Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2006-08-15.xml --- 71 157 Tuesday, August 15, 2006 Contents Agency Agency for Healthcare Research and Quality NOTICES Meetings: Citizens’ Health Care Working Group, 46914 06-6930 Agriculture Agriculture Department See Food Safety and Inspection Service See Rural Utilities Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 46889 E6-13360 Centers Centers for Disease Control and Prevention NOTICES Vessel sanitation program:

Cruise ship sanitation inspections; fees, 46914-46915 E6-13336 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 46915-46917 06-6923 06-6924 Organization, functions, and authority delegations: Family Assistance Office, Director, 46917 E6-13332 Head Start Office, Director, 46917 E6-13333 Coast Guard Coast Guard RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.:

Broad Sound, Revere, MA, 46858-46860 E6-13397 Regattas and marine parades: Taste of Italy Fireworks, 46858 E6-13311 NOTICES Committees; establishment, renewal, termination, etc.: National Offshore Safety Advisory Committee, 46918-46919 E6-13310 Commerce Commerce Department See National Oceanic and Atmospheric Administration See Technology Administration Community Community Development Financial Institutions Fund NOTICES Reports and guidance documents; availability, etc.: Transaction level report data and allocation tracking system data provided by New Markets Tax Credit Program allocatees, 46977-46978 E6-13321 Customs Customs and Border Protection Bureau NOTICES Committees; establishment, renewal, termination, etc.:

Commercial Operations of Customs and Border Protection and Related Functions Departmental Advisory Committee, 46919 E6-13320 Defense Defense Department See Navy Department NOTICES Meetings: Uniform Formulary Beneficiary Advisory Panel, 46895 06-6906 Privacy Act; systems of records, 46895-46897 06-6909 Drug Drug Enforcement Administration NOTICES *Applications, hearings, determinations, etc.:* Dade Behring Inc., E6-13325 46921 E6-13327 Hospira, Inc., 46921 E6-13328 Penick Corp., 46922 E6-13329 Rhodes Technologies, 46922 E6-13326 Employment Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-13395 46924-46925 E6-13396 EPA Environmental Protection Agency RULES Air quality implementation plans; approval and promulgation; various States:

Missouri, 46860-46864 E6-13347 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: Michigan, 46879-46883 E6-13345 NOTICES Confidential business information and data transfer, 46900-46901 E6-13348 Grants and cooperative agreements; availability, etc.: Targeted Watersheds Program, 46901-46911 06-6898 Pesticide, food, and feed additive petitions: Syngenta Crop Protection, Inc., 46911-46912 E6-13315 FAA Federal Aviation Administration RULES Commercial space transportation:

Safety approvals, 46847-46856 E6-13313 NOTICES Environmental statements; record of decision: Charlotte Douglas International Airport, NC, 46958 06-6864 Federal Highway Federal Highway Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 46958-46959 E6-13394 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 46912 E6-13324 Meetings; Sunshine Act, 46912 06-6960 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings;

Sunshine Act, 46912 06-6940 FTC Federal Trade Commission PROPOSED RULES Trade regulation rules: Business opportunity rule; fraud and unfair or deceptive practices prevention, 46878 E6-13398 Federal Transit Federal Transit Administration NOTICES Grants and cooperative agreements; availability, etc.: Public Transportation on Indian Reservations Program and Tribal Transit Program, 46959-46973 06-6911 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service RULES Bonds and notes;

U.S. Treasury: Taxpayer identification numbers; inscription requirement eliminated, 46856-46858 E6-13301 Fish Fish and Wildlife Service RULES Endangered and threatened species: Critical habitat designations— Northern sea otter, 46864-46870 E6-13322 PROPOSED RULES Endangered and threatened species: Critical habitat designations: Hawaiian picture-wing flies, 46994-47054 06-6840 NOTICES Endangered and threatened species: Incidental take permits— El Paso County, CO; Preble's meadow jumping mouse, 46919 E6-13340 Meetings:

Klamath Fishery Management Council, 46919-46920 E6-13339 Food Food Safety and Inspection Service NOTICES Meetings: Codex Alimentarius Commission— Fish and Fishery Products Codex Committee, 46889-46891 E6-13361 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Children and Families Administration NOTICES Federal claims; interest rates on overdue debts, 46912-46913 06-6917 Meetings: American Health Information Community, 06-6916 06-6918 46913 06-6919 Bioethics, President's Council, 46913-46914 E6-13350 Homeland Homeland Security Department See Coast Guard See Customs and Border Protection Bureau NOTICES United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT):

Biometric screening of arriving aliens; additional ports of entry, 46917-46918 E6-13299 Housing Housing and Urban Development Department PROPOSED RULES Freedom of Information Act; implementation: Testimony and production of information by HUD employees, 46986-46991 06-6882 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See Reclamation Bureau Justice Justice Department See Drug Enforcement Administration See Justice Programs Office Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 46922-46923 E6-13354 Labor Labor Department See Employment Standards Administration See Labor Statistics Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 46923 E6-13351 MISSING FOR:

Labor Statistics Bureau Labor Statistics Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 46925-46926 E6-13349 Land Land Management Bureau PROPOSED RULES Minerals Management: Geothermal resource leasing and unit agreements Meeting, 46879 06-6888 NOTICES Survey plat filings: Maine; correction, 46920 E6-13337 Maritime Maritime Administration PROPOSED RULES Coastwise-qualified launch barges; availability determination, 46887-46888 E6-13391 Minerals Minerals Management Service PROPOSED RULES Royalty management:

Geothermal resources Meeting, 46879 06-6888 NASA National Aeronautics and Space Administration NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive: ASE Optics, Inc., 46926 E6-13308 National Archives National Archives and Records Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 46926 E6-13341 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle safety standards; exemption petitions, etc.:

Morgan Motor Co. Ltd., 46974-46976 E6-13314 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Northeastern United States fisheries— Northeast multispecies, 46871-46877 06-6932 Summer flounder, 46871 06-6928 NOTICES Meetings: Western Pacific Fishery Management Council, 46892-46893 E6-13307 Reports and guidance documents; availability, etc.: Hydrographic services; contracting policy, 46893-46894 06-6929 Navy Navy Department NOTICES Privacy Act; systems of records, 46897-46900 06-6907 06-6908 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.:

Dominion Nuclear North Anna, LLC, 46927 E6-13331 Omaha Public Power District, 46927-46928 E6-13330 Meetings; Sunshine Act, 46928-46929 06-6939 Operating licenses, amendments; no significant hazards considerations; biweekly notices, 46929-46946 06-6921 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Hazardous materials transportation: Registration and Fee Assessment Program, 46884-46887 E6-13312 Public Public Debt Bureau See Fiscal Service Reclamation Reclamation Bureau NOTICES Meetings:

Glen Canyon Dam Adaptive Management Work Group, 46920 E6-13338 Managing for Excellence Project, 46920-46921 06-6931 RUS Rural Utilities Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 46891-46892 E6-13362 06-6938 SEC Securities and Exchange Commission RULES Securities, etc.: Sarbanes-Oxley Act of 2002; implementation— Exchange Act periodic reports; inclusion of management's report on internal control over financial reporting and certification of disclosure, 47056-47059 E6-13289 PROPOSED RULES Financial reporting matters:

Periodic reports of non-accelerated filers and newly public companies, 47060-47071 E6-13277 NOTICES Self-regulatory organizations; proposed rule changes: International Securities Exchange, Inc., 46946-46952 E6-13334 E6-13335 NASDAQ Stock Market LLC, 46952-46957 E6-13316 E6-13317 E6-13319 Social Social Security Administration PROPOSED RULES Social security benefits: Federal old age, survivors, and disability insurance— Immune system disorders evaluation; revised medical criteria; correction, 46983 C6-6655 State State Department NOTICES Culturally significant objects imported for exhibition:

Biedermeier: The Invention of Simplicity, 46957 E6-13353 Venedig: at the mouth of the Grand Canal and Venice: The Grand Canal, 46957-46958 E6-13352 Surface Surface Transportation Board NOTICES Railroad services abandonment: Norfolk Southern Railway Co., 46976 E6-13244 Technology Technology Administration NOTICES Senior Executive Service Performance Review Boards; membership, 46894-46895 E6-13356 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration See Maritime Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board Treasury Treasury Department See Community Development Financial Institutions Fund See Fiscal Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 46977 E6-13309 MISSING FOR:

U.S.-China Economic and Security Review Commission U.S.-China Economic and Security Review Commission NOTICES Hearings, 46978-46979 E6-13303 E6-13304 Veterans Veterans Affairs Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 46979-46982 E6-13291 E6-13296 E6-13297 Separate Parts In This Issue Part II Housing and Urban Development Department, 46986-46991 06-6882 Part III Interior Department, Fish and Wildlife Service, 46994-47054 06-6840 Part IV Securities and Exchange Commission, E6-13277 47056-47071 E6-13289 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 71 157 Tuesday, August 15, 2006 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 413 and 414 [Docket No.: FAA-FAA-2005-21332; Amendment Nos. 413-6 and 414-1] RIN 2120-AI50 Safety Approvals AGENCY:

Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action amends commercial space transportation regulations by adding procedures for obtaining a safety approval for a safety element. Also, this action adds procedures for including a safety approval in a license application. Once the FAA issues a safety approval, the holder could offer the approved safety element to prospective launch and reentry operators for use within a defined and proven envelope.

Those operators would not need added FAA approval of that portion of their license application. The decision to apply for a safety approval is voluntary. The intent of this action is to facilitate the launch and reentry license application and approval processes. DATES: This amendment becomes effective September 14, 2006. FOR FURTHER INFORMATION CONTACT: For questions about the safety approval process, you may contact either of the following persons: • Charles P. Brinkman, Licensing and Safety Division (AST-200), FAA, Associate Administrator for Commercial Space Transportation, Room 331, 800 Independence Avenue, SW., Washington, DC 20591; telephone

(202)267-7715; or • Gary Michel, Office of the Chief Counsel (AGC-200), FAA, Room 915, 800 Independence Avenue, SW., Washington, DC 20591; telephone

(202)267-3148. For questions about technical standards, you may contact Jim Kabbara, Systems Engineering and Training Division (AST-300), FAA, Associate Administrator for Commercial Space Transportation, Room 331, 800 Independence Avenue, SW., Washington, DC 20591; telephone

(202)267-8379. SUPPLEMENTARY INFORMATION: Availability of Rulemaking Documents You can get an electronic copy using the Internet by:

(1)Searching the Department of Transportation's electronic Docket Management System

(DMS)Web page ( *http://dms.dot.gov/search* );

(2)Visiting the FAA's Regulations and Policies Web page at *http://www.faa.gov/regulations_policies/* ; or

(3)Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html* . You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling

