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

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

In an interim rule effective and published in the Federal Register on May 18, 2007 (72 FR 27949-27951, Docket No. APHIS-2007-0051), we quarantined a portion of Webb County, TX, and restricted the interstate movement of regulated articles from the quarantined area.

Based on trapping surveys conducted by inspectors of Texas State and county agencies and by inspectors of the Animal and Plant Health Inspection Service, we have determined that the Mexican fruit fly has been eradicated from the quarantined portion of Webb County. The last finding of Mexican fruit fly in this quarantined area was March 6, 2007.

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

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

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

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

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

The Regulatory Flexibility Act requires that agencies consider the economic impact of their rules on small entities. The Small Business Administration (SBA) has established size standards for determining which economic entities meet the definition of a small firm. The SBA classifies entities that would normally be affected by a quarantine for the Mexican fruit fly, growers of oranges (NAICS category 111310), citrus (except orange) groves (NAICS category 111320), apple orchards (NAICS category 111331), and other non-citrus farming (NAICS category 111339), as small businesses if their annual receipts are $750,000 or less. Any infestation by Mexican fruit fly could result in an increase in producer costs for pesticides and their application and a reduction in production and revenue. However, according to the 2002 Census of Agriculture, there were no commercial farms growing these commodities in Webb County, TX.

County records indicate there are approximately 1 airport, 4 bus terminals, 2 cargo freight forwarders, 2 distributors, 1 food bank, 2 nurseries, and 128 fruit sellers within the area that may be affected by this rule.

We expect that any small entities located within the area that sell regulated articles do so primarily for local intrastate, not interstate, movement, so the effect, if any, of this rule on these entities appears to be minimal. The effect on any small entities that may move regulated articles interstate has been minimized by the availability of various treatments that, in most cases, allow these small entities to move regulated articles interstate with very little additional cost. Thus, just as the previous interim rule establishing the quarantined area in Webb County, TX, had little effect on the small entities in the area, the lifting of the quarantine in the current interim rule will also have little effect.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

Regulation CC establishes the maximum period a depositary bank may wait between receiving a deposit and making the deposited funds available for withdrawal. 1 A depositary bank generally must provide faster availability for funds deposited by a local check than by a nonlocal check. A check drawn on a bank is considered local if it is payable by or at a bank located in the same Federal Reserve check processing region as the depositary bank. A check drawn on a nonbank is considered local if it is payable through a bank located in the same Federal Reserve check processing region as the depositary bank. Checks that do not meet the requirements for local checks are considered nonlocal.

Appendix A to Regulation CC contains a routing number guide that assists banks in identifying local and nonlocal banks and thereby determining the maximum permissible hold periods for most deposited checks. The appendix includes a list of each Federal Reserve check processing office and the first four digits of the routing number, known as the Federal Reserve routing symbol, of each bank that is served by that office for check processing purposes. Banks whose Federal Reserve routing symbols are grouped under the same office are in the same check processing region and thus are local to one another.

As explained in the Board's final rule published in the Federal Register on May 18, 2007, the Federal Reserve Banks have decided to restructure their check processing services by reducing further the number of locations at which they process checks. 2 The Board issues separate final rules amending appendix A for each phase of the restructuring, and the amendments set forth in this notice are such final rules. 3

As part of the restructuring process, the head office of the Federal Reserve Bank of San Francisco will cease processing checks on August 18, 2007. As of that date, banks with routing symbols currently assigned to the San Francisco head office for check processing purposes will be reassigned to the San Francisco Reserve Bank's Los Angeles branch office. As a result of this change, some checks that are drawn on and deposited at banks located in the affected check processing regions and that currently are nonlocal checks will become local checks subject to faster availability schedules.

To assist banks in identifying local and nonlocal banks, the Board accordingly is amending the lists of routing symbols assigned to Twelfth District check processing offices to conform to the transfer of operations from the San Francisco head office to the Los Angeles branch office. To coincide with the effective date of the underlying check processing changes, the amendments are effective August 18, 2007. The Board is providing advance notice of these amendments to give affected banks ample time to make any needed processing changes. The advance notice also will enable affected banks to amend their availability schedules and related disclosures, if necessary, and provide their customers with notice of these changes. 4 The Federal Reserve routing symbols assigned to all other Federal Reserve branches and offices will remain the same at this time. The Board of Governors, however, intends to issue a similar notice at least sixty days prior to the elimination of check processing operations at the Helena branch office of the Federal Reserve Bank of Minneapolis, as described in the May 2007 Federal Register document.

The Board has not followed the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of this final rule. The revisions to the appendix are technical in nature, and the routing symbol revisions are required by the statutory and regulatory definitions of “check-processing region.” Because there is no substantive change on which to seek public input, the Board has determined that the section 553(b) notice and comment procedures are unnecessary.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board has reviewed the final rule under authority delegated to the Board by the Office of Management and Budget. This technical amendment to appendix A of Regulation CC will delete the reference to the head office of the Federal Reserve Bank of San Francisco and reassign the routing symbols listed under that office to the Los Angeles branch office of the Federal Reserve Bank of San Francisco. The depository institutions that are located in the affected check processing regions and that include the routing numbers in their disclosure statements would be required to notify customers of the resulting change in availability under § 229.18(e). However, because all paperwork collection procedures associated with Regulation CC already are in place, the Board anticipates that no additional burden will be imposed as a result of this rulemaking.

SBA can guarantee bonds for contracts up to $2 million, covering bid, performance and payment bonds for small and emerging contractors who cannot obtain surety bonds through regular commercial channels. SBA's guarantee gives sureties an incentive to provide bonding for small businesses and thereby strengthens their ability to obtain bonding and greater access to contracting opportunities.

Section 411(g)(3) of the Small Business Investment Act of 1958 (the Act) formerly required PSB Sureties to be audited every year. 15 U.S.C. 694b(g)(3). As amended by Public Law 108-447, Div. K. Section 203, the Small Business Reauthorization and Manufacturing Assistance Act of 2004, the Act now requires audits to be made at least once every 3 years. This final rule implements this statutory requirement.

In relevant part, Section 4(b)(1) of the Small Business Act provides that SBA “shall give special consideration to veterans of the Armed Forces of the United States and their survivors and dependents.” 15 U.S.C. 633(b)(1). This final rule encourages the issuance of bonds on behalf of small business concerns owned and controlled by veterans and Service-disabled veterans, by guaranteeing to pay 90 percent of a Prior Approval Program Surety's loss. This guaranty affords such concerns more opportunity to obtain contracts generally.

Section 411(h) of the Small Business Investment Act mandates the operation of the program “on a prudent and economically justifiable basis” and authorizes SBA to impose fees on both small business concerns and sureties, “to be payable at such time as may be determined by [SBA].” Accordingly, this final rule establishes a clear deadline for a Prior Approval Surety's payment of the guarantee fees owed to SBA in order to maintain SBA's guarantee.

The final rule also allows PSB Program Sureties to charge no more than the premium rates permitted under applicable State law, as Prior Approval Sureties are already allowed. The initial regulations for the PSB program specified that the premium rates charged by PSB Sureties could not exceed the Surety Association of America's advisory premium rates in effect on August 1, 1987. SAA discontinued its rate setting function shortly after promulgating the 1987 rates, and participating surety companies have been obligated to use the 1987 SAA rates for the past 18 years despite economic and market place changes. This change puts the Preferred and Prior Approval Programs on the same footing by relying on the individual State oversight bodies for setting fee rates.

From its creation in 1988 until 2004, the PSB program was a pilot program, subject to automatic termination in the absence of affirmative Congressional action. Now that the PSB program has been made permanent, the present regulation that speaks of the termination of the program has been removed.

Finally, pursuant to this rule Affiliates of PSB Sureties are no longer barred from participation in the Prior Approval program. The term “Affiliate” is defined in 13 CFR part 121, but in the context of the present discussion it means a relationship in which one Surety owns or otherwise controls another Surety, or in which two or more Sureties are commonly owned by, or under common control with, a third party. A series of mergers and acquisitions in the surety industry in recent years had caused Sureties previously eligible to participate in the Prior Approval Program to become Affiliates of PSB Sureties and lose their eligibility. This final amendment should encourage increased participation in the Prior Approval Program by otherwise qualified Sureties that are Affiliates of PSB Sureties.

SBA received five public comments on the proposed rule, three from associations and two from individual surety companies. Each commenter supported the proposed changes, with two exceptions.

Four commenters recommended removal of the proposed language in § 115.19, Denial of Liability, that would allow SBA to deny bond liability as a result of the failure of a surety company to pay the required surety fee. In general, the commenters stated that such a requirement would weaken the SBA/Surety Industry partnership that is designed to assist small businesses. While SBA values its partners in the surety industry, the Agency has a fiduciary responsibility to ensure timely payment of guaranty fees in order to honor its guaranty. Accordingly, the language in the proposed rule regarding the denial of bond liability if the surety fee is not paid within 60 days is retained. The proposed rule also included a provision that the guaranty can be reinstated if a valid reason for the delinquent payment of guaranty fee is provided and the contract is not in default. This language is also retained in the final rule.

Three commenters expressed concern with the proposed 45 days fee payment requirement. One commenter requested clarification of when the 45-day period begins. A few commenters said it would be difficult to remit payment within 45 days, in part because many sureties do not receive payment on the final bond premium until 45 days after the bond is issued, and to require payment before collection on the premium is unduly punitive. In consideration of these comments, in this final rule, SBA has amended the proposed rule. First, the proposed 45-day period cited in § 115.32 is increased to 60 days. SBA believes that the additional 15 days will provide time for a surety company agent to provide the surety company with sufficient information for the surety company to make payment. Second, the same section is also revised to specify that payment is required within 60 days following SBA approval of the Prior Approval Payment or Performance Bond on the SBA Form 990, Guarantee Agreement.

One commenter also suggested that the agency should extend the 10-day deadline for PSB sureties to submit the executed bond to SBA to a 15-day deadline. SBA did not propose to amend this particular requirement, and it will be considered among other changes in a future amendment.

The Office of Management and Budget (OMB) has determined that this rule constitutes a significant regulatory action for purposes of Executive Order 12866, thereby necessitating a regulatory impact analysis. SBA published this analysis in the Proposed Rule. The agency did not receive any comments addressing the analysis and is not aware of any additional information that would require revision of its initial conclusions.

This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

For purpose of E.O. 13132, the SBA has determined that the rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purpose of Executive Order 13132, SBA determines that this final rule has no federalism implications warranting preparation of a federalism assessment.

SBA has determined that this final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Within the meaning of RFA, SBA certifies that this rule will not have a significant economic impact on a substantial number of small entities. Consequently, this rule doe not meet the substantial number of small businesses criterion anticipated by the Regulatory Flexibility Act.

