2007.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The rule will only be enforced for a limited time in a location where marine traffic is minimal. Moreover, vessels may still enter the safety zone with the express permission of the Captain of the Port Sector St. Petersburg or his designated representative.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit within a 200 foot radius from the Treasure Island Causeway Bascule Bridge on March 21 and April 18, 2007. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be enforced for a limited time in a location where marine traffic is minimal. Additionally, traffic will be allowed to enter the zone with the permission of the Captain of the Port Sector St. Petersburg or his designated representative.

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 entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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 reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Pursuant to 50 CFR 622.42(a)(1)(iv), the commercial quota for tilefishes in the Gulf of Mexico is 440,000 lb (199,581 kg) for the current fishing year, January 1 through December 31, 2007.

Under 50 CFR 622.43(a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect in the Federal Register . Based on current statistics, NMFS has determined that the available commercial quota of 440,000 lb (199,581 kg) for tilefishes will be reached on or before April 18, 2007. Accordingly, NMFS is closing the commercial fishery for tilefishes in the Gulf of Mexico EEZ from 12:01 a.m., local time, on April 18, 2007, until 12:01 a.m., local time, on January 1, 2008. The operator of a vessel with a valid commercial vessel permit for Gulf reef fish having tilefishes aboard must have landed and bartered, traded, or sold such tilefishes prior to 12:01 a.m., local time, April 18, 2007.

During the closure, the bag and possession limits specified in 50 CFR 622.39(b) apply to all harvest or possession of tilefishes in or from the Gulf of Mexico EEZ, and the sale or purchase of tilefishes taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to sale or purchase of tilefishes that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, April 18, 2007, and were held in cold storage by a dealer or processor.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to close the fishery constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(3)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule implementing the quota already has been subject to notice and comment, and all that remains is to notify the public of the closure. Similarly, there is a need to implement these measures in a timely fashion to prevent an overrun of the commercial quota of Gulf of Mexico tilefishes, given the capacity of the fishing fleet to harvest the quota quickly. Any delay in implementing this action would be impractical and contrary to the Magnuson-Stevens Act, the FMP, and the public interest. For these same reasons, NMFS finds good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived.

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The 2007 specification of DAH for Loligo squid was set at 16,872.4 mt (72 FR 4211, January 30, 2007). This amount is allocated by trimester, as shown below.

Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 90 percent of the trimester allocation is harvested in Trimester I, II, and when 95 percent of the total annual DAH has been harvested in Trimester III. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hr before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the Federal Register . The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 90 percent of the DAH for Loligo squid in Trimester I will be harvested. Therefore, effective 0001 hours, April 13, 2007, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1,134 kg) of Loligo during a calendar day. The directed fishery will reopen effective 0001 hours, May 1, 2007, when the Trimester II quota becomes available.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

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

The second seasonal allowance of the 2007 halibut bycatch allowance specified for the trawl rock sole, flathead sole, and “other flatfish” fishery category in the BSAI is 164 metric tons as established by the 2007 and 2008 final harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007).

In accordance with § 679.21(e)(7)(v), the Administrator, Alaska Region, NMFS, has determined that the second seasonal allowance of the 2007 halibut bycatch allowance specified for the trawl rock sole, flathead sole, and “other flatfish” fishery category in the BSAI has been reached. Consequently, NMFS is closing directed fishing for rock sole, flathead sole, and “other flatfish” by vessels using trawl gear in the BSAI.

“Other flatfish” includes Alaska plaice, as well as all other flatfish species except for Pacific halibut (a prohibited species), Greenland turbot, rock sole, yellowfin sole, flathead sole, and arrowtooth flounder.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for rock sole, flathead sole, and “other flatfish” by vessels using trawl gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 6, 2007.

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

This action is required by § 679.21 and is exempt from review under Executive Order 12866.

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

The 2007 B season allowance of the Pacific cod TAC specified for vessels using jig gear in the BSAI is 632 metric tons (mt) as established by the 2007 and 2008 final harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007) and the adjustment of the Pacific cod TACs in the BSAI on March 5, 2007 (72 FR 10428, March 8, 2007), for the period 1200 hrs, A.l.t., April 30, 2007, through 1200 hrs, A.l.t., August 31, 2007. See § 679.20(c)(3)(iii), § 679.20(c)(5), and § 679.20(a)(7)(i)(A).

The Administrator, Alaska Region, NMFS, has determined that jig vessels will not be able to harvest 532 mt of the B season apportionment of Pacific cod allocated to those vessels under § 679.20(a)(7)(i)(A) and § 679.20(a)(7)(iii)(A)( 3 ). Therefore, in accordance with § 679.20(a)(7)(ii)(C)( 1 ), NMFS apportions 532 mt of Pacific cod from the B season jig gear apportionment to catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear.

The harvest specifications for Pacific cod included in the harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007) are revised as follows: 100 mt to the B season apportionment for vessels using jig gear and 2,853 mt to catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified for jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 5, 2007.

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

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