(202)267-9680. Make sure to identify the amendment number or docket number of this rulemaking. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted for an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov* . Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question about this document, you may contact the local FAA official, or the person listed under FOR FURTHER INFORMATION CONTACT . You can find out more about SBREFA on the Internet at *http://www.faa.gov/regulations_policies/rulemaking/sbre_act/* . Authority for This Rulemaking The Commercial Space Launch Act of 1984, as codified and amended at 49 U.S.C. Subtitle IX-Commercial Space Transportation, ch. 701, Commercial Space Launch Activities, 49 U.S.C. 70101-70121 (the Act), authorizes the Department of Transportation and the FAA, through delegations, to oversee, license, and regulate commercial launch and reentry activities and the operation of launch and reentry sites as carried out by United States citizens or within the United States. 1 The Act directs the FAA to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States. 2 The FAA is also responsible for encouraging, facilitating, and promoting commercial space launches by the private sector. 3 1 49 U.S.C. 70104, 70105. 2 49 U.S.C. 70105. 3 49 U.S.C. 70103. Authority for this particular rulemaking is derived from section 70105(a)(2) of the Act, which states the Secretary may establish procedures for safety approval of launch vehicles, reentry vehicles, safety systems, processes, services, or personnel for use in conducting licensed commercial space launch or reentry activities. 4 The 2004 amendments to the Act provided details regarding safety approvals for personnel to include explicit approval procedures for the purpose of protecting the health and safety of crews and space flight participants. 5 4 See Commercial Space Act of 1998, Public Law 105-303. 5 See Commercial Space Launch Amendments Act of 2004, Public Law 108-492. Background Under the authority derived from the Act, on June 1, 2005, the FAA published the notice of proposed rulemaking (NPRM), “Safety Approvals; Proposed Rule” (70 FR 32192). This final rule adopts the provisions in that NPRM with some changes, which we describe later in this preamble. It also responds to the comments to that proposed rule. The nature of the commercial space transportation industry makes safety approvals attractive to prospective launch or reentry license 6 applicants, launch and reentry vehicle operators, and other industry representatives. Different operators often use major components, parts, or services that could potentially qualify for a safety approval on different launch vehicles. Personnel involved in operational safety support such as telemetry, tracking, and range safety may support multiple launch or reentry operators and could also qualify for a safety approval. 6 Commercial Space Launch Amendments Act of 2004 (70105a(i)(4)) states “the issuance of a permit shall be considered licensing.” Therefore, when used in this regulation, the term “license” means any license or permit the FAA may issue under 14 CFR chapter III. Historically, the launch operator has borne the monetary risk of proposing a new system, process, or service. Many launch operators have not thought the benefits worth the cost to prove the safety of a new safety element 7 through the licensing process because of the small number of launches. With the safety approval process in place, the risk of approval is transferred to the prospective safety approval applicant (i.e., the provider of the approved safety element). This optional process opens the door to new providers that may want to offer these safety elements for use in launch and reentry activities. The safety approval allows for the potential use of an approved safety element on more than one launch or reentry vehicle. Therefore, safety approvals have the potential to make the industry more willing to adopt innovative systems and processes because the cost of obtaining the approval would be shared, rather than borne by a single launch operator. 7 For purposes of 14 CFR part 414, a safety element is any one of the following: launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof; or qualified and trained personnel, performing a process or function related to license launch activities or vehicles. This rule may benefit the commercial space industry and the FAA by streamlining the processes for reviewing and issuing launch and reentry licenses. It will allow eligible persons to apply for a safety approval for an eligible safety element that can be used as part of prospective launch or reentry activities. A holder of a safety approval will be able to offer the approved safety element to prospective launch or reentry operators. Operators may include the approved element in their part 413 licensing application with minimal added documentation. The FAA may benefit from safety approvals because a portion of the documentation and analysis necessary to make a licensing determination on an application that includes such approvals will already have been done as part of the safety approval process. General Discussion of Rule This regulation amends part 413 to incorporate procedures for including a safety approval in an application for a launch or reentry activity. It also establishes a new part 414, which includes the requirements and procedures for voluntarily obtaining a safety approval for the following safety elements: a launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof, or qualified and trained personnel. This rule will enable launch and reentry vehicle operators to use an approved safety element within the scope specified in the safety approval without having to go through a re-examination of the element's fitness and suitability for a particular launch or reentry proposal. The approval allows these operators to rely on an approved element in constructing a launch vehicle or in conducting a safe launch. Use of a safety element for which a safety approval has been issued is not required as part of the part 413 application process. The safety approval, separate from any license, does not confer any authority to conduct activities for which a license is required. The FAA will evaluate the planned use of a safety approval for a proposed launch or reentry activity to ensure that use of the safety approval does not exceed its approved scope. Where appropriate, the FAA will coordinate its review of applications for safety approvals with other government agencies and especially with the operators of Federal launch ranges. Currently, the FAA works closely with the U.S. Air Force because most FAA-licensed launches have occurred at ranges operated by the U.S. Air Force. However, other Federal agencies may have an interest in a safety element under consideration for a safety approval. The FAA expects to consult with these agencies to minimize the possibility of a discrepancy between its evaluation and any later evaluation by another Federal agency. Discussion of Comments Three commenters provided multiple comments to the NPRM—Mr. Hugh Q. Cook, commenting as a private citizen, Lockheed Martin Corporation and International Launch Services (LMC/ILS), and Eric Miller of Central Missouri State University. Each commenter expressed strong support for the rule and each made recommendations for improvements. Most of the comments were from Mr. Cook. Safety Approval Definition Mr. Cook suggested rewriting the definition of “safety approval” to remove “circular reasoning.” Also, he said the FAA's emphasis in the preamble discussion that an approval is not a certification is an unnecessary distinction. This is particularly true, he said, given the U.S. space launch industry does not operate under a certification regime; and the fundamentals of licensing versus certification places responsibility for safe conduct of operations on the licensee. The FAA agrees with Mr. Cook that the safety approval definition as written in the proposed rule could be clearer, so we revised the final rule version, accordingly. However, we do not agree that explaining the distinction between an approval and a certification is unnecessary. Although Mr. Cook is correct that the U.S. space industry does not currently operate under a certification regime, new entrants, particularly those proposing reusable launch vehicles that would operate more like aircraft, are very likely to be familiar with the aircraft certification process. Therefore, we believe it is important to point out that a safety approval is not the equivalent of a certification under a design standard. By making this distinction, the FAA seeks to avoid any misunderstanding that an approval means certification. Mr. Cook is also correct that the FAA's licensing regime places responsibility for safe conduct of operations on the licensee. However, we do not believe the distinction between an approval and a certification in any way conflicts with this position. The distinction simply reaffirms that a safety approval is limited to use within a defined parameter. Safety Approvals Are Voluntary Mr. Eric Miller commented that the rule would be more effective in ensuring public safety if the FAA makes the use of safety approvals mandatory for all persons conducting space flights. We do not agree that it is necessary to make the use of safety approvals mandatory to increase the safety of space launches. This regulation will make safety approvals available for use by prospective launch and reentry operators. To conduct a launch or reentry activity, these operators must apply for a license under 14 CFR chapter III. To obtain a license under this chapter, applicants must demonstrate that the prospective activities will not endanger public health and safety and safety of property. Eligibility Mr. Cook said the statement in the NPRM regulatory text that “anyone” may apply for a safety approval is misleading and sets a “frivolous tone.” He recommended that we identify persons likely to benefit from the regulation. We appreciate Mr. Cook's concern. The intent of the NPRM language under § 414.9 was to convey that the restrictions that exist for licensing do not apply to safety approval applicants. We placed the specific eligibility requirements, including the persons who may be eligible to apply for a safety approval, in proposed § 414.15 (How will the FAA determine whether something is eligible and suitable for a safety approval?). We agree that placing these requirements in separate sections may be misleading. Therefore, in the final rule, we placed them in one section. 8 In addition, we removed the statement that “anyone may apply for a safety approval.” 8 § 414.7 (Eligibility). The Application Process Mr. Cook said he found the statement that the FAA will incorporate prior findings from a past licensing determination in issuing a new license “troubling” because it implies that there is a different process and a higher standard for a new applicant to obtain a safety approval compared to a current licensee. Also, he believes this statement implies the FAA will not do a thorough review of previously approved parts, materials, and services, but will simply rubber-stamp them as a part of the licensing process. The FAA did not intend to convey the inferences Mr. Cook has drawn. First, the process or standard for assessing and issuing a safety approval is the same for a new applicant as for an existing licensee. The statement that the FAA incorporates prior findings from a past licensing determination recognizes current FAA practice. This statement in no way means the FAA will automatically issue an approval for a safety element because the element was previously approved as part of a licensing process. As required by § 414.11(c)(1) of this final rule, all applicants must include in their application a Statement of Conformance letter. This letter must describe the specific criteria applicants used to demonstrate the adequacy of the safety element for which they seek a safety approval. It must also show that the safety element complies with the specific criteria. The FAA will review each application according to the procedures in part 414, subpart C of this final rule. Mr. Cook said the FAA should not have commented on the “comparative merits of the safety approval procedure vis-a-vis the existing licensing procedure” as the merits of the two should speak for themselves. We agree in part with Mr. Cook's comment that our discussion about the applicant's responsibility for determining the value of seeking a safety approval is not necessary. Perhaps we stated the obvious since applying for a safety approval is strictly voluntary so it is unlikely anyone would pursue one if it were not cost beneficial to do so. However, we believe that determining the value of a safety approval independent of the licensing process is an important enough point to make as part of the discussion of the application process. Mr. Cook suggested the FAA allow a corporation to authorize someone other than an officer to certify a safety approval application. The FAA agrees with Mr. Cook's comment. For license applications, the FAA has found that the individuals who sign and certify license applications are not typically officers of the corporation. Therefore, we added a similar provision in this final rule under § 414.11(d)(1) to allow an individual authorized to act for the corporation to sign and certify the accuracy of a safety approval application. In addition, in another rulemaking action, we proposed a similar change to § 413.7(c)(1) 9 to also allow an individual authorized to act for the corporation to sign and certify license applications. 9 “Experimental Permits for Reusable Suborbital Rockets” Notice of proposed rulemaking (70 FR 16251, March 31, 2006). Timeframe for Application Review Mr. Cook suggested a goal of 30 days for the FAA to review and make a determination on a substantially complete application. The FAA disagrees with Mr. Cook's comment that there should be a 30-day review period for safety approval applications. Until industry and the FAA gain experience with filing and processing these applications, it would not be prudent for us to consider setting a specific time frame for our review. Also, we do not believe that having a set review period for all applications without first considering the level of complexity for each is the most practical approach. Instead, the FAA and the applicant will discuss what is a reasonable time frame to complete review of a specific application during the pre-application consultation. The Act gives the FAA up to 180 days to make a licensing determination after receipt of an application. We believe making a safety approval determination could take this much time. Technical Criteria for Issuing a Safety Approval The rule includes a hierarchy of technical criteria for reviewing a safety approval. One such criterion in proposed § 414.27(b) is “government-developed or adopted standards.” Mr. Cook suggested revising this section to read, “Government-developed or adopted standards, including approved tailoring applicable to a specific application for safety approval.” He also suggested we define “approved tailoring” to include the necessity of publishing the details of the tailoring in an accessible form. We appreciate Mr. Cook's suggestions; however, we do not believe a change to the rule is necessary. As written, the rule lists specific technical criteria 10 the FAA will use to make a safety approval determination. The criteria include government-developed or adopted standards and applicant developed standards, which are variations of tailored standards. Also, the rule requires applicants to allow the FAA to make their proposed safety approval criteria available to the public as part of the approval process. 10 See 414.27(d) in the proposed rule and 414.19(a) in the final rule. Lockheed Martin Corporation and International Launch Services (LMC/ILS), commenting together, had a recommendation related to the statement in proposed § 414.27 that reads, “You must agree to allow the FAA to make proposed safety approval criteria available to the public as part of the approval process.” LMC/ILS asserted that this statement would require the applicant to waive the customary protections associated with proprietary or otherwise sensitive information. They recommended revising the rule language to allow individual determinations on whether the FAA will make proposed safety approval criteria public and allow applicants to withdraw their application to avoid public release of their approval criteria. The FAA does not agree with LMC/ILS's assertion. In the section-by-section discussion under proposed § 414.19 (How can I assure confidentiality of the information I submit on a safety approval application?), the FAA states, “Do not propose standards that you consider secret, proprietary, and confidential.” In the regulatory text itself, the FAA states, “If the proposed criteria for evaluating a safety approval is secret, as classified by the U.S. Government, or the applicant wants it to remain proprietary or confidential, it cannot be used as a basis for the issuance of a safety approval.” 11 11 See § 414.19(e) of the NPRM and § 414.13 (Confidentiality) of this final rule. The FAA intends, as part of our on-going dialogue with the applicant, to discuss the criteria that would appear in the public record. Because the goal would be for the criteria to be performance-based, to the greatest extent possible, the FAA does not believe that safety approval applicants would need to waive protections in order to obtain a safety approval. The FAA believes it is essential to make public the basis for issuance of a safety approval. We also believe the right of the applicant to withdraw an application is implicit. However, stating this right in the regulations will avoid any confusion. Hence, in the final rule under § 414.15(d), we added the right of the applicant to withdraw the application before we make a final determination. Terms and Conditions of a Safety Approval Mr. Cook commented that the FAA introduced an important new term in the preamble discussion, “scope of the demonstration.” He noted that in the regulatory text, we modified this term to “scope of the safety demonstration.” Further, he said in other rulemakings the FAA established an equivalent definition of “demonstration” to the aerospace industry's definition of “verification.” He requested that the FAA define what we mean by the term “scope of the (safety) demonstration.” The FAA believes the regulation as written makes clear what is meant by “scope of demonstration.” In the NPRM preamble discussion under the heading “How do I prepare an application?”, we explain that the scope of the safety approval would be based on the scope of the safety demonstration. The demonstration might consist of analysis, testing, actual use, observation, physical inspection, simulation, historical data, or other means of verifying performance. Different means of demonstration might be used for a safety approval of a design of a system than for a safety approval for personnel to perform a particular safety task. In the NPRM preamble discussion, we give a specific example of what we mean by “the scope of the demonstration.” The example reads as follows: for a radar tracking system integral to range safety, you might demonstrate the ability of the radar to track launch vehicles as a function of radar cross section, vehicle velocity, acceleration, and trajectory along with notable ambient effects, such as weather conditions. The demonstration and, therefore, the scope of the applicability of the safety approval would not be specific to a particular vehicle. In another comment Mr. Cook said the statutory authority would not agree with the FAA's statement that a safety approval has no meaning independent of its use in facilitating the FAA licensing process. He said he believes the safety approval rulemaking “has profound meaning in the context of 'facilitate and promote'.” We do not agree with Mr. Cook that the statutory authority intends for a safety approval to have meaning independent of the licensing process. Section 70105(a)(2) of the Act states “* * * the Secretary may establish procedures for safety approvals of launch vehicles, reentry vehicles, * * * that may be used in conducting licensed commercial space launch or reentry activities.” In other words, the intent of the statute is to make safety approvals available to facilitate the licensing process, not as an independent service. We do agree, however, that the Act encourages (i.e., facilitates and promotes) private sector launches, reentries, and associated services, which includes safety approvals. Modification, Suspension, Revocation of a Safety Approval In reference to proposed § 414.39, Mr. Cook raised the following two questions:

(1)Who is responsible for alerting a launch operator that is affected by the revocation of a safety approval?