There are about a dozen Sureties that participate in the SBA program, and this rule does not impose any additional cost or any significant burden on them. Allowing PSB Sureties to charge the highest premium rates permitted by applicable State law raises the possibility of an economic impact on those contractors that now receive their bonding from PSB Sureties, but out of 843 contractors participating in the SBA program in FY2005, about 143 were bonded by PSB Sureties. Prior Approval Sureties are already allowed to charge the premium rates permitted by the individual State law, so the economic effect, if any, of this final rule would be to subject approximately 17 percent of the contractors in the SBA program to the risk that they might have to pay the same premium rates that their fellow participating contractors must pay. No public comments were received in response to the RFA analysis provided in the proposed rule.

Paperwork Reduction Act

These regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collections of information contained in these regulations has been reviewed, and pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-1667. Responses to these collections of information are mandatory.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

For further information concerning these collections of information, where to submit comments on the collections of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register .

Books and records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

Sections 883(a)(1) and (a)(2) of the Code generally provide that income from the international operation of ships or aircraft derived by a foreign corporation will be excluded from gross income and exempt from U.S. taxation if the foreign country in which the corporation is organized grants an equivalent exemption to corporations organized in the United States. Section 883(c)(1) provides that a foreign corporation cannot qualify for the section 883(a) exemption if 50 percent or more of the value of its stock is owned by individuals who are not residents of a country that grants an equivalent exemption to U.S. corporations. However, under section 883(c)(2), section 883(c)(1) does not apply to a foreign corporation that is a controlled foreign corporation as defined in section 957(a)(CFC). In addition, under section 883(c)(3), section 883(c)(1) does not apply to a foreign corporation whose stock is primarily and regularly traded on an established securities market in the United States or in a foreign country that grants an equivalent exemption to U.S. corporations.

On August 26, 2003, the IRS and the Treasury Department issued final regulations under section 883 in TD 9087 (68 FR 51394). The final regulations provide, in general, that a foreign corporation organized in a qualified foreign country and engaged in the international operation of ships or aircraft may exclude qualified income from gross income for purposes of U.S. Federal income taxation provided that the corporation can satisfy certain ownership and related substantiation and reporting requirements. A foreign corporation that meets these requirements is a “qualified foreign corporation.” A foreign country that grants U.S. corporations an equivalent exemption from gross income is a “qualified foreign country.” The final regulations also provide definitions of the terms “qualified income” and “equivalent exemption.” In addition, the final regulations specify how a foreign corporation can satisfy the ownership and related substantiation and reporting requirements, and the information that the foreign corporation must include on its U.S. income tax return in order to claim an exemption.

In general, a foreign corporation must own or lease an entire ship or aircraft, and the ship or aircraft must carry cargo or passengers for hire, in order for the foreign corporation to be engaged in the operation of a ship or aircraft for this purpose. Section 1.883-1(e). Section 1.883-1(f) provides rules for determining whether income is derived from the international operation of a ship or aircraft. Section 1.883-1(g)(1) provides rules for determining whether certain activities of a foreign corporation that is engaged in the international operation of ships or aircraft are so closely related to that operation as to be considered incidental to the international operation of ships or aircraft. The final regulations provide a nonexclusive list of activities that are considered incidental to the international operation of ships or aircraft. Income from these incidental activities is deemed to be income derived from the international operation of a ship or aircraft for purposes of the exclusion under section 883. Section 1.883-1(g)(2) also provides a nonexclusive list of activities that are not incidental to the international operation of ships or aircraft. The final regulations reserve on whether services, including ground services, maintenance, catering, and other services, are considered incidental to the international operation of ships or aircraft.

Section 1.883-1(h) provides that an equivalent exemption may exist if a foreign country generally imposes no tax on income or specifically provides a domestic tax law exemption for income derived from the international operation of ships or aircraft. Alternatively, a foreign country may exchange a diplomatic note, or enter into an agreement, with the United States that provides for a reciprocal exemption for purposes of section 883. Section 1.883-1(h)(3)(i) generally provides that a foreign country that grants an exemption from taxation for income from the international operation of ships or aircraft solely through an income tax convention with the United States is not considered to grant an equivalent exemption. Thus, a corporation organized in such a country may not claim an exclusion under section 883, and can only claim available treaty benefits to exempt income derived from international transport.

The final regulations require that a foreign corporation must satisfy one of three stock ownership tests to satisfy the ownership requirements of section 883(c): A publicly-traded test in § 1.883-2(a), a CFC stock ownership test in § 1.883-3(a), or a qualified shareholder stock ownership test in § 1.883-4(a). Under § 1.883-3(a), a foreign corporation satisfies the CFC stock ownership test if it meets an “income inclusion test” and satisfies certain substantiation and reporting requirements under § 1.883-3(c) and (d). The income inclusion test requires that more than 50 percent of the CFC's adjusted net foreign base company income (as defined in § 1.954-1(d) and as increased or decreased by section 952(c)) derived from the international operation of ships or aircraft be includible in the gross income of one or more U.S. citizens, individual residents of the United States, or domestic corporations. Section 1.883-3(b). This rule prevents individuals residing in foreign countries that do not grant an equivalent exemption to U.S. corporations from benefiting from the section 883 exemption by owning a CFC through a domestic partnership, estate or trust.

Section 1.883-4 of the final regulations provides rules for when a foreign corporation satisfies the qualified shareholder stock ownership test. To satisfy this test, qualified shareholders must own (applying the attribution rules of § 1.883-4(c)) more than 50 percent of the value of a foreign corporation's outstanding shares for half the number of days in the corporation's taxable year. The foreign corporation must also meet the substantiation and reporting requirements of § 1.883-4(d) and (e). Under the reporting requirements of § 1.883-4(e), a foreign corporation must attach a statement with certain information to its Form 1120-F, “U.S. Income Tax Return of a Foreign Corporation,” including the names and addresses of individual shareholders with large shareholdings (at least 5 percent) in the foreign corporation.

Section 415 of the American Jobs Creation Act of 2004 (Pub. L. 108-357 (118 Stat. 1418) (AJCA) repealed section 954(a)(4) and (f), eliminating foreign base company shipping income as a type of foreign base company income, and therefore, as subpart F income. The repeal is effective for taxable years of foreign corporations beginning after December 31, 2004, and for taxable years of United States shareholders with or within which such taxable years of foreign corporations end. Section 423 of AJCA also delayed the applicability date of the final regulations under section 883(a) and (c) for one year, until taxable years beginning after September 24, 2004.

Commentators noted that the repeal of the foreign base company shipping provisions created uncertainty about the application of the income inclusion test for CFCs that no longer have foreign base company income.

On August 5, 2005, the IRS and the Treasury Department issued TD 9218 (70 FR 45529) to conform the applicability date of the final regulations in light of section 423 of AJCA. The preamble to TD 9218 also acknowledged commentators' concerns regarding the application of the income inclusion test after the repeal of the foreign base company shipping provisions. The preamble stated that a CFC that satisfied the income inclusion test prior to the effective date of section 415 of AJCA would continue to satisfy that test after the effective date of the legislation, provided the CFC is able to demonstrate that if the foreign base company shipping provisions had not been repealed, more than 50 percent of the its current earnings and profits derived from the international operation of ships or aircraft would have been attributable to amounts includible in the gross income of one or more U.S. citizens, individual residents of the United States, or domestic corporations (pursuant to section 951(a)(1)(A) or another provision of the Code) for the taxable years of such persons in which the taxable year of the CFC ends.

The preamble to TD 9218 also stated that the IRS and the Treasury Department would issue regulations to clarify the application of the income inclusion test, and invited further comments on the most appropriate way to accomplish a clarification consistent with the principles of the existing section 883 regulations, and the repeal of the foreign base company shipping provisions.

The IRS and the Treasury Department received a number of comments in response to the preamble language in TD 9218 dealing with the income inclusion test. Generally, commentators stated that to require CFCs to calculate hypothetical amounts of subpart F income as though the foreign base company shipping provisions had not been repealed was too complex an approach to administer properly. Commentators proposed several alternative approaches they viewed as simpler to the approach described in TD 9218.

After considering these comments, the IRS and the Treasury Department issued Notice 2006-43, “Interim Guidance With Respect to the Application of Treas. Reg. § 1.883-3,” (2006-21 IRB 921 (May 22, 2006)), which announced a new approach. Under the Notice, a CFC would satisfy the stock ownership test of § 1.883-1(c)(2) if it met a “qualified U.S. person ownership test” and satisfied revised substantiation and reporting requirements. To satisfy the qualified U.S. person ownership test, a corporation would be required to be a CFC for more than half the days of its taxable year, and more than 50 percent of the total value of the CFC's outstanding stock would have to be owned (within the meaning of section 958(a) as modified by the Notice) by one or more qualified U.S. persons for more than half the days of its taxable year. See § 601.601(d)(2).

These temporary regulations incorporate the rules of Notice 2006-43, with certain amendments, and respond to comments that have been received concerning other portions of the existing section 883 regulations.

The following additional comments were received regarding the final regulations.

The final regulations reserved on whether the performance of a variety of ground services should be treated as activities that are incidental to the international operation of ships or aircraft. Section 1.883-1(g)(3). The IRS and the Treasury Department have received a number of comments from the air transport industry requesting guidance under section 883 on the treatment of ground services, including cargo handling, maintenance services, catering, and customer service. Commentators have pointed to recent changes in the Commentaries to Article 8 (Shipping, Inland Waterways Transport and Air Transport) of the Model Tax Convention on Income and on Capital published by the Organisation for Economic Co-operation and Development (the OECD Model Convention) that clarify the circumstances under which certain services performed by an enterprise engaged in the operation of ships or aircraft in international traffic may be either ancillary or directly related to such operations, and thereby covered services for purposes of Article 8 of the OECD Model Convention.

Commentators have also suggested that countries that provide an exemption to U.S. corporations only through an income tax convention with the United States should be treated as granting an equivalent exemption for purposes of section 883. In support of their position, commentators cite the Senate Committee Report to the Tax Reform Act of 1986 (Pub. L. 99-514 (100 Stat. 2085)), which states:

Prior to 2001, a foreign country that provided an exemption from taxation for income from the international operation of ships or aircraft through an income tax convention was treated as granting an equivalent exemption for purposes of section 883. See Rev. Rul. 89-42 (1989-1 CB 234); Rev. Rul. 97-31 (1997-2 CB 77) (supplementing Rev. Rul. 89-42). In 2001, however, the IRS and the Treasury Department reconsidered this position, and concluded that an exemption under an income tax convention could not constitute an equivalent exemption for purposes of section 883(a) because the Code and income tax conventions have different eligibility requirements, and provide exemptions that vary in scope. See Rev. Rul. 2001-48 (2001-2 CB 324) (modifying and superseding Rev. Rul. 97-31). The position taken in Rev. Rul. 2001-48 was incorporated into § 1.883-1(h)(3)(i) of the final regulations. See § 601.601(d)(2).

In connection with the substantiation and reporting requirements for the qualified shareholder stock ownership test under § 1.883-4(a), the IRS and the Treasury Department have continued to receive comments expressing concern over the requirement that the names and addresses of individual shareholders with large shareholdings (at least 5 percent) in corporations relying on this ownership test be disclosed on Form 1120-F. Recent comments have suggested that in lieu of providing such names and addresses, taxpayers should be permitted to submit a sworn statement by a U.S. tax practitioner subject to Circular 230 with their return that states that the taxpayer satisfies the qualified shareholder stock ownership test, and that the names and addresses of shareholders with large shareholdings are available for inspection by the IRS at the office of that such practitioner.