(2)What is the effect on a launch license that is issued based on a licensing determination that relies on a revoked safety approval? In response to the first question, the FAA does not believe it is necessary to include in the regulations that the licensee will be notified if we modify, suspend, or revoke a safety approval. This final rule contains the procedures for inclusion of a safety approval in a license application. Therefore, the FAA will know which of our licensees is using which safety approval(s). As a result, we will be able to make any necessary notifications to the affected licensee. With regard to the second question, a revocation may or may not affect an existing license. In his comments on the regulatory text, Mr. Cook suggested licensees be afforded the opportunity to amend their license applications to demonstrate that the safety approval action taken under this section does not have a material effect on public safety or the safety of property. As we explained in the preamble to the proposed rule, the FAA would afford licensees such an opportunity unless an immediate threat to public health and safety or the safety of property requires more immediate action, including a license suspension. We do not believe the addition of regulatory text stating this adds any value. Because of the sporadic nature of launches, in many instances the FAA could work with the affected licensee to resolve any issues. However, as discussed in the section-by-section analysis in the proposed rule, if an immediate threat to public health and safety or safety of property presented itself as a result of an issue regarding a safety approval, the FAA might need to suspend a license to prevent a potentially dangerous launch or reentry. Changes to the NPRM We made substantial formatting changes to the regulatory text. Our intent is to further clarify the regulations and make them more concise, not change their intent. First, we changed the question and answer format of the section headings to regular headings that are more reflective of the section content. For example, § 414.1 in the NPRM is titled “What is the basis and scope of this rule?”. We changed this section heading to “Scope” in the final rule. Second, in some instances we moved text into different sections under more appropriate headings and combined text from multiple sections under a single heading. For example, we moved text from proposed § 414.15 (How will the FAA determine whether something is eligible and suitable for a safety approval?) to two separate sections of the final rule. That is, we placed the specific requirements in proposed § 414.15 related to determining eligibility under “Eligibility” (§ 414.7) in the final rule. However, we moved the requirements in proposed § 414.15(e) about the criteria for the FAA's evaluation of a safety approval application to § 414.19 (Technical criteria for reviewing a safety approval application) in the final rule. In the NPRM when we refer to safety elements that are eligible for a safety approval, we list each of the elements (launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof, or qualified and trained personnel). Since we recognize that these elements are the only ones eligible for a safety approval, in the final rule we define the term “safety element” to mean any one of these elements. 12 12 See § 414.3 (Definitions) in the final rule. Under proposed § 414.31 (How would a license applicant incorporate a safety approval into a launch or reentry license application?), we inadvertently placed some requirements related to part 413 applicants in part 414. While we state in proposed § 414.31 that these requirements apply to part 413 applicants, we should have amended part 413 to include these requirements. This final rule corrects this oversight by amending the license application procedures in § 413.7 to add paragraph (d). This new paragraph includes the same requirements for part 413 applicants that are in proposed § 414.31. In addition to these changes and as indicated under the “Discussion of Comments” heading, we made a few changes recommended by commenters. First, we added a provision that allows authorized individuals to sign and certify safety approval applications. Second, we added a provision, which states the applicant may withdraw the safety approval application before we make a final determination. Paperwork Reduction Act Information collection requirements associated with this final rule have been approved previously by the Office of Management and Budget

(OMB)under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and have been assigned OMB Control Numbers 2120-0608 and 2120-0643. These prior approvals are applicable because this final rule merely permits consideration of a portion of the activity covered by the cited documents. In other words, a part of the information required for FAA-licensed activity is collected for the safety approval and does not need to be collected again as part of the license application. International Compatibility In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization

(ICAO)Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, Regulatory Planning and Review, directs the FAA to assess both the costs and the benefits of a regulatory change. We are not allowed to propose or adopt a regulation unless we make a reasoned determination that the benefits of the intended regulation justify the costs. Our assessment of this rulemaking indicates that its economic impact is minimal because safety approvals under the rulemaking action are not mandatory so there would be no costs imposed on industry. The FAA anticipates that launch license applicants would only pursue a safety approval if they believe they can save money by using a safety approval. If not, they would continue to obtain approval through the licensing determination. The final rule might result in slight costs to the government, but more likely it will result in government cost savings. Because the costs and benefits of this action do not make it a “significant regulatory action” as defined in the Order, we have not prepared a “regulatory evaluation,” which is the written cost/benefit analysis ordinarily required for all rulemakings under the DOT Regulatory Policies and Procedures. We do not need to do a full evaluation where the economic impact of a rule is minimal. Economic Assessment, Regulatory Flexibility Determination, Trade Impact Assessment, and Unfunded Mandates Assessment Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, to be the basis of U.S. standards. Fourth, the Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with a base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposal does not warrant a full evaluation, this order permits a statement to that effect. The basis for the minimal impact must be included in the preamble, if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for that determination follows. The 1998 amendments to the Commercial Space Launch Act of 1984 added authority for establishing procedures for “safety approvals” of launch vehicles, reentry vehicles, safety systems, processes, services, or personnel that may be used in conducting licensed commercial space launch or reentry activities. (See Commercial Space Act of 1998, Pub. L. 105-303.) This rulemaking will establish those procedures. The rule will enable license applicants to use safety-approved elements for proposed launch or reentry activities without having to resubmit certain information. The existence of a safety approval could streamline the licensing process. The final rule defines the requirements for obtaining these voluntary safety approvals. A key element of the final rule is that the safety approvals are strictly elective. A safety approval will enable the U.S. commercial space transportation industry to select “approved” systems, processes, services, and personnel, possibly reducing the information required for a license application. Because safety approvals under the final rulemaking are not mandatory, the FAA anticipates that applicants will only pursue a safety approval if they believe the benefits outweigh the costs. The final rule does not impose any costs on the license applicant, because the applicant is free to continue to obtain approval through the licensing determination. There might even be cost savings to license applicants because the cost of using safety-approved elements could be less than the cost the licensee might incur in seeking approval directly through the licensing determination. This is because a safety approval could be used for multiple launch licenses without added FAA approval of that portion of the license application other than an evaluation of its intended use relative to the proposed activity. The final rule might result in additional cost to the Federal government. This might occur if a company obtains a safety approval from the FAA, but does not use it. In this case, the FAA will have spent the time for naught in issuing the safety approval. The FAA expects this to be unlikely, as companies will not seek to obtain safety approvals unless the likelihood of selling their approved product to a licensee is very high. On the other hand, the final rule might result in cost savings to the government. If the safety approval is used for several licenses, then the FAA could apply findings related to safety approvals to different license applicants that propose to use the approved element. In view of the possible minor additional cost to the Federal government and the anticipated benefits of the rule, the FAA has determined that this rule is cost-justified. Since seeking a safety approval and using it as a part of a launch or reentry activity is voluntary, the expected outcome will be a minimal impact with positive net benefits, and a regulatory evaluation was not prepared. The FAA has, therefore, determined this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980

(RFA)establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to consider flexible regulatory proposals, to explain the rationale for their actions, and to solicit comments. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The final rule does not impose costs on industry because it establishes a wholly voluntary process as an alternative to a part of the current licensing process. Therefore, as the FAA Administrator, I certify that this rulemaking action will not have a significant economic impact on a substantial number of small entities. International Trade Impact Assessment The Trade Agreements Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rule and has determined that since it will not impose standards on industry and because it establishes a wholly voluntary program, it will not create an unnecessary obstacle to the foreign commerce of the United States. Unfunded Mandates Assessment Title II of the Unfunded Mandate Reform Act of 1995 requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with a base year of 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million. This final rule does not contain such a mandate. Executive Order 13132, Federalism The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore will not have federalism implications. Environmental Analysis FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this final rulemaking action qualifies for the categorical exclusion identified in paragraph 308b and involves no extraordinary circumstances. Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. List of Subjects 14 CFR Part 413 Confidential business information, Space transportation and exploration. 14 CFR Part 414 Airspace, Aviation safety, Space transportation and exploration. The Amendments In consideration of the foregoing, the Federal Aviation Administration amends Chapter III of Title 14, Code of Federal Regulations, as follows: PART 413—LICENSE APPLICATION PROCEDURES 1. The authority citation for part 413 continues to read as follows: Authority: 49 U.S.C. 70101-70121. 1 2. Amend § 413.7 to add paragraph

(d)to read as follows: § 413.7 Application.

(d)*Safety approval.* If the applicant proposes to include a safety element for which the FAA issued a safety approval under part 414 in the proposed license activity, the applicant must—

(1)Identify the safety approval in the application and explain the proposed use of the approved safety element.

(2)Show that the proposed use of the approved safety element is consistent with the designated scope specified in the safety approval.

(3)Certify that the safety element will be used according to any terms and conditions of the issued safety approval. 3. Add part 414 to read as follows: PART 414—SAFETY APPROVALS Subpart A—General Sec. 414.1 Scope. 414.3 Definitions. 414.5 Applicability. 414.7 Eligibility. Subpart B—Application Procedures 414.9 Pre-application consultation. 414.11 Application. 414.13 Confidentially. 414.15 Processing the initial application. 414.17 Maintaining the continued accuracy of the initial application. Subpart C—Safety Approval Review and Issuance 414.19 Technical criteria for reviewing a safety approval application. 414.21 Terms and conditions for issuing a safety approval; duration of a safety approval. 414.23 Maintaining the continued accuracy of the safety approval application. 414.25 Safety approval records. 414.27 Safety approval renewal. 414.29 Safety approval transfer. 414.31 Monitoring compliance with the terms and conditions of a safety approval. 414.33 Modification, suspension, or revocation of a safety approval. 414.35 Public notification of the criteria by which a safety approval was issued. Subpart D—Appeal Procedures 414.37 Hearings in safety approval actions. 414.39 Submissions; oral presentations in safety approval actions. 414.41 Administrative law judge's recommended decision in safety approval actions. Authority: 49 U.S.C. 106(g), 40113, 44701. Subpart A—General § 414.1 Scope. This part establishes procedures for obtaining a safety approval and renewing and transferring an existing safety approval. Safety approvals issued under this part may be used to support the application review for one or more launch or reentry license requests under other parts of this chapter. § 414.3 Definitions. *Safety approval.* For purposes of this part, a safety approval is an FAA document containing the FAA determination that one or more of the safety elements listed in paragraphs

(1)and

(2)of this definition, when used or employed within a defined envelope, parameter, or situation, will not jeopardize public health and safety or safety of property. A safety approval may be issued independent of a license, and it does not confer any authority to conduct activities for which a license is required under 14 CFR Chapter III. A safety approval does not relieve its holder of the duty to comply with all applicable requirements of law or regulation that may apply to the holder's activities.

(1)Launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof; or

(2)Qualified and trained personnel, performing a process or function related to licensed launch activities or vehicles. *Safety Element.* For purposes of this part, a safety element is any one of the items or persons (personnel) listed in paragraphs

(1)and

(2)of the definition of “safety approval” in this section. § 414.5 Applicability. This part applies to an applicant that wants to obtain a safety approval for any of the safety elements defined under this part and to persons granted a safety approval under this part. Any person eligible under this part may apply to become the holder of a safety approval. § 414.7 Eligibility.

(a)There is no citizenship requirement to obtain a safety approval.

(b)You may be eligible for a safety approval if you are—

(1)A manufacturer or designer of a launch or reentry vehicle or component thereof;

(2)The designer or developer of a safety system or process; or

(3)Personnel who perform safety critical functions in conducting a licensed launch or reentry.

(c)A safety approval applicant must have sufficient knowledge and expertise to show that the design and operation of the safety element for which safety approval is sought qualify for a safety approval.

(d)Only the safety elements defined under this part are eligible for a safety approval. Subpart B—Application Procedures § 414.9 Pre-application consultation. The applicant must consult with the FAA before submitting an application. Unless the applicant or the FAA requests another form of consultation, consultation is oral discussion with the FAA about the application process and the potential issues relevant to the FAA's safety approval decision. § 414.11 Application.