These temporary regulations incorporate the rules of Notice 2006-43 and also address a number of comments that have been received concerning other portions of the existing section 883 regulations.

These temporary regulations generally adopt the qualified U.S. person ownership test contained in Notice 2006-43. A CFC meets the qualified U.S. person ownership test in § 1.883-3T(b)(1) only if more than 50 percent of the total value of all the outstanding stock of the CFC is owned (within the meaning of section 958(a), as modified in § 1.883-3T(b)(4)), by one or more qualified U.S. persons. The term qualified U.S. person means a U.S. citizen, resident alien, domestic corporation, or domestic trust described in section 501(a). For purposes of applying the qualified U.S. person ownership test, the value of the stock of the CFC that is owned (directly or indirectly) through bearer shares is not taken into account in the numerator, but is taken into account in the denominator to determine the portion of the overall stock value that is owned by qualified U.S. persons. Section 1.883-3T(b)(3).

For purposes of applying the qualified U.S. person ownership test, the attribution rules of section 958(a) will apply to determine the ownership interests of qualified U.S. persons held through foreign entities. In addition, the temporary regulations extend the attribution rules of section 958(a) to domestic partnerships, domestic trusts not described in section 501(a), and domestic estates. In the case of these domestic entities, stock will be treated as owned proportionately by the partners, beneficiaries, grantors, or other interest holders in such entities, respectively, applying the rules of section 958(a) as if the domestic partnership, estate, or trust were a foreign partnership, estate, or trust, respectively. The regulations also contain conforming changes to the substantiation and reporting provisions in this section to reflect the new qualified U.S. person ownership test for CFCs. A CFC that fails this test will not be a qualified foreign corporation unless it meets either the publicly-traded test of § 1.883-2(a) or the qualified shareholder stock ownership test of § 1.883-4(a).

The IRS and the Treasury Department recognize that guidance is needed on the extent to which ground services that are conducted by foreign corporations engaged in the international operation of ships or aircraft are so closely related to such operation that they are considered activities incidental to the international operation of ships or aircraft. Section 1.883-1T(g)(1)(xi) treats the provision of goods and services by engineers, ground and equipment maintenance staff, cargo handlers, catering staff, and customer services personnel, and the provision of facilities such as passenger lounges, counter space, ground handling equipment, and hanger facilities as activities incidental to the international operation of a ship or aircraft. The regulations also make clear that such services will be treated as incidental, whether provided to another enterprise as part of a pooling arrangement, alliance, or other joint venture.

In response to comments and further study, the IRS and the Treasury Department believe that it is appropriate to provide additional guidance on when a country that only provides for an exemption by means of an income tax convention with the United States will be considered as granting an equivalent exemption for purposes of section 883(a). Section 1.883-1(h)(1), which sets forth the various bases on which equivalent exemptions may be claimed, is broadened by § 1.883-1T(h)(1)(ii) to include a domestic tax law exemption by income tax convention. Section 1.883-1T(h)(3) sets out the conditions under which an exemption under an income tax convention may constitute an equivalent exemption.

If a foreign country provides an exemption from tax under a shipping and air transport or gains article of an income tax convention with the United States, and it does not otherwise provide an equivalent exemption through a diplomatic note, domestic statutory law, or by generally not imposing income tax on foreign corporations engaged in the international operation of ships or aircraft, a corporation organized in that country may treat that income tax convention as providing an equivalent exemption for purposes of section 883, but only if the foreign corporation meets all the conditions for claiming benefits with respect to such income under the income tax convention, and the category of income for which the convention grants benefits is also described in § 1.883-1(h)(2).

For example, if a foreign corporation is seeking an exemption with respect to non-incidental container-related income, it may not treat an exemption provided by an income tax convention for that type of income as an equivalent exemption, because that category of income is not listed in § 1.883-1(h)(2). Equivalent exemptions are determined separately with respect to each category of income listed in § 1.883-1(h)(2). As a result, the foreign corporation may treat an exemption under an income tax convention with respect to another category of income that is listed in § 1.883-1(h)(2) (for example, incidental bareboat charter income) as an equivalent exemption for purposes of section 883.

A foreign corporation that is entitled to treat an income tax convention as providing an equivalent exemption with respect to a particular category of income under § 1.883-1T(h)(1)(ii) will not always qualify for an exclusion from gross income under section 883. For example, a corporation that is a resident of a foreign country for purposes of an income tax convention because that is where it is managed and controlled is not a qualified foreign corporation under § 1.883-1(c)(1), and may not claim an exclusion from gross income under section 883, if it is not also organized in that country. Similarly, a foreign corporation that does not meet one of the stock ownership tests described in § 1.883-1(c)(2) is not a qualified foreign corporation under § 1.883-1(c)(1), and may not claim an exclusion from gross income under section 883, even though it would satisfy the limitation on benefits article under the relevant convention.

As provided in the final regulations, a foreign corporation that qualifies for an exemption from tax under an income tax convention and an equivalent exemption under section 883 through a diplomatic note, domestic statutory law, or by generally imposing no income tax on foreign corporations engaged in the international operation of ships or aircraft will continue to have the choice of whether to claim an exemption under the income tax convention or under section 883. Section 1.883-1T(h)(3)(ii)(A). If a foreign corporation chooses to claim an exemption under an income tax convention, it may also choose to claim an exemption under section 883 for any category of income listed in § 1.883-1(h)(2), to the extent that such income is also exempt under an income tax convention. Section 1.883-1T(h)(3)(ii)(B).

The rules provided in § 1.883-1(h)(3)(iii) of the final regulations for certain joint ventures also continue in modified form. A foreign corporation resident in a country that only provides an exemption through an income tax convention with the United States, and that participates in a joint venture entity that is fiscally transparent for U.S. tax purposes but not under the law of the treaty jurisdiction, will not be able to take advantage of the new rules on equivalent exemptions under income tax conventions, and must rely on § 1.883-1T(h)(3)(iii).

Upon further study and review, the IRS and the Treasury Department have decided to bring the disclosure required under each of the stock ownership tests provided in § 1.883-1(c)(2) into greater accord with the disclosure required for comparable stock ownership tests with similar tax policy objectives. For example, reporting in conjunction with the stock ownership tests found in the branch profits tax regulations and limitation on benefits articles in U.S. income tax conventions does not require the disclosure of certain shareholder names and addresses to the IRS. See § 1.884-5 and Form 8833, “Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b).” Consequently, these regulations have eliminated the requirement that the names and addresses of shareholders in corporations relying on the various stock ownership tests in § 1.883-1(c)(1) (that is, under the closely held exception to the publicly-traded test, the CFC stock ownership test, and the qualified shareholder stock ownership test) be disclosed on Form 1120-F. See §§ 1.883-2T(e), 1.883-3T(c), and 1.883-4T(d).

Foreign corporations will continue to have to report on Form 1120-F certain summary information regarding the shareholdings that are relied upon to satisfy the applicable stock ownership test (for example, aggregate percentage of interests held by shareholders by country of residence). Under new § 1.883-1T(c)(3)(i)(G), they also will have to report whether any shareholder whose stock holdings are relied upon to meet an ownership test holds such stock either directly or indirectly through bearer shares. In addition, each qualified shareholder and intermediary (if any) must declare under penalties of perjury that its ownership interest in the foreign corporation or any corporate intermediary is not held through bearer shares. Conforming amendments to the substantiation and documentation requirements in §§ 1.883-2T(e) and 1.883-4T(d)(4) have been made.

Commentators suggested alternative methods for making the names and addresses of 5-percent shareholders available to the IRS. However, these methods were not adopted due to the complexity of the regimes proposed, and questions as to whether such approaches would in fact address the commentators' concerns. Instead, the IRS and the Treasury Department chose to rely on procedures already in place in § 1.883-1(c)(3) and as modified by § 1.883-1T(c)(3), which requires, among other things, that a foreign corporation obtain ownership statements to document and substantiate all representations it has made on Form 1120-F, and that it provide substantiating documentation in response to a written request from the Commissioner. Such information must be provided to the IRS within 30 days (rather than the 60 days allowed by § 1.883-1(c)(3)) of a written request by the Commissioner, because the names and addresses of relevant shareholders will no longer be provided on the Form 1120-F by taxpayers. See § 1.883-1T(c)(3).

The IRS and the Treasury Department believe that these revised reporting rules will simultaneously reduce disclosure concerns raised by taxpayers and encourage greater reporting of the information the IRS needs to administer section 883. The IRS and the Treasury Department also believe these changes, in conjunction with the remaining reporting requirements in §§ 1.883-2(f), 1.883-2T(f), 1.883-3T(d), 1.883-4(e), and 1.883-4T(e), will provide sufficient information to ensure the sound and efficient administration of section 883.

See § 1.883-5T(d) for effective date of these temporary regulations and § 1.883-5T(e) for applicability dates that apply to these temporary regulations.

The following publications are modified as of June 25, 2007:

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), please refer to the Special Analyses section of the preamble to the cross-reference notice of proposed rulemaking published elsewhere in this issue of the Federal Register . Pursuant to section 7805(f) of the Code, these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Patricia A. Bray of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.

MSHA issued an ETS on May 22, 2007, which included hearing dates and a deadline for receiving comments. The comment period was scheduled to close on July 6, 2007, forty-five days from the date of publication, and the last hearing date was scheduled on July 19, 2007. MSHA believes this action allows commenters sufficient time to prepare comments including post-hearing comments. MSHA will accept written comments and other appropriate data for the record from any interested party up to the close of the comment period on August 17, 2007.

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 logistics with respect to the fireworks presentation were not determined with sufficient time to draft and publish an NPRM. Any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of the Charles River during the fireworks display and to provide for the safety of life on navigable waters.

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 . Any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of the Charles River during the fireworks event thus ensuring that the maritime public is protected from any potential harm associated with such an event.

“Boston 4 Celebrations,” the organization responsible for Boston's Fourth of July event, is holding a fireworks display in honor of Independence Day. This rule establishes a temporary safety zone on the navigable waters of the Charles River within a four hundred (400) yard radius of the fireworks launch barges located at approximate position 42°21.28′ N, 071°05.00′ W. This safety zone is necessary to protect the maritime public from the dangers posed by this event. It will protect the public by prohibiting entry into or movement within the proscribed portion of the Charles River during the fireworks display.

Marine traffic may transit safely outside of the zone during the effective period. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to and during the effective period via safety marine information broadcasts and Local Notice to Mariners.

This rule is effective from 9 p.m. EDT on July 4, 2007 until 11:30 p.m. EDT on July 4, 2007 with a rain date of 9 p.m. EDT on July 5, 2007 until 11:30 p.m. EDT on July 5, 2007. Marine traffic may transit safely outside of the safety zone in the majority of the Charles River during the event. Given the limited timeframe of the effective period of the zone, the size of the river and the size of the zone itself, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to and during the effective period via Local Notice to Mariners and marine information broadcasts.

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.

Although this rule will prevent traffic from transiting a portion of the Charles River during this event, the effect of this rule will not be significant for several reasons: Vessels will be excluded from the area of the safety zone for only two and one-half hours, although vessels will not be able to transit the river in the vicinity of the zone, they will be able to operate in other areas of the river during the effective period; and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Charles River from 9 p.m. until 11:30 p.m. EDT on July 4, 2007 or the same times on July 5, 2007 as a rain date. This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons described under the Regulatory Evaluation section.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Petty Officer Joseph Yonker, Sector Boston, Waterways Management Division, at (617) 223-5007.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it would establish a safety zone that will be in effect for only two and one-half hours.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, this safety zone is necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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 . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in this fireworks display.

City of Richmond, Library and Community Department Recreation Division will sponsor a fireworks display on July 3, 2007, in the waters of San Francisco Bay on Richmond Inner Harbor near the Point Potrero. The fireworks display is meant for entertainment purposes. This safety zone is issued to establish a temporary restricted area in San Francisco Bay around the fireworks launch barge during loading of the pyrotechnics, during the transit of the barge to the display location, and during the fireworks display. This restricted area around the launch barge is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barge. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.

The Coast Guard is establishing a temporary safety zone in the navigable waters of San Francisco Bay on Richmond Inner Harbor near Point Potrero. During the loading of the fireworks barge, while the barge is being towed to the display location, and until the start of the fireworks display, the temporary safety zone applies to the navigable waters around and under the fireworks barge within a radius of 100 feet. Fifteen minutes prior to and during the twenty minute fireworks display, the area to which the temporary safety zone applies will increase in size to encompass the navigable waters around and under the fireworks barge within a radius of 1,000 feet. Loading of the pyrotechnics onto the fireworks barge is scheduled to commence at 8 a.m. on July 3, 2007, and will take place at Pier 50 in San Francisco. Towing of the barge from Pier 50 to the display location is scheduled to take place between 6 p.m. and 8:30 p.m. on July 3, 2007. During the twenty minute fireworks display, scheduled to commence at approximately 9:15 p.m. on July 3, 2007, the fireworks barge will be located approximately 1,200 feet offshore from Point Potrero in the Richmond Inner Harbor in position 37°54.40′ N, 122°21.54′ W.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks barge while the fireworks are loaded at Pier 50, during the transit of the fireworks barge, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

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.

Although this regulation prevents traffic from transiting a portion of San Francisco Bay during the event, the effect of this regulation will not be significant due to the small size and limited duration of the regulated area. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.

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 is not expected to have a significant economic impact on a substantial number of entities, some of which may be small entities. This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of San Francisco Bay to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of this safety zone via public notice to mariners.

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. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Ensign Sheral Richardson, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 extension 136.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and 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” will be available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event. For the same reasons, the Coast Guard also finds, under 5 U.S.C. 553(d)(3), that good cause exists for making this rule effective fewer than 30 days after publication in the Federal Register .

This temporary safety zone is necessary to protect vessels and spectators from the hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Buffalo has determined that fireworks launches proximate to watercraft pose a significant risk to public safety. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.

A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Mercyhurst College “Old Fashion 4th of July” fireworks display. The fireworks display will occur between 10 p.m. (local) and 10:30 p.m. (local) on July 4, 2007. The safety zone for the fireworks will encompass all waters of Presque Isle Bay and Lake Erie, Erie, PA within a five hundred foot radius of position 42°08′41″ N, 080°06′40″ W. [DATUM: NAD 83].

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted on VHF Channel 16.

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.

This determination is based on the minimal time that vessels will be restricted from the zone, and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of Presque Isle Bay and Lake Erie, near Erie, PA between 10 p.m. (local) and 10:30 p.m. (local) on July 4, 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 be in effect for only thirty minutes for one event. Vessel traffic can safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Buffalo to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these special local regulations and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT .

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 procedure; and related management system 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. That paragraph applies because this event establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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 fireworks display is scheduled to occur on July 3, 2007, and there is insufficient time to conduct a notice and comment rulemaking. Any delay in the regulation's effective date would be contrary to the public interest because the safety zone is needed to ensure the maritime public is protected from the potential harm associated with a fireworks display.

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

This rule establishes a safety zone on the navigable waters of Nahant Bay within a 500 yard radius around the fireworks barge located at approximate position 42°27′41.2″ N, 70°55′6.1″ W. The safety zone is in effect from 8:15 p.m. EDT until 9:45 p.m. EDT on July 3, 2007.

The safety zone temporarily restricts movement within this portion of Nahant Bay and is needed to protect the maritime public from the dangers posed by a fireworks display. Marine traffic may transit safely outside of the zone during the effective period. The Captain of the Port does not anticipate any negative impact on vessel traffic due to the event. Public notifications will be made prior to the effective period via marine information broadcasts and Local Notice to Mariners.

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.

Although this rule prevents vessel traffic from transiting a portion of Nahant Bay during the effective period, the effects of this regulation will not be significant for several reasons: Vessels will be excluded from the proscribed area for one and one-half hours, vessels will be able to operate in the majority of Nahant Bay during the effective period, and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Nahant Bay from 8:15 p.m. EDT until 9:45 p.m. EDT on July 3, 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 be in effect for only one and one-half hours, vessel traffic can safely pass around the zone, and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not pose 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 M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This paragraph applies because the rule would establish a safety zone.

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 permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event. For the same reasons, the Coast Guard also finds, under 5 U.S.C. 553(d)(3), that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port Zones, and the explosive hazards of fireworks, the Captain of the Port Buffalo has determined that fireworks launches proximate to watercraft pose a significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at this event and help minimize the associated risks.

A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Independence Day Fireworks Display. The fireworks display will occur between 9 p.m. (local) and 10 p.m. (local) on July 4, 2007.

The safety zone for the fireworks will encompass all waters of the St. Lawrence River at Heart Island, Alexandria Bay, NY within a seven hundred foot radius of position 44°20′42″ N, 075°55′16″ W. [DATUM: NAD 83].

All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted on VHF Channel 16.

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.

This determination is based on the minimal time that vessels will be restricted from the zone, and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.

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

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

This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the St. Lawrence River near Alexandria Bay, NY between 9 p.m. (local) and 10 p.m. (local) on July 4, 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 be in effect for only one hour for one event. Vessel traffic can safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Buffalo to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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 would 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these special local regulations and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT .

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 procedure; and related management system 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. That paragraph applies because this rule establishes a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, this Safety zone is necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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 . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in this fireworks display.

Peninsula Celebration Association will sponsor a fireworks display on July 4, 2007 in the waters of San Francisco Bay on Redwood Creek near the Port of Redwood City. The fireworks display is meant for entertainment purposes. This safety zone is issued to establish a temporary restricted area in San Francisco Bay around the fireworks launch barge during loading of the pyrotechnics, during the transit of the barge to the display location, and during the fireworks display. This restricted area around the launch barge is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barge. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.

The Coast Guard is establishing a temporary safety zone in the navigable waters of San Francisco Bay near Pier 50 and in Redwood Creek. During the loading of the fireworks barge, while the barge is being towed to the display location, and until the start of the fireworks display, the temporary safety zone applies to the navigable waters around and under the fireworks barge within a radius of 100 feet. Fifteen minutes prior to and during the fifteen minute fireworks display, the area to which the temporary safety zone applies will increase in size to encompass the navigable waters around and under the fireworks barge within a radius of 1,000 feet. Loading of the pyrotechnics onto the fireworks barge is scheduled to commence at 9 a.m. on July 4, 2007, and will take place at Pier 50 in San Francisco. Towing of the barge from Pier 50 to the display location is scheduled to take place between 12 p.m. and 8 p.m. on July 4, 2007. During the fireworks display, scheduled to commence at approximately 9:30 p.m., the fireworks barge will be located approximately 600 feet off Wharf #5 in the Port of Redwood City in approximate position 37°30.35′ N, 122°12.85′ W.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks barge while the fireworks are loaded at Pier 50, during the transit of the fireworks barge, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

The Code of Federal Regulations prohibits any unauthorized person or vessel from entering or remaining in a safety zone. Vessels or persons violating this section will be subject to both criminal and civil penalties.

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.

Although this regulation prevents traffic from transiting a portion of San Francisco Bay during the event, the effect of this regulation will not be significant due to the small size and limited duration of the regulated area. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.

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 is not expected to have a significant economic impact on a substantial number of entities, some of which may be small entities. This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of San Francisco Bay to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of this safety zone via public notice to mariners.

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. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Ensign Sheral Richardson, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 extension 136.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and 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” will be available in the docket where indicated under ADDRESSES .

Regulatory Information

On April 9, 2007, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Patapsco River, Northwest and Inner Harbors, Baltimore, MD” in the Federal Register (72 FR 17458). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Each year, the USS CONSTELLATION Museum conducts a “turn-around” ceremony involving the sloop-of-war USS CONSTELLATION in Baltimore, Maryland on the Friday following Labor Day. The annual turning of the USS CONSTELLATION aids in the maintenance of the historic ship by ensuring even weathering of her hull. Planned events include a three-hour, round-trip tow of the CONSTELLATION in the Port of Baltimore, with an onboard salute with navy pattern cannon while the historic vessel is positioned off Fort McHenry National Monument and Historic Site. The historic sloop-of-war USS CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. The return dead ship tow of the CONSTELLATION to its berth in the Inner Harbor is expected to occur immediately upon execution of a tug-assisted turn-around of the CONSTELLATION on the Patapsco River near Fort McHenry. The Coast Guard anticipates a large recreational boating fleet during this event, scheduled on a late Friday afternoon during the summer in Baltimore, Maryland. Operators should expect significant vessel congestion along the planned route.

The purpose of this rule is to promote maritime safety and protect participants and the boating public in the Port of Baltimore immediately prior to, during, and after the scheduled event. The rule will provide for a clear transit route for the participating vessels, and provide a safety buffer around the participating vessels while they are in transit. The rule will impact the movement of all vessels operating upon certain waters of the Patapsco River, Northwest Harbor and Inner Harbor.

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

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This safety zone is a moving zone that will encompass only a small portion of the waterway. Vessels or persons may be able to transit safely around this zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to operate, remain or anchor within certain waters of the Patapsco River, Northwest Harbor and Inner Harbor, in Baltimore, Maryland, from 2 p.m. through 7 p.m. local time, annually, on the Friday following Labor Day. Because the zone is of limited size and duration, it is expected that there will be minimal disruption to the maritime community. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the river and harbors to allow mariners to make alternative plans for transiting the affected areas. In addition, smaller vessels not constrained by their draft, which are more likely to be small entities, may transit around the safety zone.

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. We received no requests for assistance from any small entities.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. That paragraph applies because this rule establishes a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, safety zones are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

For the same reasons listed in the previous paragraph, 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 . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in this fireworks display.