(a)The application must be in writing, in English, and filed in duplicate with the Federal Aviation Administration, Associate Administrator for Commercial Space Transportation, 800 Independence Avenue, SW., Washington, DC 20591.

(b)The application must identify the following basic information:

(1)Name and address of the applicant.

(2)Name, address, and telephone number of any person to whom inquiries and correspondence should be directed.

(3)Safety element (i.e., launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof; or personnel) for which the applicant seeks a safety approval.

(c)The application must contain the following technical information:

(1)A Statement of Conformance letter, describing the specific criteria the applicant used to show the adequacy of the safety element for which a safety approval is sought, and showing how the safety element complies with the specific criteria.

(2)The specific operating limits for which the safety approval is sought.

(3)The following as applicable:

(i)Information and analyses required under this chapter that may be applicable to demonstrating safe performance of the safety element for which the safety approval is sought.

(ii)Engineering design and analyses that show the adequacy of the proposed safety element for its intended use, such that the use in a licensed launch or reentry will not jeopardize public health or safety or the safety of property.

(iii)Relevant manufacturing processes.

(iv)Test and evaluation procedures.

(v)Test results.

(vi)Maintenance procedures.

(vii)Personnel qualifications and training procedures.

(d)The application must be in English, legibly signed, dated, and certified as true, complete, and accurate by one of the following:

(1)For a corporation, an officer or other individual authorized to act for the corporation in licensing or safety approval matters.

(2)For a partnership or a sole proprietorship, a general partner or proprietor, respectively.

(3)For a joint venture, association, or other entity, an officer or other individual duly authorized to act for the joint venture, association, or other entity in licensing matters.

(e)Failure to comply with any of the requirements set forth in this section is sufficient basis for denial of a safety approval application. § 414.13 Confidentiality.

(a)To ensure confidentiality of data or information in the application, the applicant must—

(1)Send a written request with the application that trade secrets or proprietary commercial or financial data be treated as confidential, and include in the request the specific time frame confidential treatment is required.

(2)Mark data or information that require confidentiality with an identifying legend, such as “Proprietary Information,” “Proprietary Commercial Information,” “Trade Secret,” or “Confidential Treatment Requested.” Where this marking proves impracticable, attach a cover sheet that contains the identifying legend to the data or information for which confidential treatment is sought.

(b)If the applicant requests confidential treatment for previously submitted data or information, the FAA will honor that request to the extent practicable in case of any prior distribution of the data or information.

(c)Data or information for which confidential treatment is requested or data or information that qualifies for exemption under section 552(b)(4) of Title 5, U.S.C., will not be disclosed to the public unless the Associate Administrator determines that withholding the data or information is contrary to the public or national interest.

(d)If the proposed criteria for evaluating a safety approval is secret, as classified by the U.S. Government, or the applicant wants it to remain proprietary or confidential, it cannot be used as a basis for issuance of a safety approval. § 414.15 Processing the initial application.

(a)The FAA will initially screen an application to determine if the application is sufficiently complete to enable the FAA to initiate the reviews or evaluations required under this part.

(b)After completing the initial screening, the FAA will inform the applicant in writing of one of the following:

(1)The FAA accepts the application and will begin the reviews or evaluations required for a safety approval determination under this part.

(2)The FAA rejects the application because it is incomplete or indefinite making initiation of the reviews or evaluations required for a safety approval determination under this part inappropriate.

(c)The written notice will state the reason(s) for rejection and corrective actions necessary for the application to be accepted. The FAA may return a rejected application to the applicant or may hold it until the applicant provides more information.

(d)The applicant may withdraw, amend, or supplement an application anytime before the FAA makes a final determination on the safety approval application by making a written request to the Associate Administrator. If the applicant amends or supplements the initial application, the revised application must meet all the applicable requirements under this part. § 414.17 Maintaining the continued accuracy of the initial application. The applicant is responsible for the continuing accuracy and completeness of information provided to the FAA as part of the safety approval application. If at any time after submitting the application, circumstances occur that cause the information to no longer be accurate and complete in any material respect, the applicant must submit a written statement to the Associate Administrator explaining the circumstances and providing the new or corrected information. The revised application must meet all requirements under § 414.11. Subpart C—Safety Approval Review and Issuance § 414.19 Technical criteria for reviewing a safety approval application.

(a)The FAA will determine whether a safety element is eligible for and may be issued a safety approval. We will base our determination on performance-based criteria, against which we may assess the effect on public health and safety and on safety of property, in the following hierarchy:

(1)FAA or other appropriate Federal regulations.

(2)Government-developed or adopted standards.

(3)Industry consensus performance-based criteria or standard.

(4)Applicant-developed criteria. Applicant-developed criteria are performance standards customized by the manufacturer that intends to produce the system, system component, or part. The applicant-developed criteria must define—

(i)Design and minimum performance;

(ii)Quality assurance system requirements;

(iii)Production acceptance test specifications; and

(iv)Continued operational safety monitoring system characteristics.

(b)The applicant must allow the FAA to make its proposed safety approval criteria available to the public as part of the approval process. § 414.21 Terms and conditions for issuing a safety approval; duration of a safety approval.

(a)The FAA will issue a safety approval to an applicant that meets all the requirements under this part.

(b)The scope of the safety approval will be limited by the scope of the safety demonstration contained in the application on which the FAA based the decision to grant the safety approval.

(c)The FAA will determine specific terms and conditions of a safety approval individually, limiting the safety approval to the scope for which the safety-approved launch or reentry element was approved. The terms and conditions will include reporting requirements tailored to the individual safety approval.

(d)A safety approval is valid for five years and may be renewed.

(e)If the FAA denies the application, the applicant may correct any deficiency the FAA identified and request a reconsideration of the revised application. The applicant also has the right to appeal a denial as set forth in subpart D of this part. § 414.23 Maintaining the continued accuracy of the safety approval application.

(a)The holder of a safety approval must ensure the continued accuracy and completeness of representations contained in the safety approval application, on which the approval was issued, for the entire term of the safety approval.

(b)If any representation contained in the application that is material to public health and safety or safety of property ceases to be accurate and complete, the safety approval holder must prepare and submit a revised application according to § 414.11 under this part. The safety approval holder must point out any part of the safety approval or the associated application that would be changed or affected by a proposed modification. The FAA will review and make a determination on the revised application under the terms of this part.

(c)If the FAA approves the revised application, the FAA will provide written notice to the holder, stating the terms and conditions to which the approval is subject. § 414.25 Safety approval records. The holder of a safety approval must maintain all records necessary to verify that the holder's activities are consistent with the representations contained in the application for which the approval was issued for the duration of the safety approval plus one year. § 414.27 Safety approval renewal.

(a)*Eligibility.* A holder of a safety approval may apply to renew it by sending the FAA a written application at least 90 days before the expiration date of the approval.

(b)*Application.*

(1)A safety approval renewal application must meet all the requirements under § 414.11.

(2)The application may incorporate by reference information provided as part of the application for the expiring safety approval or any modification to that approval.

(3)Any proposed changes in the conduct of a safety element for which the FAA has issued a safety approval must be described and must include any added information necessary to support the fitness of the proposed changes to meet the criteria upon which the FAA evaluated the safety approval application.

(c)*Review of application.* The FAA conducts the reviews required under this part to determine whether the safety approval may be renewed. We may incorporate by reference any findings that are part of the record for the expiring safety approval.

(d)*Grant of safety approval renewal.* If the FAA makes a favorable safety approval determination, the FAA issues an order that amends the expiration date of the safety approval or issues a new safety approval. The FAA may impose added or revised terms and conditions necessary to protect public health and safety and the safety of property.

(e)*Written notice.* The FAA will provide written notice to the applicant of our determination on the safety approval renewal request.

(f)*Denial of a safety approval renewal.* If the FAA denies the renewal application, the applicant may correct any deficiency the FAA identified and request a reconsideration of the revised application. The applicant also has the right to appeal a denial as set forth in subpart D of this part. § 414.29 Safety approval transfer.

(a)Only the FAA may approve a transfer of a safety approval.

(b)Either the holder of a safety approval or the prospective transferee may request a safety approval transfer.

(c)Both the holder and prospective transferee must agree to the transfer.

(d)The person requesting the transfer must submit a safety approval application according to § 414.11, must meet the applicable requirements of this part, and may incorporate by reference relevant portions of the initial application.

(e)The FAA will approve a transfer of a safety approval only after all the approvals and determinations required under this chapter for a safety approval have been met. In conducting reviews and issuing approvals and determinations, the FAA may incorporate by reference any findings made part of the record to support the initial safety approval determination. The FAA may modify the terms and conditions of a safety approval to reflect any changes necessary because of a safety approval transfer.

(f)The FAA will provide written notice to the person requesting the safety approval transfer of our determination.

(g)If the FAA denies a transfer request, the applicant may correct any deficiency the FAA identified and request a reconsideration of the revised application. The applicant also has the right to appeal a denial as set forth in subpart D of this part. § 414.31 Monitoring compliance with the terms and conditions of a safety approval. Each holder of a safety approval must allow access by, and cooperate with, Federal officers or employees or other individuals authorized by the Associate Administrator to inspect manufacturing, production, testing, or assembly performed by a holder of a safety approval or its contractor. The FAA may also inspect a safety approval process or service, including training programs and personnel qualifications. § 414.33 Modification, suspension, or revocation of a safety approval.

(a)*The safety approval holder.* The safety approval holder may submit an application to the FAA to modify the terms and conditions of the holder's safety approval. The application must meet all the applicable requirements under this part. The FAA will review and make a determination on the application using the same procedures under this part applicable to an initial safety approval application. If the FAA denies the request to modify a safety approval, the holder may correct any deficiency the FAA identified and request reconsideration. The holder also has the right to appeal a denial as set forth in subpart D of this part.

(b)*The FAA.* If the FAA finds it is in the interest of public health and safety, safety of property, or if the safety approval holder fails to comply with any applicable requirements of this part, any terms and conditions of the safety approval, or any other applicable requirement, the FAA may—

(1)Modify the terms and conditions of the safety approval; or

(2)Suspend or revoke the safety approval.

(c)*Effective Date.* Unless otherwise stated by the FAA, any modification, suspension, or revocation of a safety approval under paragraph (b)—

(1)Takes effect immediately; and

(2)Continues in effect during any reconsideration or appeal of such action under this part.

(d)*Notification and Right to Appeal.* If the FAA determines it is necessary to modify, suspend, or revoke a safety approval, we will notify the safety approval holder in writing. If the holder disagrees with the FAA's determination, the holder may correct any deficiency the FAA identified and request a reconsideration of the determination. The applicant also has the right to appeal the determination as set forth in subpart D of this part. § 414.35 Public notification of the criteria by which a safety approval was issued. For each grant of a safety approval, the FAA will publish in the **Federal Register** a notice of the criteria that were used to evaluate the safety approval application, and a description of the criteria. Subpart D—Appeal Procedures § 414.37 Hearings in safety approval actions.

(a)The FAA will give the safety approval applicant or holder, as appropriate, written notice stating the reason for issuing a denial or for modifying, suspending, or revoking a safety approval under this part.

(b)A safety approval applicant or holder is entitled to a determination on the record after an opportunity for a hearing.

(c)An administrative law judge will be designated to preside over any hearing held under this part. § 414.39 Submissions; oral presentations in safety approval actions.

(a)Determinations in safety approval actions under this part will be made on the basis of written submissions unless the administrative law judge, on petition or on his or her own initiative, determines that an oral presentation is required.

(b)Submissions must include a detailed exposition of the evidence or arguments supporting the petition.

(c)Petitions must be filed as soon as practicable, but in no event more than 30 days after issuance of decision or finding under § 414.37. § 414.41 Administrative law judge's recommended decision in safety approval actions.

(a)The Associate Administrator, who will make the final decision on the matter at issue, will review the recommended decision of the administrative law judge. The Associate Administrator will make such final decision within 30 days of issuance of the recommended decision.