North Tahoe Business Association is sponsoring a fireworks display on July 3, 2007; Tahoe City Rotary is sponsoring a fireworks display on July 4, 2007; and Westshore Café is sponsoring a fireworks display on July 5, 2007 in the waters of Lake Tahoe. The fireworks displays are meant for entertainment purposes in celebration of Independence Day. These safety zones are being issued to establish a temporary regulated area in Lake Tahoe around the fireworks launch barge during loading of the pyrotechnics, during the transit of the barge to the display location, and during the fireworks display. These safety zones around the launch barge are necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barge. The Coast Guard has granted the event sponsor marine event permits for the fireworks displays.

The Coast Guard is establishing temporary safety zones on specified waters of Lake Tahoe. During the loading of the fireworks barges, while the barges are being towed to the display location, and until the start of the fireworks display, the safety zones will apply to the navigable waters around and under the fireworks barges within a radius of 100 feet. Fifteen minutes prior to and during the fireworks displays, the area to which these safety zones applies to will increase in size to encompass the navigable waters around and under the fireworks barges within a radius of 1,000 feet.

Loading of the first pyrotechnics onto the fireworks barge is scheduled to commence at 8 a.m. on July 2, 2007, and will take place at Obexer's Boat Company, Homewood, California. Towing of the barge from Obexer's Boat Company to the display location is scheduled to take place between 9 a.m. and 11 a.m. on July 3, 2007. During the fireworks display, scheduled to commence at approximately 9:30 p.m. on July 3, 2007, the fireworks barge will be located approximately 600-700 feet off of the shore line of King's Beach in position 39°14′00″ N, 120°01′50″ W.

Loading of the second pyrotechnics onto the fireworks barge is scheduled to commence at 8 a.m. on July 4, 2007, and will take place at Obexer's Boat Company, Homewood, California. Towing of the barge from Obexer's Boat Company to the display location is scheduled to take place between 9 a.m. and 2 p.m. on July 4, 2007. During the fireworks display, scheduled to commence at approximately 9:30 p.m. on July 4, 2007, the fireworks barge will be located approximately 600-700 feet off of the shore line of Tahoe City in position 39°10′00″ N, 120°08′00″ W.

Loading of the third pyrotechnics onto the fireworks barge is scheduled to commence at 8 a.m. on July 5, 2007, and will take place at Obexer's Boat Company, Homewood, California. Towing of the barge from Obexer's Boat Company to the display location is scheduled to take place between 9 a.m. and 2 p.m. on July 5, 2007. During the fireworks display, scheduled to commence at approximately 9:30 p.m. on July 5, 2007, the fireworks barge will be located approximately 600-700 feet off of the shore line of Homewood near Westshore Café in McKinney Bay in position 39°05′00″ N, 120°09′00″ W.

The effect of the temporary safety zones will be to restrict general navigation in the vicinity of the fireworks barges while the fireworks are loaded, during the transit of the fireworks barge, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the safety zones. These safety zones are needed to keep spectators and vessels a safe distance away from the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

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.

Although this rule restricts access to the waters encompassed by the safety zones, the effect of this rule will not be significant because the local waterway users will be notified via public broadcast notice to mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities.

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 is not expected to have a significant economic impact on a substantial number of entities, some of which may be small entities. This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of Lake Tahoe to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of these safety zones via public notice to mariners.

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. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Ensign Sheral Richardson, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 ext. 136.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and 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. Paragraph (34)(g) is applicable because this rule establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

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. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, safety zones are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

For the same reasons listed in the previous paragraph, 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 . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in this fireworks display.

Red, White, and Tahoe Blue, Lake Tahoe Visitor's Authority, and Glenbrooks Fireworks Committee are sponsoring fireworks displays on July 4, 2007. These fireworks displays are meant for entertainment purposes in celebration of Independence Day. These safety zones are being issued to establish temporary regulated areas in Lake Tahoe around the fireworks launch barge during loading of the pyrotechnics, during the transit of the barges to the display locations, and during the fireworks displays. These safety zones around the launch barges are necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barges. The Coast Guard has granted each event sponsor a marine event permit for the fireworks display.

The Coast Guard is establishing temporary safety zones on specified waters of Lake Tahoe. During the loading of the fireworks barges, while the barges are being towed to the display locations, and until the start of the fireworks displays, these safety zones will apply to the navigable waters around and under the fireworks barges within a radius of 100 feet. Fifteen minutes prior to and during the fireworks displays, the area to which these safety zones applies to will increase in size to encompass the navigable waters around and under the fireworks barges within a radius of 1,000 feet.

The first fireworks show is sponsored by Red, White, and Tahoe Blue and is in the waters of Lake Tahoe on Crystal Bay. Commencing at 5 a.m. on July 1, 2007, the barges will be towed from the shoreline of Incline Village, Nevada, to the display location, which is approximately 700 feet off the shore on Crystal Bay in position 39°14′06″ N, 119°57′53″ W. While the barges are in their display location they will be anchored and loaded from July 1, 2007, until July 4, 2007. The fireworks display is scheduled to commence at 9 p.m. on July 4, 2007 and last approximately thirty minutes.

The second fireworks show is being sponsored by Lake Tahoe Visitor's Authority and is in the waters of South Lake Tahoe. Loading of the pyrotechnics onto the fireworks barges is scheduled to commence at 8:30 a.m. on July 2, 2007, and will take place at Tahoe Keys Marina in South Lake Tahoe, California. Towing of the barges from Tahoe Keys Marina to the display location is scheduled to take place between 9:30 a.m. and 3 p.m. on July 4, 2007. During the fireworks display, scheduled to commence at approximately 9:45 p.m. on July 4, 2007, the fireworks barge will be located approximately 1,500 feet off of the shore line of South Lake Tahoe in position 38°57′56″ N, 119°57′21″ W. The fireworks display is scheduled to last approximately thirty minutes.

The third fireworks show is being sponsored by Glenbrooks Fireworks Committee. Loading of the pyrotechnics onto the fireworks barge is scheduled to commence at 9 a.m. on July 3, 2007, and will take place at Obexers Marina in Homewood, California. Towing of the barge from Obexers Marina to the display location is scheduled to take place between 1 p.m. and 5 p.m. on July 3, 2007. The barge will be anchored overnight. During the fireworks display, scheduled to commence at approximately 9:30 p.m. on July 4, 2007, the fireworks barges will be located approximately 600 feet off of the shore line of Glenbrook, Nevada on Glenbrook Bay in position 39°05′23″ N, 119°56′39″ W. The fireworks display is scheduled to last approximately eighteen minutes.

The effect of the temporary safety zones will be to restrict general navigation in the vicinity of the fireworks barges while the fireworks are loaded, during the transit of the fireworks barges, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the safety zones. These safety zones are needed to keep spectators and vessels a safe distance away from the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

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.

Although this rule restricts access to the waters encompassed by the safety zones, the effect of this rule will not be significant because the local waterway users will be notified via public broadcast notice to mariners to ensure the safety zones will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities.

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 is not expected to have a significant economic impact on a substantial number of entities, some of which may be small entities. This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of Lake Tahoe to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of this safety zone via public notice to mariners.

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. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Ensign Sheral Richardson, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 ext. 136.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and 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. Paragraph (34)(g) is applicable because this rule establishes a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

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

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

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

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

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

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

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

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

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

NMFS published a proposed rule on November 15, 2006 (71 FR 66482), to permanently prohibit gillnet fishing in portions of the Southeast U.S. to protect right whales from entanglement in gillnet gear during their annual calving season. The proposed rule included prohibitions on gillnet fishing and possession, with some exemptions. A detailed description of the proposed management measures and supporting background information and analysis is included in the proposed rule (71 FR 66482, November 15, 2006).

NMFS would like to highlight that this action removes the definitions of “Shark gillnetting,” “Strikenet or to fish with strikenet gear,” and “To strikenet for sharks” from 50 CFR 229.2. The revised ALWTRP regulations are based on gear characteristics, and NMFS believes the regulations do not need to rely on these definitions.

NMFS requested public comment on the proposed rule and provided a 30 day public comment period. NMFS received requests from the public to extend the comment period, and on January 16, 2007, NMFS published a notice in the Federal Register reopening the comment period for an additional 15 days (72 FR 1689). In that notice, NMFS announced that all comments received during the period November 15, 2007, through January 31, 2007, would be considered in this rulemaking. Below, we summarize the public comments received, our responses to those comments, and a change made to the proposed regulations based on the comments.

NMFS received 4,571 comments on the proposed rule from fishery management agencies and commissions of southeastern U.S. states, the Marine Mammal Commission (MMC), environmental organizations, commercial fishing organizations, commercial and recreational fishermen, and interested members of the public. NMFS received these comments in the form of electronic mail, letters, and facsimile. Of those, 4,544 were identical, or slightly modified, form letters expressing support for the proposed rule, and 27 contained substantive comments on specific measures or components of the proposed rule. NMFS did not receive any comments on the removal of strikenet definitions. In the text below, NMFS provides a summary of the comments, recommendations, and issues raised that relate to the measures in this rulemaking, provides responses to them, and identifies changes to the proposed regulations. Comments not relevant to this rulemaking, such as those pertaining to the February 16, 2006, temporary rule; the November 15, 2006, emergency rule; and process-related comments relative to the ALWTRT′s Southeast (SE) Subgroup meeting were read and considered but are not being discussed in this document addressing the proposed and final rule.

Comment 1: Several commenters stated that gillnet fishing gear is dangerous to right whale mothers and calves. These commenters urged that the proposed rule be finalized, citing the right whale's extremely low abundance estimates and stating that the loss of even one animal contributes to the risk of extinction. Several of these commenters indicated that the loss of right whales has implications throughout the ecosystem. Others emphasized that it is NMFS' responsibility to protect this species and prevent its extinction.

Response: NMFS agrees that gillnet fishing gear can be dangerous to right whale calves, as demonstrated by the January 22, 2006, right whale calf mortality, which occurred as a result of entanglement in gillnet gear allowed to be used in the Southeast U.S. Restricted Area during the restricted period. NMFS also agrees that estimates of right whale abundance are low, that the loss of one right whale may potentially have implications for the right whale population and its ecosystem (see response to Comment 2), and that NMFS has a responsibility to protect right whales. The purpose of this final rule is to protect right whales from the threat of entanglement in gillnet gear by implementing, with revisions, existing ALWTRP regulations promulgated in 1997 under the MMPA that require the Assistant Administrator for Fisheries (AA) to close the Southeast U.S. Restricted Area to gillnet gear during the annual restricted period unless the AA revises the restricted period or implements other measures under 50 CFR 229.32(g)(2).

Comment 2: One commenter stated that concerns for the status of the right whale are unwarranted and population figures are not valid based on his calculations of right whale abundance using a variety of variables (e.g., abundance in 1935, sex ratio, calving interval, age at senescence), and requested information upon which NMFS' population estimates were based. The commenter also questioned the role of fishing interactions as one of the causes of the right whale's reduced population.

Response: NMFS relies on the best available scientific information, including peer-reviewed scientific literature, to assess northern right whale abundance, status, and threats in marine mammal Stock Assessment Reports (SAR), required by provisions of the MMPA. The SAR for northern right whales in the North Atlantic is updated annually and reviewed both internally and externally by teams of scientific experts. The 2006 SAR for northern right whales in the North Atlantic (Waring et al. , 2007) indicates that the best estimate of minimum population size for the species is 306 individually-recognized whales known to be alive during 2001. Because the data are from identification photographs and genetic samples in all known right whale aggregation areas, and very few new adult whales have been added since the mid-1990s, NMFS believes that these records represent a nearly complete census of the population. Therefore, NMFS does not rely on life history parameters to estimate right whale abundance and disagrees that the population figures quoted in the proposed rule are invalid.

Additional population analyses and modeling exercises have been conducted and published in the peer-reviewed literature (e.g., Caswell et al. , 1999; Fujiwara and Caswell, 2001). These studies cite high mortality rates in the 1980s and 1990s and conclude that the population began to decline in the early 1990s. These studies conclude that preventing the death of even one adult female could significantly affect the population's trend. A 2001 evaluation by the International Whaling Commission's (IWC) Scientific Committee (Best et al. , 2001) also concluded that the population of northern right whales in the North Atlantic is not likely much greater than 300 individuals.

As a result of the low population size, the lack of observed population growth, and deaths from human activities, NMFS determined in 2000 and each year since that the MMPA-defined “Potential Biological Removal” (i.e., the maximum number of individuals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its Optimum Sustainable Population (OSP)) for northern right whales in the North Atlantic is zero. That is, the population cannot sustain any deaths or serious injuries due to human causes for the species to recover. Therefore, NMFS disagrees that concerns for the right whale population size are unwarranted.

With regard to the role of fishing interactions as one of the true causes of the reduced population, NMFS acknowledges that by 1935, the northern right whale population was severely depleted by commercial whaling. However, the second-leading known cause of death in right whales from 1970 to 2005 is entanglement in fishing gear. Consequently, the current right whale recovery plan states that implementation of strategies to reduce the likelihood of entanglement is an action that must be taken to prevent extinction or to prevent the species from declining irreversibly (NMFS, 2005).

In sum, NMFS believes that the status of right whales has not improved since the promulgation of the ALWTRP in 1997 and that implementing this provision of the ALWTRP, with revisions, is warranted and necessary for the protection and conservation of right whales.

Comment 3: One commenter questioned whether the January 22, 2006, right whale mortality was the result of entanglement in gillnet gear. The commenter stated that NMFS initially reported to local media that the preliminary cause of death was ship strike, the immediate cause of death was never determined by the necropsy team, and the more typical causes of death from entanglement (e.g., infection, dehydration, or drowning) were not found in this case. The commenter also stated that the lead necropsy scientist reported that the scars on the whale were healing (i.e., the whale could not have been killed by recent entanglement), and that no gear was retrieved from the animal. The commenter further stated that NMFS falls short of satisfying the evidentiary requirements for implementing 50 CFR 229.32(g)(1).

Response: NMFS disagrees that staff reported to local media the January 22, 2006, right whale calf mortality was the result of ship strike. However, NMFS is aware that, shortly following the necropsy, one media outlet erroneously quoted NMFS as stating the cause of death was a ship strike, and recently, the erroneous report was repeated by a second media outlet. In both instances, NMFS contacted the media outlets to correct the inaccuracy.

NMFS acknowledges that the necropsy team did not determine the immediate cause of death of the right whale calf (e.g., infection, dehydration). Internal organs had autolyzed significantly by the time the animal was necropsied. However, the final necropsy report stated the following with regard to the pre-mortem net entanglement injuries: “the most parsimonious hypothesis is that these injuries were sufficiently serious to initiate the demise of” this right whale. Thus, the necropsy report supported NMFS′ determination that the right whale calf was seriously injured and ultimately died as a result of entanglement in gillnet gear.

NMFS also acknowledges that healing processes had initiated in the peduncle lesions created by net entanglement. Normal live tissue responds immediately to injuries by initiating the healing process. For example, coagulation (“healing”) stops uncontrolled blood flow and similarly, tissue undergoes changes (“healing”) in an attempt to repair injuries. However, it is important not to confuse the process of “healing” (an injury yet to be repaired) with an animal′s ability to successfully complete the healing process (reparation). In the case of the right whale calf, the animal′s body was in the process of attempting to repair (healing) its wounds; however, it was unsuccessful at repairing its entanglement injuries prior to succumbing to death.

Finally, NMFS also acknowledges that gillnet gear was not found on the dead right whale calf. However, evidence of recent entanglement was clearly documented by the necropsy team. Entanglement-related damage to the animal′s peduncle included “extensive epidermal and dermal indentation and penetration with overall pattern formation of diamond, vee, and straight lines....” Images of these lesions were presented at an informal orientation workshop conducted for interested participants prior to the formal SE Subgroup meeting. At least one gillnet fisherman present stated that the lesions were very similar to gillnet lesions observed on rays incidentally taken in gillnet during his fishing operations. The damage to the animal that was judged to be the result of entanglement met NMFS′ criteria of a serious injury (i.e., an injury likely to result in mortality (50 CFR 216.3)). Therefore, NMFS disagrees with the commenter that NMFS falls short of evidentiary requirements for implementing 50 CFR 229.32(g)(1) since NMFS has determined, based on best available information and discussions with scientific investigators, that the right whale′s entanglement and serious injury by gillnet gear ultimately led to the death of the animal (see also responses to comments 4, 5, and 6).

Comment 4: One commenter stated that the proposed rule does not reflect the fishing industry's belief that illegal fishing gear used in the Southeast U.S. Restricted Area was likely involved in the interaction. The commenter stated that there was no clear evidence that legal gear used in the Southeast U.S. Restricted Area was the primary cause of death of the right whale calf found dead on January 22, 2006. The commenter also stated that NMFS ignored information provided by the fishing industry at the SE Subgroup meeting that an illegal gillnet operation was cited by the U.S. Coast Guard in the same area and time as the whale mortality event.

Response: NMFS Office of Law Enforcement has actively investigated the January 22, 2006, right whale mortality, as well as gillnet fishing operations occurring in the same general time and area. As a matter of enforcement policy, NMFS does not provide information on alleged violations of fishery regulations prior to the issuance of charges or if no charges are filed. However, NMFS affirms that we have actively considered the information presented by the fishing industry regarding potential illegal fishing in developing both the proposed and this final rule and that there is no substantiated evidence indicating that illegal gear was involved in the entanglement of the right whale calf.

The April 2006 SE Subgroup meeting Key Outcomes Document (Ellenberg Associates, Inc., 2006) does reflect that some attendees questioned whether legal or illegal fishing caused the right whale mortality. NMFS learned during the Subgroup meeting that there was some confusion among fishermen as to the legality of 4-7/8 inch (12.4 cm) stretched mesh gillnet being used in the restricted area during the restricted period, and, according to the fishermen, this gear was being used in the area where the whale calf was found. One of the industry statements captured in the Key Outcomes Document under Individual Comments reflects this confusion: “Industry knows what happened with this calf: Fishermen suspect the entanglement involved 4-7/8 inch stretched mesh gillnet.” However, fishing 4-7/8 inch (12.4 cm) stretched mesh gillnet was allowed under ALWTRP regulations in the Southeast U.S. Restricted Area during the restricted period.

The actual gear entangling the calf was never recovered and the mesh size of the gillnet gear involved in the entanglement could not be determined. Various mesh sizes were legally used within the area, subject to different restrictions established under the ALWTRP regulations, fishery management plans, and applicable state authorities. Even if the actual gear used was 4-7/8 inch (12.4 cm) stretch mesh, as asserted by industry at the SE Subgroup meeting, that gear type was allowed to be used under ALWTRP regulations.

Scientists conducting right whale aerial surveys during the weeks preceding the discovery of the dead right whale calf documented large numbers of buoys in Federal waters off the mouth of the St. Johns River. On-water scientists studying right whales reported and photographed fishermen hauling back large amounts of gillnet that were attached to the buoys. These observations were reported at the SE Subgroup meeting and included in the meeting's Key Outcomes Document (Ellenberg Associates, Inc. 2006) This fishing effort was in the vicinity of where the calf's carcass was found. It was also in an area that included a high density of right whale sightings, including the right whale calf prior to its death. NMFS asked right whale scientists conducting research in the area to report any activity that they felt might be a threat to right whales. No other fishing activity of concern in NE Florida or SE Georgia at that time was reported to NMFS.

NMFS and its law enforcement partners strive to ensure compliance and detect violations. In this case, a large amount of legal fishing with gillnet gear was occurring in the time and place of the right whale calf′s entanglement and death. NMFS has considered and investigated the information presented by the fishing industry at the SE Subgroup meeting. NMFS continues to believe, consistent with its previous determinations under 50 CFR 229.32(g)(1), that the death of the right whale calf was the result of entanglement in gillnet gear allowed to be used in the Southeast U.S. Restricted Area during the restricted period.

Comment 5: One commenter stated that NMFS failed to identify the specific fishery involved in the January 22, 2006, right whale calf mortality event. This commenter stated that there was no evidence the North Carolina whiting gillnet fishery was involved in the alleged entanglement.

Response: The implementing regulations do not require NMFS to identify the specific fishery involved; rather, NMFS must determine that the entanglement was caused by gillnet gear allowed to be used in the Southeast U.S. Restricted Area during the restricted period. See response to Comments 3 and 6 regarding NMFS' determinations that gillnet gear was involved in the entanglement and that the gear was set within the Southeast U.S. Restricted Area, respectively. The restricted period at the time was from November 15 to March 31. The calf was sighted on December 30, 2005, and no linear lesions were evident. However, on January 8, 2006, aerial photographs taken of the calf reveal that the peduncle linear lesions were present. Therefore, the entanglement must have occurred between those two dates and during the restricted period.

Comment 6: One commenter stated there was no scientific evidence that the gear implicated in the January 22, 2006, right whale mortality event was actually set in the Southeast U.S. Restricted Area. This commenter stated that gear could have been from outside the Southeast U.S. Restricted Area and pointed out that entangled whales often travel great distances.

Response: The New England Aquarium′s right whale photograph database was consulted to determine the sighting history for the dead calf. On December 30, 2005, the calf and its mother were sighted together off St. Catherines Island, Georgia. The calf did not show evidence of entanglement at the time. On January 8 and 9, 2006, the pair were sighted off the mouth of Nassau Sound, Florida, and Cumberland Sound, Georgia, respectively. At that time, the aerial survey photographs suggested the calf had linear scars, consistent with some type of entanglement event. Both sightings occurred well within the Southeast U.S. Restricted Area (the Georgia and Florida sighting locations were greater than 30 nm (55.6 km) and 70 nm (129.6 km), respectively, from the nearest boundary of the Southeast U.S. Restricted Area). Since mother-calf pairs typically remain on the calving grounds in January and are unlikely to travel very long distances in a short period of time, NMFS believes the calf became entangled in gillnet gear within the Southeast U.S. Restricted Area.