(b)The authority and responsibility to review and decide rests solely with the Associate Administrator and may not be delegated. Issued in Washington, DC, on August 8, 2006. Marion C. Blakey, Administrator. [FR Doc. E6-13313 Filed 8-14-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Fiscal Service 31 CFR Parts 315, 341, 346, 351, 352, 353, 359, and 360 Regulations Governing U.S. Savings Bonds, Series A, B, C, D, E, F, G, H, J, and K, and U.S. Savings Notes; United States Retirement Plan Bonds; United States Individual Retirement Bonds; United States Savings Bonds, Series EE and HH; Definitive United States Savings Bonds, Series I; Offering of United States Savings Bonds, Series EE; United States Savings Bonds, Series HH; Offering of United States Savings Bonds, Series I AGENCY: Bureau of the Public Debt, Fiscal Service, Treasury. ACTION: Final rule. SUMMARY: This final rule eliminates requirements to inscribe complete taxpayer identification numbers

(TINs)on the face of:

(1)Newly issued definitive Series EE and Series I savings bonds;

(2)reissued or replaced definitive Series E, Series EE, Series H, Series HH, and Series I savings bonds; and

(3)reissued or replaced Individual Retirement and Retirement Plan bonds. This change is being implemented to protect the privacy of savings bond owners. Purchasers of newly issued savings bonds will continue to be required to provide the TIN of the owner, first named coowner, or purchaser of a gift bond to be maintained as part of the registration of the bonds on the records of the Treasury Department. The TINs of the registered owner or first named coowner of a reissued or replaced bond will also be maintained as a part of the registration on the records of the Treasury Department. DATES: *Effective:* August 15, 2006. ADDRESSES: You can download this final rule at the following Internet addresses: *http://www.publicdebt.treas.gov* or * http://www.gpoaccess.gov/ecfr* . FOR FURTHER INFORMATION CONTACT: Elisha Whipkey, Director, Division of Program Administration, Office of Securities Operations, Bureau of the Public Debt, at

(304)480-6319 or *elisha.whipkey@bpd.treas.gov* . Susan Sharp, Attorney-Adviser, Dean Adams, Assistant Chief Counsel, Edward Gronseth, Deputy Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, at

(304)480-8692 or *susan.sharp@bpd.treas.gov* . SUPPLEMENTARY INFORMATION: Newly purchased definitive Series EE and Series I savings bonds are issued with the TIN of the owner, first-named coowner, or purchaser of a gift bond inscribed on the face of the bond. Reissued or replaced definitive Series E, Series EE, Series H, Series HH, and Series I savings bonds, Individual Retirement bonds, and Retirement Plan bonds also have the TIN inscribed on the face of the bond. Due to concerns about the privacy of bond owners, the Department of the Treasury is eliminating language requiring the inscription of the complete TIN of the owner, first-named coowner, or purchaser of a gift bond on the face of the bond. The TIN of the owner, first-named coowner, or purchaser of a gift bond will continue to be maintained on the records of the Treasury Department. This change will benefit savings bond owners by providing additional privacy protections against identity theft. Procedural Requirements This final rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. Because this final rule relates to matters of public contract and procedures for United States securities, notice and public procedure and delayed effective date requirements are inapplicable, pursuant to 5 U.S.C. 553(a)(2). As no notice of proposed rulemaking is required, the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) does not apply. We ask for no new collections of information in this final rule. Therefore, the Paperwork Reduction Act (44 U.S.C. 3507) does not apply. List of Subjects 31 CFR Part 315 Banks and banking, Government securities, Federal Reserve system. 31 CFR Part 341 Bonds, Retirement. 31 CFR Part 346 Bonds, Retirement. 31 CFR Part 351 Bonds, Federal Reserve system, Government securities. 31 CFR Part 352 Bonds, Government securities. 31 CFR Part 353 Banks and banking, Government securities, Federal Reserve system. 31 CFR Part 359 Bonds, Federal Reserve system, Government securities, Securities. 31 CFR Part 360 Bonds, Federal Reserve system, Government securities, Securities. Accordingly, for the reasons set out in the preamble, 31 CFR Chapter II, Subchapter B, is amended as follows: PART 315—REGULATIONS GOVERNING U.S. SAVINGS BONDS, SERIES A, B, C, D, E, F, G, H, J, AND K, AND U.S. SAVINGS NOTES 1. The authority citation for Part 315 continues to read as follows: Authority: 31 U.S.C. 3105 and 5 U.S.C. 301. 2. Section 315.2 is amended by redesignating paragraphs

(g)through

(l)as paragraphs

(h)through (m), redesignating paragraphs

(m)through

(q)as paragraphs

(o)through (s), and adding new paragraphs

(g)and

(n)to read as follows: § 315.2 Definitions.

(g)*Inscription* means the information that is printed on the face of the bond.

(n)*Registration* means that the names of all persons named on the bond and the taxpayer identification number

(TIN)of the owner, first-named coowner, or purchaser of a gift bond are maintained on our records. 3. Section 315.7 is amended by revising the last sentence of paragraph

(a)to read as follows: § 315.7 Authorized forms of registration.

(a)*General.* * * * A savings bond registered in a form not substantially in agreement with one of the forms authorized by this subpart is not considered validly issued. PART 341—REGULATIONS GOVERNING UNITED STATES RETIREMENT PLAN BONDS 4. The authority citation for Part 341 is revised to read as follows: Authority: 5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3106 *et seq.* , 3125, 3126. 5. Section 341.2 is amended by revising the first sentence of paragraph

(b)to read as follows: § 341.2 Registration.

(b)*Inscription.* The inscription on the face of each bond will show the name, address, and date of birth of the registered owner, as well as information as to whether he is a self-employed individual or an employee, and the amount he contributed (if any) out of his own funds toward the purchase price of the bond. * * * PART 346—REGULATIONS GOVERNING UNITED STATES INDIVIDUAL RETIREMENT BONDS 6. The authority citation for Part 346 is revised to read as follows: Authority: 5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3106 *et seq.* , 3125, 3126. 7. Section 346.2 is amended by revising paragraph

(b)to read as follows: § 346.2 Registration.

(b)*Inscription.* The inscription on the face of each bond will show the name, address, and date of birth of the registered owner. The name of the beneficiary, if one is to be designated, will also be shown in the inscription. PART 351—OFFERING OF UNITED STATES SAVINGS BONDS, SERIES EE 8. The authority citation for Part 351 continues to read as follows: Authority: 5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105. 9. Section 351.3 is amended by adding the definitions of “Inscription” and “Registration”, in alphabetical order, and removing the definitions of “Registration of a book-entry Series EE savings bond” and “Registration of a definitive Series EE savings bond”, to read as follows: § 351.3 What special terms do I need to know to understand this part? *Inscription* means the information that is printed on the face of the bond. *Registration* means that the names of all persons named on the bond and the taxpayer identification number

(TIN)of the owner, first-named coowner, or purchaser of a gift bond are maintained on our records. 10. Revise § 351.43 to read as follows: § 351.43 Are taxpayer identification numbers

(TINs)required for the registration of a definitive Series EE savings bond? The registration of a definitive Series EE savings bond must include the TIN of the owner or first-named coowner. The TIN of the second-named coowner or beneficiary is not required but its inclusion is desirable. If the bond is being purchased as a gift or award and the owner's TIN is not known, the TIN of the purchaser must be included in the registration of the bond. PART 352-OFFERING OF UNITED STATES SAVINGS BONDS, SERIES HH 11. The authority citation for Part 352 is revised to read as follows: Authority: 5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105. 12. Section 352.3 is amended by revising the first sentence of paragraph

(c)to read as follows: § 352.3 Registration and issue.

(c)*Taxpayer identifying number.* The registration of a bond must include the taxpayer identifying number of the owner or first-named co-owner. * * * PART 353—REGULATIONS GOVERNING UNITED STATES SAVINGS BONDS, SERIES EE AND HH 13. The authority citation for Part 353 continues to read as follows: Authority: 5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105, 3125. 14. Section 353.2 is amended by redesignating paragraphs

(d)through

(h)as paragraphs

(e)through (i), redesignating paragraphs

(i)through

(m)as paragraphs

(k)through (o), and adding new paragraphs

(d)and

(j)to read as follows: § 353.2 Definitions.

(d)*Inscription* means the information that is printed on the face of the bond.

(j)*Registration* means that the names of all persons named on the bond and the taxpayer identification number

(TIN)of the owner, first-named coowner, or purchaser of a gift bond are maintained on our records. 15. Section 353.5 is amended by revising the heading and the second sentence of paragraph

(c)to read as follows: § 353.5 General rules.

(c)*Registration of bonds purchased as gifts.* * * * Bonds so registered will not be associated with the purchaser's own holdings. 16. Section 353.7 is amended by revising the last sentence of the introductory paragraph to read as follows: § 353.7 Authorized forms of registration. * * * A savings bond registered in a form not substantially in agreement with one of the forms authorized by this subpart is not considered validly issued. PART 359—OFFERING OF UNITED STATES SAVINGS BONDS, SERIES I 17. The authority citation for Part 359 continues to read as follows: Authority: 5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105. 18. Section 359.3 is amended by adding the definitions of “Inscription” and “Registration” in alphabetical order, and removing the definitions of “Registration of a book-entry Series EE savings bond” and “Registration of a definitive Series EE savings bond”, to read as follows: § 359.3 What special terms do I need to know to understand this part? *Inscription* means the information that is printed on the face of the bond. *Registration* means that the names of all persons named on the bond and the taxpayer identification number

(TIN)of the owner, first-named coowner, or purchaser of a gift bond are maintained on our records. 19. Revise § 359.28 to read as follows: § 359.28 Are taxpayer identification numbers

(TINs)required for the registration of definitive Series I savings bonds? The registration of a definitive Series I savings bond must include the TIN of the owner or first-named coowner. If the bond is being purchased as a gift or award and the owner's TIN is not known, the TIN of the purchaser must be included in the registration of the bond. PART 360—REGULATIONS GOVERNING DEFINITIVE UNITED STATES SAVINGS BONDS, SERIES I 20. The authority citation for Part 360 continues to read as follows: Authority: 5 U.S.C. 301; 31 U.S.C. 3105 and 3125. 21. Section 360.2 is amended by redesignating paragraphs

(d)through

(h)as paragraphs

(e)through (i), redesignating paragraphs

(i)through

(m)as paragraphs

(k)through (o), and adding new paragraphs

(d)and

(j)to read as follows: § 360.2 Definitions.

(d)*Inscription* means the information that is printed on the face of the bond.

(j)*Registration* means that the names of all persons named on the bond and the taxpayer identification number

(TIN)of the owner, first-named coowner, or purchaser of a gift bond are maintained on our records. 22. Section 360.5 is amended by revising the heading and the second sentence of paragraph

(c)to read as follows: § 360.5 General rules.

(c)*Registration of bonds purchased as gifts.* * * * Bonds so registered will not be associated with the purchaser's own holdings. 23. Section 360.6 is amended by revising the last sentence of the introductory paragraph to read as follows: § 360.6 Authorized forms of registration. * * * A savings bond registered in a form not substantially in agreement with one of the forms authorized by this subpart is not considered validly issued. Dated: August 8, 2006. Donald V. Hammond, Fiscal Assistant Secretary. [FR Doc. E6-13301 Filed 8-14-06; 8:45 am] BILLING CODE 4810-39-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD01-06-097] Special Local Regulation: Taste of Italy Fireworks, Norwich, CT AGENCY: Coast Guard, DHS. ACTION: Notice of implementation. SUMMARY: This document puts into effect the permanent regulations for the annual Taste of Italy Fireworks in Norwich, CT. The regulation is necessary to control vessel traffic within the immediate vicinity of the event due to the hazards presented by a fireworks display to the maritime community, thus providing for the safety of life and property on the affected waters. DATES: This regulation is effective from 8 p.m. on September 9, 2006 to 10:45 p.m. on September 10, 2006. FOR FURTHER INFORMATION CONTACT: John Mauro, Chief Waterways Management Branch, First Coast Guard District,

(617)223-8355. SUPPLEMENTARY INFORMATION: This document implements the permanent special local regulation governing the Taste of Italy Fireworks, Norwich, CT. 33 CFR 100.114(a)(9.5). A portion of the waters off of Norwich Harbor, Norwich, CT will be closed during the effective period to all vessel traffic, except the fireworks barge and local, state or Coast Guard patrol craft. The regulated area is that area of Norwalk Harbor in a 600-foot radius of the fireworks barge located at approximate position 41°31.706′ N., 072°04.718′ W. All coordinates are North American Datum 1983. Additional public notification will be made via the First Coast Guard District Local Notice to Mariners and marine safety broadcasts. The full text of this regulation is found in 33 CFR 100.114. Dated: July 18, 2006. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E6-13311 Filed 8-14-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD01-06-095] RIN 1625-AA00 Safety Zone; Celebrate Revere Fireworks, Broad Sound, Revere, MA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone for the “Celebrate Revere” Fireworks display on August 19, 2006 in Revere, Massachusetts, temporarily closing all waters of Broad Sound within a four hundred

(400)yard radius of the fireworks launch site located at approximate position 42° 24.00′ N, 070° 59.00′ W. This zone is necessary to protect the maritime public from the potential hazards associated with a fireworks display. The safety zone temporarily prohibits entry into or movement within this portion of Broad Sound during its closure period, unless authorized by the Captain of the Port, Boston, MA. DATES: This rule is effective from 8:30 p.m. EDT until 10 p.m. EDT on August 19, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD01-06-095 and are available for inspection or copying at Sector Boston, 427 Commercial Street, Boston, MA, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Paul English, Sector Boston, Waterways Management Division, at