Comment 7: One commenter stated that NMFS did not adequately consider the alternative fishing restrictions proposed by gillnet fishermen at the SE Subgroup meeting that would allow gillnet fishing for whiting to continue north of 29° N. lat. The commenter then listed the restrictions proposed at the SE Subgroup meeting, and included the following additional fishing restrictions: (1) 600 pound (272.4 kg) weak links, (2) all gear would be hauled back one hour before sunset, and (3) cooperative research. The commenter stated these proposed restrictions were similar to those being proposed in the exemption for the Spanish mackerel fishery, but NMFS disregarded the North Carolina whiting fishermen′s proposal. The commenter also stated that, unlike the fishing industry proposal, NMFS fully considered comments from the MMC.

Two other commenters stated that they did not support the alternative fishing restrictions proposed by the commercial fishing industry, stating that the proposed measures do not reduce risk inherent in the gear type and do not address the threat to newborn calves in that area.

Response: NMFS explicitly considered the specific alternative gillnet restrictions proposed by the fishermen at the SE Subgroup meeting. The fishermen′s proposal was included in the Key Outcomes Document (Ellenberg Associates, Inc., 2006) and was analyzed in the EA as Alternative 2. However, NMFS determined neither the operational restrictions proposed by the commenter, nor any other operational restrictions, would provide sufficient reduction in the likelihood of gillnet gear interactions with right whales, or reduce the risk of right whale serious injury and mortality in the Southeast U.S. Restricted Area. The proposed restrictions would allow large amounts of net to be in the water for long periods of time (i.e., long soak time) in the core right whale calving area.

NMFS considered the three additional fishing restrictions proposed by the commenter (see comment above). First, it is unknown whether weak links will release very young calves. Second, NMFS acknowledges that hauling back gear prior to sunset would likely result in risk reduction. However, the potential for right whale interactions with gillnets in a substantial and core portion of the right whale calving area would not be eliminated during the calving season because large amounts of net and vertical line with very long soak times would continue to be used in the Southeast U.S. Restricted Area. Third, cooperative research does not in and of itself reduce risk to right whales. Therefore, NMFS has determined that these newly proposed restrictions do not meet the bases in 50 CFR 229.32(g)(2) under which exemptions to a full, permanent closure of the restricted area are allowable.

NMFS disagrees that the whiting gillnet proposal for fishing north of 29° N. lat. is similar to the Spanish mackerel exemption. Right whale distribution patterns south of 29° N. lat. and existing state gillnet prohibitions combine to result in minimal spatial and temporal overlap of right whales and Spanish mackerel fishing effort during the exempted periods. All gillnet fishing, including Spanish mackerel fishing, is prohibited north of 29° N. lat. by this final rule because any gillnet fishing activity in that area during the calving season would result in heavy spatial and temporal overlap with calving right whales. For the minimal amount of time that right whales and Spanish mackerel fishing effort do overlap south of 29° N. lat., the fishing gear characteristics and operational methods reduce risk to right whales: nets greater than 800 yards (2,400 ft, 732 m) are prohibited and soak time must be less than one hour. The whiting fishermen proposal would allow nets up to 2,800 yards (8,400 ft, 2.56 km) in length (2,000 more yards (6,000 ft, 1.83 km) of net and associated vertical lines than allowed by the Spanish mackerel exemption) and soak times of 4-6 hours (Ellenberg Associates, Inc. 2006).

NMFS considered comments submitted by the MMC. Title II of the MMPA charges the MMC with recommending to Federal officials steps the MMC deems necessary or desirable for the protection and conservation of marine mammals. The MMPA charges Federal officials with responding to the MMC regarding their recommendations. As such, NMFS is required to consider MMC recommendations. As part of this rulemaking, NMFS has considered the MMC recommendations, similar to other recommendations, relative to 50 CFR 229.32(g)(1) and (2).

Comment 8: One commenter stated that the actions contained in the proposed rule are beyond the scope of the authority of the NMFS Southeast Regional Office (SERO).

Response: The regulations at 50 CFR 229.32(g)(1) state that the AA must take specific action when a serious injury or mortality of a right whale occurs in the Southeast U.S. Restricted Area from November 15 through March 31 as a result of entanglement by gillnet gear allowed to be used in that area and time. NMFS is required to close that area to that gear type for the rest of that time period and for that same time period in each subsequent year, unless the AA revises the restricted period or unless other measures are implemented in accordance with 50 CFR 229.32(g)(2). The January 22, 2006, right whale calf mortality occurred as a result of entanglement in gillnet gear allowed to be used in the Southeast U.S. Restricted Area during the restricted period (see responses to Comments 3, 4, 5, and 6). Consequently, the AA determined to take action through this final rule to prevent additional serious injury or mortalities of right whales. Thus, NMFS has appropriately implemented its authority.

Comment 9: One commenter stated that the provisions required for the exemption of gillnetting for sharks and for Spanish mackerel south of 29° N. lat., including restrictions on setting nets within 3 nm (5.6 km) of right whales and other large whales and requiring the removal of nets from the water if a whale approaches within 3 nm (5.6 km), may be difficult to put into practice and impossible to enforce, given that the exemptions occur in areas for which there are no dedicated marine mammal surveys and the likelihood that fishermen would receive notification of whales in the area would be small. The commenter suggests continued research on methodology, such as passive acoustic monitoring, for determining that no whales are in the vicinity of nets in the water.

Response: NMFS acknowledges these provisions may be challenging to enforce, but we believe other requirements for the exempted fisheries will allow fishermen to detect and avoid close interactions with large whale species. For example, fishermen gillnetting for sharks in the restricted area are required to use a spotter plane (50 CFR 229.32(f)(4)(iv)), so whales in the area will likely be seen and fishermen will be capable of removing gear from the water. The Spanish mackerel fishery has existing gear requirements at 50 CFR 622.41(c)(3)(ii), including short soak time, limit of one net fished, set, or placed in the water at any one time, and restrictions on float line length, as well as new requirements prohibiting the setting of gear at night or in low visibility and removing gear from the water before night or if visibility decreases below 500 yards (1,500 ft, 460 m). NMFS believes these factors, in conjunction with known and predicted right whale distribution patterns in the Southeast U.S. Restricted Area south of 29° N. lat. during December through March, and existing Florida regulations prohibiting gillnetting in state waters that further reduce the potential spatial overlap between gillnet fishing and right whales, are operationally effective and will protect right whales from the risk of serious injury and mortality.

NMFS agrees that methods such as passive acoustic monitoring may be useful for managing human interactions with whales. However, at this time it is unknown if mother/calf pairs vocalize while in the Southeast U.S. calving area. Research in this area is underway. For example, hydrophone arrays were deployed during the 2006-2007 calving season in the vicinity of the St. Mary′s and Brunswick River entrances. Researchers will soon begin examining the findings and comparing them to aerial survey sightings to determine the efficacy of this technology in reliably detecting the presence of whales, including mother/calf pairs, in the Southeast U.S. calving area.

Comment 10: NMFS received several comments regarding the economic impact of the proposed rule. One commenter stated that the proposed regulations disproportionately impact North Carolina gillnetters targeting whiting and stated that these fishermen are not being provided with a safe, viable economic alternative to continue fishing for whiting in the region. Other commenters stated that while the rule may impose a burden on some gillnetters, economic interests should not supersede necessary species protection, and fishing operations must be restricted to reduce entanglement risk to endangered right whales.

Response: As required by the Regulatory Flexibility Act (RFA), NMFS conducted an analysis of the socio-economic impacts of these regulations, which can be found in the EA and regulatory flexibility analysis. NMFS agrees that this final rule is expected to most greatly affect fishermen who fish for whiting in the Southeast U.S. Restricted Area North. NMFS notes, however, that all gillnet fishing will be prohibited by this final rule in the Southeast U.S. Restricted Area North, not just whiting fishing. In addition, comments made by whiting fishermen at the SE Subgroup meeting suggest these losses could be mitigated by moving into other areas and/or targeting other species at other times of the year, resulting in minimal long-term impacts for these fishermen from this final rule. Finally, at the SE Subgroup meeting, NMFS inquired about the feasibility of fishing for whiting in other areas, such as the Southeast U.S. Restricted Area South, but fishermen reported that a unique habitat feature off northeast Florida resulted in a very localized concentration of whiting and this is where whiting gillnet fishing effort was necessarily focused.

This final rule implements regulations at 50 CFR 229.32(g)(1), with associated revisions to 50 CFR 229.32(f). Consequently, anything less than a full and permanent closure of the Southeast U.S. Restricted Area to all gillnet fishing during the restricted period can only be authorized based on the considerations in 50 CFR 229.32(g)(2). This final rule eliminates the potential for right whale interactions with gillnets in the Southeast U.S. Restricted Area North, a substantial and core portion of the right whale calving area. However, this final rule does allow for gillnet fishing exemptions in the Southeast U.S. Restricted Area South. NMFS has determined that a combination of existing and new regulatory requirements for exempted fisheries in this area and during the restricted period are both operationally effective and capable of protecting right whales from the risk of serious injury and mortality pursuant to 50 CFR 229.32(g)(2)(i) (see also response to Comment 7).

Comment 11: One commenter stated that there is no evidence that low-rise North Carolina-style whiting gear or associated vertical lines presents a serious threat to right whales in the Southeast U.S. Restricted Area.

Response: Although the exact mechanism by which right whales become entangled in gillnet gear is unknown, NMFS has documented entanglements of right whales in gillnets and vertical lines. Therefore, NMFS cannot verify that gillnets fished in a low-rise fashion (i.e., sink gillnet) are less risky than other gillnets or gear with vertical lines in the core calving area. Therefore, fishing with low-rise gillnets in the Southeast U.S. Restricted Area North does not meet the bases in 50 CFR 229.32(g)(2) under which exemptions to a full, permanent closure of the restricted area are allowable.

Comment 12: Comments were received regarding the proposed changes to the boundaries of the Southeast U.S. Restricted Area. Several commenters supported expanding the restricted area to include waters off South Carolina, and several other commenters requested further expansion. Two commenters supported a boundary of 40 nm (74.08 km) off the coast of South Carolina, with one commenter citing habitat analysis research that indicates potential right whale habitat extends in excess of 35 nm (64.82 km) from the South Carolina shoreline. Two other commenters advocated expanding the entire Southeast U.S. Restricted Area to 200 nm (370.4 km) (the outer limit of the U.S. Exclusive Economic Zone (EEZ)), with one commenter citing low survey effort in offshore waters and uncertainty about use of these waters by whales, and reasoning that extending the geographical boundary would have no significant economic impact and would prevent development of new fisheries in that area.

Another commenter opposed the expansion of the restricted area, stating that the expansion is not based on credible science. The commenter stated that NMFS based its decision on aerial surveys conducted from 2001-2005, with no entanglements or strandings to indicate there is a problem in this area, a single observation of a right whale mother/calf pair in the 2004-2005 calving season, and a single year of acoustic monitoring. The commenter requested that more substantial and robust scientific evidence justifying the expansion be presented.

Response: The decision to expand the Southeast U.S. Restricted Area to include waters off South Carolina is based on several factors, which are described in the proposed rule (71 FR 66482, November 15, 2006) and EA. These factors include aerial and acoustic monitoring data that show the consistent occurrence of right whales in waters off South Carolina throughout the winter months (McLellan et al. , 2001; Glass et al. , 2005; Clark 2006).

During relatively limited aerial survey effort from 2001-2005, NMFS contractors documented numerous sightings of right whales off South Carolina during the calving season. NMFS consulted aerial survey data collected off South Carolina during the 2005/2006 and 2006/2007 calving season to determine if right whales were continuing to use that area. At least 25 sightings of one or more right whales, including mother/calf pairs, were observed off South Carolina during each of those calving seasons (Glass and Taylor 2006; and Wildlife Trust, unpub. data). One mother/calf pair was observed off South Carolina multiple times but was not observed during that calving season in any other survey area. Thus, the best available information indicates South Carolina is used exclusively as a calving area by some right whales.

NMFS also relied on habitat models that demonstrate a strong relationship between the spatial distribution of calving right whales and specific environmental variables (i.e., water temperature and bathymetry). Environmental conditions strongly correlated with calving right whale distribution are typically found off South Carolina to distances of 35 nm (64.82 km) from shore during winter months. Thus, NMFS is expanding the Southeast U.S. Restricted Area to include waters 35 nm (64.82 km) off the coast of South Carolina to adequately protect right whales from the threat of entanglement in fishing gear during the calving season.

NMFS specifically solicited public comment on the decision to place the boundary at 35 nm (64.82 km) rather than 40 nm (74.08) off the coast of South Carolina. Although NMFS considered various factors, including Hain and Kenney's (2005) conclusion that uncertainty in predicting right whale occurrence is increased with distance from shoreline due to reduced search effort, we believe that scientific evidence does not support a 40 nm (74.08 km) boundary. Recent predictive modeling efforts show that the expected seasonal progression of temperature off South Carolina is such that the optimal water temperature/bathymetry correlates preferred by right whales, and peak predicted sighting rates, for calving right whales occurs throughout much of the spatial range in waters typically out to 50 km (27 nm) from shore (Garrison, 2007). However, habitat in the marine environment is best represented as a spatial gradient between the most suitable and least suitable environments, and there is no clear spatial boundary for the habitat and no boundary to the movement of right whales inside and outside of the optimal habitat. However, as habitat modeling in Garrison 2007 demonstrates, the water temperature bathymetry correlates preferred by calving right whales degrade from the optimal values of these variables with increasing distance from shore. Mean right whale calving density as a function of distance from shore predicted by the model is nearly zero at 35 nm (64.82 km) from shore. Therefore, NMFS has determined that a 35-nm (64.82-km) boundary provides a sufficient buffer from the 27-nm (50-km) distance predicted by the habitat model. NMFS is therefore maintaining the 35-nm (64.82-km) management boundary for waters off South Carolina.

NMFS is not expanding the seaward boundary of the restricted area to the edge of the EEZ. This final rule is specific to right whale protection from gillnet fishing activity in critical calving area. While right whale survey effort is low east of 80° W. long., the Gulf Stream apparently serves as a thermal boundary to the eastward movements of right whales in the Southeast U.S. (Keller et al. , 2006).

Comment 13: NMFS received several comments regarding the proposed changes to the restricted period. Two commenters recommended that the restricted period for the Southeast U.S. Restricted Area North be extended to November 1 through April 30 instead of the current period of November 15 to March 31 to adequately protect right whale mothers and calves in the calving area. One of these commenters stated that migration patterns of right whales are not well known, and appropriate closure periods will be determined more reliably as more is learned; however, the whales must occur in the northern area both earlier and later in the season than in the southern area, for the southward and northward migration. Another commenter proposed alternate dates for the restricted period for the right whale critical habitat area. This commenter requested that April 1 remain the ending date for the restricted period. More specifically, the commenter asked that the area south of the Georgia/Florida border open for the whiting fishery on April 1, and the area between the North Carolina/South Carolina border and the Georgia/Florida border remain closed through April 15, on the basis that this would allow right whales to exit the area on their northward migration route, and allow fishermen to salvage a two week fishing season (during the first portion of April) while water temperatures are favorable for a viable fishery.

Response: The ALWTRP regulations at 50 CFR 229.32(g)(2)(v) authorize the AA to revise the restricted period if NMFS determines that right whales are remaining longer than expected in a closed area or have left earlier than expected. In developing this final rule, NMFS considered whether right whales were remaining longer in or leaving earlier from the Southeast U.S. Restricted Area than previously expected, recognizing that a substantial amount of aerial survey data and opportunistic sightings of right whales have been collected since the ALWTRP regulations were originally promulgated in 1997. The November 15 through March 31 timeframe was established as the restricted period for the entire Southeast U.S. Restricted Area in the original ALWTRP regulations. More recent data indicate that right whales are rarely sighted south of 29° N. lat. in November or in April; however, right whales have been sighted throughout the area north of 29° N. lat. and extending north to the South Carolina/North Carolina border from mid-November through mid-April. Consequently, in accordance with 50 CFR 229.32(g)(2)(v), NMFS has determined that it is appropriate to modify the annual restricted period to include two restricted periods specific to the northern and southern zones of the Southeast U.S. Restricted Area: November 15 through April 15 north of 29° N. lat. and December 1 through March 31 south of 29° N. lat. This is consistent with NMFS' June 21, 2005, proposed rule to amend the ALWTRP(70 FR 35894). NMFS believes the dates are sufficiently protective of right whale mothers and calves during their southward and northward migration.

NMFS specifically re-evaluated available information in consideration of the alternate restricted period proposed by one commenter and described above, for the area south of the Georgia/Florida border. This information included habitat models and right whale sightings data from aerial surveys geographically stratified as north and south of the Georgia/Florida border. Habitat models predict right whales to be present south of the Georgia/Florida state boundary and as far south as Cape Canaveral through the end of March (Garrison 2007), indicating that whales would be migrating through the Southeast U.S. Restricted Area North during the first two weeks of April. This is confirmed by right whale sighting data from aerial surveys. NMFS reviewed effort-corrected right whale sighting records contained in the University of Rhode Island database for the area between 29° N. lat. and the Georgia/Florida border (30° 42.5′ N. lat.) for right whale sightings from April 1 to April 15. The mean number of sightings per unit of survey effort is zero for the area south of the Georgia/Florida border in the second half of April, but greater than zero during the first half of April, indicating that right whales are present in that area through mid-April. NMFS believes that allowing gillnet fishing in the area south of the Georgia/Florida border annually after March 31 would pose an unacceptable risk to right whales.

Comment 14: Comments were received requesting additional exemptions to the prohibition on gillnet fishing and possession during the restricted period. These exemptions include beach-based recreational gillnetting in South Carolina, scientific research using gillnets, and traversing through Little River Inlet with fish on board. One commenter stated that any additional exemptions should be minimized and granted only in areas where such activities will not take right whales. Others opposed any additional exemptions. Finally, some commenters not only opposed additional exemptions but supported increased restrictions of gillnets and other fishing gear types.

Response: NMFS reiterates that this final rule implements and amends the ALWTRP regulations under the MMPA and the ESA and applies only to certain commercial fisheries that interact with large whales. This final rule does not apply to recreational fishing or non-commercial fishing for scientific research if no sale or barter is involved. While NMFS has the statutory authority to issue protective regulations for right whale impacts caused by activities other than commercial fisheries, that is beyond the scope of this action which was triggered by existing regulatory requirements in 50 CFR 229.32(g)(1).

Recreational and research gillnetting are not exempt from the take prohibitions under either the ESA or MMPA, and would need applicable authorizations if right whale takes were anticipated. South Carolina Department of Natural Resources permits a licensed recreational surf gillnet fishery that currently includes 212 participants operating mainly along the state's northern coast, and states they believe the characteristics of the fishery make the likelihood of interaction with large whales extremely low. Nets are restricted to no longer than 100 feet (30.48 m) and are used in unrestricted areas of the Atlantic Ocean, typically in water depths less than 8 feet (2.44 m). Fishermen are required to remain within 500 feet (152.4 m) or “hailing distance” of their nets at all times. Given the bathymetry off South Carolina's Atlantic beaches, gillnet gear is unlikely to extend into depths where right whales would normally occur.

NMFS continually works with state fishery management agencies in the southeast U.S. to develop conditions for research permits for the safe conduct of research activities that avoid potential impacts to right whales. These conditions may include limits on net length, number of nets, soak time, tending requirements, observer requirements, disentanglement training, breakaway panels, and endline modifications. To date, fishing effort has been very low for scientific research gillnetting.

NMFS agrees that it is reasonable to allow gillnet vessels to transit in and out of the Little River Inlet and is modifying the restricted area accordingly in this final rule. NMFS has moved the boundary of the restricted area southward to exclude the Little River Inlet from the Southeast U.S. Restricted Area. This modification will allow fishermen who participate in a legal commercial gillnet fishery off the southeastern coast of North Carolina to transit through Little River Inlet on the South Carolina/North Carolina border with gillnets and fish onboard. This measure alleviates safety concerns associated with fishermen in small vessels (typically less than 24 feet (7.3 m)) being required to use the closest navigable inlet beyond the restricted area, Shallotte Inlet, which is approximately 10 nm (18.52 km) away and can become unsafe in certain weather conditions. The modification poses no additional risk to right whales because the change in area is very small and gillnetting will remain prohibited in South Carolina state waters surrounding the inlet.

Comment 15: Several commenters stated they support the gillnet closure in the Southeast U.S., but believe that additional measures should be taken to protect right whales in other areas, including the North Pacific Ocean, Stellwagen Bank National Marine Sanctuary, other National Marine Sanctuaries, and Cape Cod Bay. Comments were also received requesting protections for right whales in areas outside of U.S. jurisdiction.

Response: The purpose of this final rule is to implement existing ALWTRP regulations at 50 CFR 229.32(g)(1) and (2), with associated revisions to 50 CFR 229.32(f), in response to the January 22, 2006, right whale calf mortality. The regulations only cover the Southeast U.S. calving area; therefore, measures addressing other geographical areas are outside the scope of this rulemaking.

Based on comments received, NMFS has changed the final rule from the proposed rule to exclude the Little River entrance, South Carolina, from the expanded Southeast U.S. Restricted Area. Coordinates contained in the table in 50 CFR 229.32(f)(1)(i) have been revised to reflect this change. Figure 1 illustrates the Southeast U.S. Restricted Area as modified by this final rule. Furthermore, paragraph 229.32(f)(3) that addresses observer requirements in the Southeast U.S. Observer Area, is modified to eliminate references to observer requirements for the Southeast U.S. Restricted Area North. Since this final rule eliminates gillnetting in the Southeast U.S. Restricted Area North, modifying this paragraph as specified will avoid confusion.