(617)223-5456. SUPPLEMENTARY INFORMATION: 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. A notice of proposed rulemaking

(NPRM)was not published for this regulation because 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 Broad Sound during the fireworks display and to provide for the safety of life on navigable waters. 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 zone should have a minimal negative impact on vessel transits in this portion of Broad Sound because vessels will be excluded from the area for only one and one half hours, and vessels can still safely operate in other areas of Broad Sound during the event. Background and Purpose The City of Revere is holding a fireworks display in honor of the “Celebrate Revere” event. This rule establishes a temporary safety zone on the waters of Broad Sound within a four hundred

(400)yard radius of the fireworks launch site located at approximate position 42° 24.00′ N, 070° 59.00′ W. This zone is necessary to protect the maritime public from the potential dangers associated with this event, by prohibiting entry into or movement within the proscribed portion of Broad Sound during the fireworks display. Discussion of Rule This rule is effective from 8:30 p.m. EDT until 10:00 p.m. EDT on August 19, 2006. Marine traffic may transit safely outside of the safety zone in the majority of Broad Sound during the event. Given the limited time of the effective period of the zone and the size of Broad Sound compared to the small 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. Regulatory Evaluation 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 maritime traffic from transiting a portion of Broad Sound during this event, the effect of this rule will not be significant for several reasons: vessels will be excluded from the safety zone for only one and one half hours; vessels will not be able to transit Broad Sound in the safety zone itself, but they will be able to safely operate in other areas of Broad Sound during the effective period. Further, advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners. Small Entities 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 Broad Sound from 8:30 p.m. EDT until 10 p.m. EDT on August 19, 2006. This safety zone will not have a significant economic impact on a substantial number of small entities for the reason described under the Regulatory Evaluation section. Assistance for Small Entities Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Public Law 104-121], we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this temporary rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Chief Petty Officer Paul English, Sector Boston, Waterways Management Division, at

(617)223-5456. 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). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism 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. Unfunded Mandates Reform Act 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. Taking of Private Property 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. Civil Justice Reform 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. Protection of Children 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. Indian Tribal Governments 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. Energy Effects 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. Technical Standards 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. Environment 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

(g)of the Instruction, from further environmental documentation. This rule is covered by paragraph

(34)(g), because it would establish 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 . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T01-095 to read as follows: § 165.T01-095 Safety Zone; Celebrate Revere Fireworks, Broad Sound, Revere, MA

(a)*Location.* The following area is a safety zone: All waters of Broad Sound, from surface to bottom, within a four hundred

(400)yard radius of the fireworks launch site located at approximate position 42° 24.00′ N, 070° 59.00′ W.

(b)*Effective Date.* This section is effective from 8:30 p.m. EDT until 10 p.m. EDT on August 19, 2006.

(c)*Definitions.*

(1)Designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP).

(2)[Reserved]

(d)*Regulations.*

(1)In accordance with the general regulations in § 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the Captain of the Port (COTP), Boston or the COTP's designated representative.

(2)The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.

(3)Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative. Dated: August 1, 2006. James L. McDonald, Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts. [FR Doc. E6-13397 Filed 8-14-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2006-0467; FRL-8209-9] Approval and Promulgation of Implementation Plans; State of Missouri AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is taking final action to approve Missouri's nitrogen oxides (NO X ) plan for the eastern one-third of the state. The plan consists of three rules, a budget demonstration, and supporting documentation. The plan will contribute to attainment and maintenance of the 8-hour ozone standard in several downwind areas. Missouri's plan, which focuses on large electric generating units, large industrial boilers, large stationary internal combustion engines, and large cement kilns, was developed to meet the requirements of EPA's April 21, 2004, Phase II NO X State Implementation Plan

(SIP)Call. EPA is taking final action to approve the plan as a SIP revision fulfilling the NO X SIP Call requirements. The initial period for compliance under the plan will begin in 2007, and the emission monitoring and reporting requirements for sources holding allowances under the plan began on May 1, 2006. DATES: This rule is effective on September 14, 2006. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2006-0467. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8:00 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. FOR FURTHER INFORMATION CONTACT: Michael Jay at

(913)551-7460, or by e-mail at *jay.michael@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. I. Background II. Summary of State Submittal A. What Are the Basic Components of the State's Plan? B. What Do the Rules Require? 1. What Are the Requirements of the EGU and Non-EGU Rule? 2. What Are the Requirements of the Cement Kiln Rule? 3. What Are the Requirements of the Large Stationary Internal Combustion Engine Rule? C. How Does Missouri Address Its NO X SIP Call Budget? III. What Action Is EPA Taking? IV. Statutory and Executive Order Reviews I. Background By notice dated October 27, 1998 (63 FR 57356), we took final action to prohibit specified amounts of emissions of one of the main precursors of groundlevel ozone, NO X , in order to reduce ozone transport across state boundaries in the eastern half of the United States. We set forth requirements for each of the affected upwind states to submit SIP revisions prohibiting those amounts of NO X emissions during the five-month period from May 1 through September 30 which significantly contribute to downwind air quality problems. We established statewide NO X emissions budgets for the affected states. The budgets were calculated by assuming the emissions reductions that would be achieved by applying available, highly cost-effective controls to source categories of NO X , i.e., the amounts of reductions determined by EPA for large, fossil-fuel-fired electric generating units (EGUs), large, fossil-fuel-fired industrial boilers, combustion turbines, and combined cycle systems (non-EGUs), large stationary internal combustion

(IC)engines, and cement kilns. States have the flexibility to adopt the appropriate mix of controls for their state to meet the NO X emissions reductions requirements of the NO X SIP Call. A number of parties, including certain states as well as industry and labor groups, challenged our NO X SIP Call rule. A subsequent ruling by the Court of Appeals for the District of Columbia Circuit on March 3, 2000, vacated the inclusion of the entire state of Missouri. *Michigan* v. *EPA* , 213 F.3d 663 (DC Cir. 2000). In response to the Court's decision, we issued the February 22, 2002, proposed rule to include only specified counties in the eastern one-third of Missouri in the NO X SIP Call (67 FR 8413). On April 21, 2004, we finalized our responses to the Court's decision in a final rulemaking, “Interstate Ozone Transport: Response to Court Decisions on the NO X SIP Call, NO X SIP Call Technical Amendments, and Section 126 Rules,” also referred to as “Phase II of the NO X SIP Call” (69 FR 21604). This rulemaking made a number of revisions to the 1998 rule. Most relevant to this rulemaking, it finalized our earlier proposal to include only the eastern one-third of Missouri in the NO X SIP Call. Accordingly, consistent with the Court's finding in *Michigan* , Missouri's NO X emissions budget was revised to include only the eastern one-third of the state. The NO X SIP Call requires that states revise their SIPs to assure that sources in the state reduce their NO X emissions sufficiently to eliminate the amounts of NO X emissions that contribute significantly to ozone nonattainment, or that interfere with maintenance, downwind, as required under the Clean Air Act

(CAA)section 110(a)(2)(D)(i)(I). States must demonstrate that their SIP includes sufficient measures to eliminate the significant amount of emissions by providing documentation in the form of a budget demonstration that details how the reductions are to be achieved. The total amount of NO X emissions from all NO X sources remaining after the state prohibits the significant amount of NO X emissions, as identified in the NO X SIP Call, represents the emissions budget for the state. The NO X SIP Call provided states the flexibility to decide which source categories to regulate in order to meet the emissions budget. In order to provide assistance to the states, we suggested imposing a variety of control strategies that provide for a highly cost effective means for states to meet their NO X emissions budgets. These strategies include imposing NO X emissions caps and providing for an allowance trading program for large EGUs and large non-EGUs, as well as emission reduction requirements for cement kilns and large IC engines. EPA's model NO X budget trading rule for SIPs, 40 CFR Part 96, Subparts A through I, sets forth a NO X allowance trading program for large EGUs and large non-EGUs. A state can voluntarily choose to adopt EPA's model rule in order to allow sources within its borders to participate in regional allowance trading as a way to achieve the required emission reductions for large EGUs and large non-EGUs. The October 27, 1998, **Federal Register** document contains a full description of the EPA's model NO X budget trading program (See 63 FR 57514-57538 and 40 CFR Part 96, Subparts A through I). It should be noted that Missouri currently has in place a SIP-approved statewide NO X Rule, 10 CSR 10-6.350, and is also in the process of adopting additional rules to meet the requirements of the Clean Air Interstate Rule (CAIR). The statewide NO X rule and the rules under development to meet CAIR are designed to meet different EPA requirements. II. Summary of State Submittal A. What Are the Basic Components of the State's Plan? The main components of Missouri's plan include three NO X rules and a budget demonstration with supporting materials. The rules include: 10 CSR 10-6.360, pertaining to large EGUs and large fossil-fuel-fired industrial boilers (industrial boilers), 10 CSR 10-6.380 for cement kilns, and 10 CSR 10-6.390 for large stationary internal combustion engines. The purpose of these rules is to prohibit NO X emissions as identified in the NO X SIP Call that significantly contribute to downwind ozone nonattainment. In the NO X SIP Call the required emissions reductions were determined based on the implementation of available, highly cost-effective controls for selected source categories. Therefore, Missouri has developed and adopted three rules generally covering the source categories (i.e., large EGUs, large industrial boilers, cement kilns, and large stationary IC engines) for which EPA found that cost-effective controls were available. 1 EPA has reviewed the three rules and has found that Missouri's rules will achieve the emission reduction requirements of the NO X SIP Call and thus eliminate Missouri's significant contribution to downwind 8-hour ozone nonattainment. A more detailed description of each rule follows under II(B). The purpose of the budget demonstration is to provide an accounting mechanism for ensuring that Missouri has adopted control measures that prohibit the significant amounts of NO X emissions targeted by CAA section 110(a)(2)(D)(i)(I). A more detailed discussion of the demonstration is provided below under II(C). 1 Although in the NO X SIP Call, EPA found generally that highly cost effective reductions were achievable at large industrial boilers, combustion turbines, and combined cycle systems, the fine grid portion of Missouri does not include existing large combustion turbines and combined cycle systems. The language of the applicability provisions for non-EGUs in Missouri's trading rule expressly covers only large non-EGUs that are industrial boilers. B. What Do the Rules Require? 1. What Are the Requirements of the EGU and Non-EGU Rule? Missouri adopted 10 CSR 10-6.360 “Control of NO X Emissions From Electric Generating Units and Non-Electric Generating Boilers.” The rule effectively adopts the essential elements of EPA's NO X Budget Trading model rule set forth in the October 1998 **Federal Register** document for applicable sources found in the eastern one-third of the state covered by the NO X SIP Call. The Missouri rule affects large EGUs (in general, fossil-fuel-fired boilers, combustion turbines, and combined cycle systems that serve a generator with a nameplate capacity greater than 25 megawatts

(MWe)producing electricity for sale) and large industrial boilers (generally, industrial fossil-fuel-fired boilers with a maximum design heat input greater than 250 million British thermal units per hour (mmBtu/hr)). 2 2 It should be noted that as described in the proposal, EPA interprets “nameplate capacity” to be the amount, specified by the manufacturer of the generator, as of initial installation and interprets “maximum design heat input” to be the amount, specified by the manufacturer of the unit, as of initial installation based on the physical design and physical characteristics of the equipment. Consequently, nameplate capacity and maximum design heat input are determined on a one-time basis and are not changed by subsequent modification of the generator or unit respectively. The emissions cap on large EGUs for the eastern one-third of Missouri, as described in the Phase II notice, is set at 13,400 tons per ozone season, and was based on a baseline heat input (mmBtu/hr) and emissions rate of 0.15 NO X lbs/mmBtu. The EGU emissions budget is equivalent to the number of allowances that the state has authority to distribute. One percent of this budget, 134 tons, has been included in an “energy efficiency and renewable generation projects set-aside.” The purpose of this set-aside is to provide an incentive to save or generate electricity through the implementation of projects that reduce the consumption of fossil-fuel. The rule contains a list of large EGUs and the number of remaining allowances that will be provided for each unit during the control periods beginning in the year 2007. The level of reduction for large industrial boilers was based on emissions decreases from uncontrolled levels. In accordance with the NO X SIP Call, Missouri based the number of NO X allowances for each unit on a 60 percent reduction from each unit's estimated 2007 levels of emissions, which were adjusted for projected growth for large industrial boilers. Missouri identified three existing units in the eastern one-third of the state as meeting the applicability requirement for large industrial boilers and, based on reductions from their uncontrolled emissions adjusted for projected growth, established 59 tons as the large industrial boiler portion of the trading budget. The rule specifically allocates allowances to these three large industrial boilers. The NO X trading budget for Missouri is the sum of the large EGU budget (13,400) and the large industrial boiler budget

(59)and totals 13,459 tons. Under 10 CSR 10-6.360, Missouri allocates NO X allowances to both its large EGUs and large industrial boilers. Each NO X allowance permits a unit to emit one ton of NO X during the ozone season control period. NO X allowances may be bought or sold. Unused NO X allowances may also be banked for future use, with certain limitations. Missouri's rule requires each large EGU and large industrial boiler to hold allowances to cover its emissions after each control period. For each ton of NO X emitted in a control period, EPA will remove one allowance from the unit's NO X Allowance Tracking System account after the end of the control period. Once the allowance has been used for compliance, no unit can use the allowance again. Monitoring requirements specify that owners and operators will be required to continuously monitor their NO X emissions by using systems that meet the requirements of 40 CFR part 75, subpart H. The monitoring requirements also include quarterly emission reporting. The compliance supplement pool

(CSP)is a pool of allowances that can be used in the beginning of the program to provide certain NO X Budget units additional compliance flexibility. The CSP was created to address concerns raised by commenters on the NO X SIP Call proposal regarding electric reliability during the initial years of the program. Missouri may distribute its 5,630 ton allowance pool based on early reductions, a demonstrated need, or both. A unit making an application to the CSP based on early reductions must demonstrate that reductions were made beyond all applicable requirements sometime during the ozone seasons of 2002 through 2006. Missouri's CSP may be used to account for emissions during the 2007 and 2008 control periods. 2. What Are the Requirements of the Cement Kiln Rule? Missouri adopted 10 CSR 10-6.380, “Control of NO X Emissions From Portland Cement Kilns.” The rule effectively adopts the NO X SIP Call's recommended approach of obtaining a 30 percent reduction from uncontrolled levels from large Portland cement kilns found in the NO X SIP Call region of the eastern one-third of the state. The rule applies only to kilns with process rates of at least the following: Long dry kilns—12 tons per hour

(TPH)Long wet kilns—10 TPH Preheater kilns—16 TPH Precalciner and preheater/precalciner kilns—22 TPH In the NO X SIP Call, EPA cited its peer reviewed analysis, “EPA's Alternative Control Techniques (ACT)” (EPA-453/R-94-004, March 1994) as demonstrating that cost-effective controls in the form of low-NO X burners and mid-kiln firing are available to the cement kiln industry and can achieve a 30 percent reduction from uncontrolled levels of emissions. Consistent with EPA's approach in the NOX SIP Call, Missouri's rule provides that compliance can be achieved by the installation and operation of low-NO X burners or mid-kiln firing or by alternative measures that are all designed to achieve the 30 percent cost-effective reduction. 3. What Are the Requirements of the Large Stationary Internal Combustion Engine Rule? Missouri adopted 10 CSR 10-6.390, “Control of NO X Emissions From Large Stationary Internal Combustion Engines.” The rule effectively adopts the NO X SIP Call's recommended approach of the establishment of emissions levels that obtain an 82 percent reduction from large natural gas-fired stationary IC engines and a 90 percent reduction from large diesel and dual fuel stationary IC engines found in the NO X SIP Call region of the eastern one-third of the state. C. How Does Missouri Address Its NO X SIP Call Budget? Missouri's budget for the NO X SIP Call was contained in the Phase II rulemaking in April 2004. Today's rulemaking finalizes EPA's proposal to adopt corrections to the April 2004 budget for Missouri that were detailed in the June 5, 2006, proposal, as no comments were received on any of the proposed revisions. Based on EPA's approach in the proposal, the NO X SIP Call 2007 budget for the eastern one-third of Missouri is 60,235 tons per ozone season and represents the sum of EGU, Non-EGU Point, Area, Off-Road and Mobile source emissions. A breakdown of the emissions budget can be found in Table I. As explained in more detail in the NO X SIP Call, the NO X SIP Call requires that states revise their SIPs to assure that sources in the state reduce their NO X emissions sufficiently to eliminate the amounts of NO X emissions that contribute significantly to ozone nonattainment, or that interfere with maintenance, downwind. The amount of NO X emissions reductions required is the amount of emissions reductions that would be achieved by applying available, highly cost-effective controls to large EGUs, large non-EGUs, large stationary IC engines, and cement kilns. However, EPA structured the rule to give the upwind states a choice of which mix of measures to adopt in order to eliminate the significant amount of NO X emissions. To this end, EPA developed an emissions budget that was based on the aforementioned application of highly cost-effective controls. The emissions budget represents the amount of NO X emissions remaining after the state prohibits the significant amount. EPA finds that Missouri has demonstrated compliance with the budget demonstration, and thus the NO X SIP Call, by adopting control measures that are modeled after EPA's recommended approach for controlling large EGUs, large non-EGUs, large IC engines, and cement kilns, and that implementation of these rules will achieve the emissions reductions necessary to eliminate the “significant contribution” to downwind ozone nonattainment identified under CAA section 110(a)(2)(D)(i)(I), as implemented by the NO X SIP Call. Table I.—Corrected NO X Budget for Missouri Source category 2007 Budget emissions

(tpos)Large EGUs (>25 MW) 13,400 Other EGUs 241 Other Non EGUs 5,903 Large non-EGUs (including large industrial boilers) (>250 MMBtu) 59 Cement Kilns 7,483 Area 2,199 On Road Mobile 21,318 Off-Road Mobile 9,632 Total 60,235 III. What Action Is EPA Taking? EPA is taking final action to approve Missouri's request to revise the SIP to include their NO X plan that includes three NO X rules and a budget demonstration to meet the requirements of the NO X SIP Call. EPA proposed to approve the rules and budget demonstration on June 5, 2006 (71 FR 32291). The comment period closed on EPA's proposal on July 5, 2006. No comments were received. EPA is finalizing the approval as proposed, based on the rationale stated in the proposal and in this final action. Also, as explained in the proposal, EPA's approval is premised on Missouri's commitment to include in the Missouri trading rule any large industrial combustion turbines and large industrial combined cycle systems which may be constructed in the future. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 16, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: August 8, 2006. William A. Spratlin, Acting Regional Administrator, Region 7. Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for Part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart AA—Missouri 2. In § 52.1320(c) the table is amended under Chapter 6 by adding entries for “10-6.360,” “10-6.380,” and “10-6.390” to read as follows: § 52.1320 Identification of plan.

(c)* * * EPA-Approved Missouri Regulations Missouri citation Title State effective date EPA approval date Explanation Missouri Department of Natural Resources * * * * * * * Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri * * * * * * * 10-6.360 Control of NO X Emissions From Electric Generating Units and Non-Electric Generating Boilers 10/30/05 8/15/06 [ *insert FR page number where the document begins* ] 10-6.380 Control of NO X Emissions From Portland Cement Kilns 10/30/05 8/15/06 [ *insert FR page number where the document begins* ] 10-6.390 Control of NO X Emissions From Large Stationary Internal Combustion Engines 10/30/05 8/15/06 [ *insert FR page number where the document begins* ] * * * * * * * [FR Doc. E6-13347 Filed 8-14-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU21 Endangered and Threatened Wildlife and Plants; Special Rule for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the Fish and Wildlife Service (Service), under the Endangered Species Act (Act), as amended, create a special rule for the southwest Alaska distinct population segment

(DPS)of the northern sea otter ( *Enhydra lutris kenyoni* ). This DPS of the northern sea otter is listed as threatened under the Act. This special rule allows for the limited, noncommercial import and export of items that qualify as authentic native articles of handicrafts and clothing that were derived from sea otters legally taken for subsistence purposes by Alaska Natives from the listed population. This special rule also allows for cultural exchange by Alaska Natives and activities conducted by persons registered as an agent or tannery under existing law. We also amend our definition of “Authentic native articles of handicrafts and clothing” by striking the stipulation that such items were commonly produced on or before December 28, 1973. This definition change is appropriate in light of a court ruling on the Service's definition of “Authentic native articles of handicrafts and clothing” and consistent with our current definition of “Authentic native articles of handicrafts and clothing” under the Marine Mammal Protection Act

(MMPA)of 1972. DATES: This rule is effective on September 14, 2006. ADDRESSES: The complete file for this final rule is available for inspection, by appointment, during normal business hours at the Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, Alaska 99503. FOR FURTHER INFORMATION CONTACT: Charles Hamilton (see ADDRESSES ), telephone, 907-786-3800; facsimile, 907-786-3816, e-mail, *Charles_Hamilton@fws.gov.* Persons who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339, 24 hours a day, 7 days a week. SUPPLEMENTARY INFORMATION: Background On August 9, 2005, we published a final rule (70 FR 46366) to list the southwest Alaska DPS of the northern sea otter as threatened under the Act (Act), as amended (16 U.S.C. 1531 et seq.). Section 4(d) of the Act specifies that, for species listed as threatened, the Secretary shall develop such regulations as determined necessary and advisable for the conservation of the species. Our regulations at 50 CFR 17.31 provide that all the prohibitions for endangered wildlife under 50 CFR 17.21, with the exception of § 17.21(c)(5), will generally also be applied to threatened wildlife. Prohibitions include, among others, take, import, export, and shipment in interstate or foreign commerce in the course of a commercial activity. The general provisions for issuing a permit for any activity otherwise prohibited with regard to threatened species are found at 50 CFR 17.32. The Service may, however, also develop a special rule for a threatened species that specifies prohibitions and authorizations that are necessary and advisable for the conservation of that particular species. In such cases, some of the prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into the special rule, but the rule will include special provisions tailored to the specific conservation needs of the listed species. On August 9, 2005, we proposed a special rule for the Southwest Alaska DPS of the northern sea otter (70 FR 46387). Section 10(e) of the Act provides an exemption for Alaska Natives that allows for the taking and importation of listed species if such taking is primarily for subsistence purposes. Nonedible by-products of species taken in accordance with the exemption, when made into authentic native articles of handicraft and clothing, may be transported, exchanged, or sold in interstate commerce. The Act defines authentic native articles of handicraft and clothing as items composed wholly or in some significant respect of natural materials, and which are produced, decorated or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices [16 U.S.C. 1539(e)(3)(ii)]. That definition also provides that traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. These exemptions are similar to those under the MMPA (16 U.S.C. 1361 et seq.), which also provides for the conservation of sea otters and which likewise includes special provisions for subsistence harvest and the creation and sale of authentic native articles of handicrafts or clothing by Alaska Natives. For more information on the definition of authentic native articles of handicrafts and clothing, see the Definition Change section of this document. Both the Act and the MMPA recognize the intrinsic role that marine mammals have played and continue to play in the subsistence, cultural, and economic lives of Alaska Natives. The Service, in turn, recognizes the important role that Alaska Natives can play in the conservation of marine mammals. Amendments to the MMPA in 1994 acknowledged this role by authorizing the Service to enter into cooperative agreements with Alaska Natives for the conservation and co-management of subsistence use of marine mammals (16 U.S.C. 1388). Since 1997, the Service has entered into annual cooperative agreements with The Alaska Sea Otter and Steller Sea Lion Commission (TASSC) under this section of the MMPA. The TASSC was established in 1988 as the Alaska Sea Otter Commission to represent the interests of subsistence users and sea otter hunters on issues relating to the subsistence harvest of sea otters in Alaska. Through these cooperative agreements, the Service has worked with TASSC to better understand the status and trends of sea otters throughout Alaska. For example, Alaska Natives collect and contribute biological specimens from subsistence-harvested animals for biological analysis. Analysis of these samples allows us to monitor the health and status of sea otter stocks. Additionally, some communities that harvest sea otters conduct skiff surveys of sea otters in their local areas. The results of these surveys may serve to complement the Service's own surveying and monitoring program, and provide us with a better understanding of sea otter distribution and abundance. Further, the Service and TASSC are exploring the development of harvest management programs that are consistent with both sound wildlife management techniques and the socioeconomic requirements of Alaska Native subsistence hunters. We recognize the unique contributions Alaska Natives are able to provide to the Service's understanding of sea otters, and their interest in ensuring that northern sea otter stocks are conserved and managed for healthy populations throughout the range in coastal Alaska. As discussed in our proposed and final rules listing this DPS of the northern sea otter as threatened (69 FR 6600, 70 FR 46366), since 1989, the annual subsistence harvest of sea otters from the southwest Alaska DPS has averaged fewer than 100 otters per year. During that time period, nearly 80 percent of the harvest occurred in the Kodiak archipelago. Areas that have experienced the most severe population declines within the southwest Alaska DPS have had little or no subsistence harvest. In our final rule to list the southwest Alaska DPS of the northern sea otter as threatened, we found that the current level and geographic distribution of the subsistence harvest was neither negatively nor materially impacting the DPS. Thus, at this time, the harvest of northern sea otters from this DPS and associated creation, sale, and shipment of authentic handicrafts and clothing are not threats to the DPS. Nor does the Service find that Alaska Native activities associated with subsistence harvests negatively affect our efforts at recovery for this DPS. The Service will continue to monitor the subsistence harvest of sea otters from the southwest Alaska DPS, and will periodically reevaluate the impact of the subsistence harvest on the conservation of the species. The Service, in accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 and the Department of the Interior's manual at 512 DM 2, and Secretarial Order 3225, acknowledges our responsibility to communicate meaningfully with federally recognized Tribes on a government-to-government basis. During the public comment period following our proposal to list the southwest Alaska DPS of the northern sea otter as threatened (69 FR 6600), Alaska Native tribes and tribally-authorized organizations were among those that provided comments on the listing action. Alaska Natives noted to the Service that prohibitions on export and import under the Act could limit their ability to participate in cultural exchanges that foster the sharing and exchange of ideas, information, gifts, clothing, or handicrafts between Indians, Aleuts, and Eskimos residing in Alaska and Native inhabitants of Russia, Canada, and Greenland. Further, Alaska Natives noted their concern that foreign visitors to the United States might be restricted from leaving the country with their lawfully acquired and possessed authentic Native articles of handicrafts or clothing derived from sea otters from the southwest Alaska DPS, thus limiting Alaska Natives' ability to sell authentic native handicrafts to foreign visitors or tourists. We are mindful of the unique exemptions from the prohibitions against take, import, and interstate sale of authentic native handicrafts and clothing provided to Alaska Natives under the Act. These exemptions are similar to the exemptions provided Alaska Natives under the MMPA. Furthermore, as discussed above, the Service has determined that, not only is the listed population of northern sea otters subjected to little or no impact from Alaska Native harvest, but TASSC and its constituent members are working with the Service to better understand this DPS and the possible causes for its decline. The Service recognizes that this DPS, and northern sea otters throughout Alaska, could benefit from continued involvement of the Alaska Native community in the conservation of sea otters. Therefore, we have developed this special rule to provide for the conservation of sea otters, while at the same time accommodating Alaska Natives' subsistence, cultural, and economic interests. This rule aligns the provisions of the Act relating to the creation, shipment, and sale of authentic native handicrafts and clothing by Alaska Natives with what is already allowed under the MMPA. Under this special rule, except for persons and activities covered by the specific provisions relating to authentic native handicrafts and clothing, cultural exchange, and limited types of travel, all of the prohibitions under 50 CFR 17.31 apply. Thus, import, export, take, possession of unlawfully taken sea otters, interstate or foreign commerce in the course of a commercial activity, and sale would be generally prohibited unless the activity qualifies for a permit for purposes of science, enhancement of propagation or survival, economic hardship, zoological exhibition, education, or other special purpose, or the activity qualifies for incidental take authorization, and the person has received the necessary approval. Who may qualify for such permits and the criteria we use to evaluate applications are found at 50 CFR part 13 and 50 CFR 17.32. The deviations in this rule from the standard provisions found at 50 CFR 17.31 and 17.32 apply only to cultural exchange, limited types of travel, or to activities associated with the creation and sale of authentic native articles of handicrafts and clothing from sea otters taken legally by Alaska Natives. This special rule is also limited to activities that are not already exempted under the Act. The Act itself provides a statutory exemption to Alaska Natives for the harvesting of sea otters from the wild as long as the taking is for primarily subsistence purposes. The Act then specifies that sea otters taken under this provision can be used to create handicrafts and clothing and that these items can be sold in interstate commerce. Thus this special rule does not regulate the taking or importation of northern sea otters nor the sale in interstate commerce of authentic native articles of handicrafts and clothing by qualifying Alaska Natives; these have already been exempted by statute. The special rule addresses only activities relating to cultural exchange and limited types of travel, and to the creation and shipment of authentic native handicrafts and clothing that are currently allowed under section 101 of the MMPA that are not already clearly exempted under the Act. As discussed earlier, neither the activities already exempted under the Act nor the associated activities that are allowed under this special rule have been identified as threats to the DPS. One of the activities addressed in this special rule is cultural exchange between Alaska Natives and Native inhabitants of Russia, Canada, and Greenland with whom Alaska Natives share a common heritage. The MMPA allows the import and export of marine mammal parts and products that are components of a cultural exchange, which is defined as the sharing or exchange of ideas, information, gifts, clothing, or handicrafts. Cultural exchange has been an important exemption for Alaska Natives under the MMPA, and this special rule serves to ensure that such exchanges are not interrupted. The limited, noncommercial import and export of authentic native articles of handicrafts and clothing that are created from sea otters taken by Alaska Natives may also continue. The special rule clarifies that all such imports and exports involving DPS sea otters need to conform to what is currently allowed under the MMPA, comply with our import and export regulations found at 50 CFR part 14, and be noncommercial in nature. Service regulations define commercial as related to the offering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to the quantity or weight. There is a presumption that eight or more similar unused items are for commercial use. The Service or the importer/exporter/owner may rebut this presumption based upon the particular facts and circumstances of each case (see 50 CFR 14.4). Finally, this rule adopts the registered agent and tannery process from the current MMPA regulations. In order to assist Alaska Natives in the creation of authentic native articles of handicrafts and clothing, the Service's MMPA implementing regulations at 50 CFR 18.23(b) and

(d)allow persons who are not Alaska Natives to register as an agent or tannery. Once registered, agents are authorized to receive or acquire marine mammal parts or products from Alaskan Natives or other registered agents. They are also authorized to transfer (not sell) hides to registered tanners for further processing. A registered tannery may receive untanned hides from Alaska Natives or registered agents for tanning and return. The tanned skins may then be made into authentic articles of clothing or handicrafts by Alaska Natives. Registered agents and tanneries must maintain strict inventory control and accounting methods for any marine mammal part, including skins, they receive and provide accountings of such activities and inventories to the Service. These restrictions and requirements for agents and tanners allow the Service to monitor the processing of such items while ensuring that Alaska Natives can exercise their rights under the exemption. Adopting the registered agent and tannery process will align Act provisions relating to the creation of handicrafts and clothing by Alaska Natives with the current process under the MMPA. Any person engaging in activities under this special rule would also want to ensure that their actions are consistent with the other conservation laws that apply to the northern sea otter, including other provisions of the MMPA and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). For example, the exemption for Alaska Natives in section 10(e)(1) of the Act applies to “any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska” as well as to “any non-native permanent resident of an Alaskan native village.” However, the Alaska Native exemption under section 101 of the MMPA is limited to only an “Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean.” Because the MMPA is more restrictive, only a person who qualifies under the MMPA Native exemption may legally take sea otters for subsistence purposes, as a take by certain persons under the broader Act Native exemption would not be exempted under the MMPA. This special rule is intended to reconcile Alaska Native subsistence activities under the Act with Alaska Native subsistence activities that have been conducted for more than 30 years under the MMPA, which is more restrictive in some areas than the Act. Therefore, all persons, including those who qualify under the Alaska Native exemption of the Act, should consult the MMPA and our regulations at 50 CFR part 18 before engaging in any activity that may result in a prohibited act to ensure that their activities will be consistent with both laws. Northern sea otters from the DPS are also listed under Appendix II of CITES. The CITES regulates the import and export of listed specimens, which include live and dead animals and plants as well as parts and items made from the species. The CITES applies to the transport of legally possessed specimens from this DPS of sea otters over an international border, including driving from Alaska through Canada to a destination elsewhere in the United States. Appendix II specimens may not be exported from a member country without the prior grant of an export permit. Some limited exceptions to this permit requirement exist. For example, member countries may exempt personal and household effects from the permitting requirements. Personal and household effects must be personally owned for noncommercial purposes, and the quantity must be necessary or appropriate for the nature of the trip or stay or for household use. Persons who may cross an international border with a specimen of this DPS should check with the Service and the country of transit or destination in advance as to applicable requirements. Thus, a person engaging in activities involving DPS sea otters must comply with the requirements of the MMPA and CITES, including obtaining any required CITES documents, as well as the requirements of the Act, all of which will work together to conserve animals in the DPS. This rulemaking revises our regulations at 50 CFR part 17 to include a special rule that allows for activities associated with the use of animals taken by Alaska Natives for subsistence purposes. The special rule encourages cooperative management efforts between the Service and Alaska Natives by recognizing and providing for the cultural, social, and economic activities of Alaska Natives. It supports conservation of the DPS by discouraging excessive harvests and by encouraging self-regulation of the northern sea otter harvest by subsistence hunters in ways that meet the Service's goal for recovery of the DPS. The taking of northern sea otters and the creation, shipment, and interstate sale of authentic native handicrafts and clothing derived from such taking are already exempted under the Act, and neither the take nor the activities associated with the creation and sale of handicrafts and clothing or with cultural exchange have been identified as threats to the DPS. The Service recognizes the important contributions Alaska Natives may make to our recovery effort for this species, including, for example, information gained from biological samples derived from subsistence-harvested animals. Therefore, we find that the regulations are necessary and advisable for the conservation of the southwest Alaska DPS of the northern sea otter. Definition Change This rule also adopts a change to the definition of “Authentic native articles of handicrafts and clothing” similar to that adopted on August 17, 2005, under 50 CFR 18.3 (70 FR 48321). Specifically, this change eliminates the requirement in 50 CFR 17.3 for authentic native articles of handicrafts and clothing to have been commonly produced on or before December 28, 1973. The reasons for this change to the definition at 50 CFR 17.3 are similar to those provided in the final rule published on August 17, 2005, and are explained below. The Service's definition of “Authentic native articles of handicrafts and clothing” at 50 CFR 17.3 included a requirement that such items were commonly produced on or before December 28, 1973 (the effective date of the Act), and is similar to the previous definition for that term in 50 CFR 18.3 (Service regulations implementing the MMPA), which included a requirement that such items were commonly produced on or before December 21, 1972 (the effective date of the MMPA). These definitions reflected the Service's determination at the time that the exemptions provided Alaska Natives under both the Act and the MMPA were to protect traditional ways of subsistence rather than to provide a means of initiating commercial activities (55 FR 14973, April 20, 1990). However, in 1990, a number of parties challenged our definition at 50 CFR 18.3 as violating the MMPA. On July 17, 1991, in *Didrickson* v. *U.S. Department of the Interior,* the U.S. District Court for the District of Alaska ruled in favor of the Plaintiffs. The Court ruled that the Service's definition was inconsistent with the language and overall regulatory scheme of the MMPA. This decision was appealed to the Ninth Circuit Court of Appeals, which, on December 28, 1992, affirmed the District Court's ruling. The Circuit Court examined the statutory definition of “Authentic native articles of handicrafts and clothing” and found that there was no statutory requirement that those items be made or sold prior to the date of the MMPA. The cut-off date in the definition at 50 CFR 17.3 was similarly based on the effective date of the Act. The statutory definition of “Authentic native articles of handicrafts and clothing” in the Alaska Native exemption of the Act is identical to the definition in the MMPA. We believe that the analysis of the court in its ruling on our previous definition at 50 CFR 18.3 also applies to our definition at 50 CFR 17.3. Therefore, this final rule changes our definition at 50 CFR 17.3 to delete the provision that the item be commonly produced on or before December 28, 1973. Previous Federal Action On August 9, 2005, the Service published a final rule (70 FR 46366) listing the southwest Alaska DPS of northern sea otter as threatened under the Act. On that same day the Service also published a proposed rule for this DPS of northern sea otter under Section 4(d) of the Act (70 FR 46387). In that proposed rule, we requested all interested parties to submit comments and suggestions and opened a 60-day public comment period, which closed on October 11, 2005. Simultaneous with our notification of listing the southwest Alaska DPS of northern sea otter as threatened under the Act, we provided information regarding the proposed rule to Federal agencies, State agencies, and Alaska Native Tribes and tribal organizations to request comments. In accordance with Secretarial Order 3225 regarding the Act and subsistence uses in Alaska, we engaged in government-to-government consultation with Alaska Native organizations (ANOs). Specifically, we attended board meetings of TASSC and the Aleutian Pribilof Islands Association, Inc.; the former is a tribally-authorized ANO that represents the interests of sea otter hunters throughout the State of Alaska, while the latter is a Federally recognized ANO of the Aleut people in Alaska. During these Board meetings, we provided information on both the listing action and the proposed special rule. We also provided written notification to Tribal Organizations in Alaska regarding both the listing of the DPS of northern sea otters as well as the proposed special rule. We also provided a teleconference opportunity, in conjunction with the TASSC Board meeting, during which Alaska Natives and ANOs could provide us with information regarding the proposed rule. Summary of Comments and Recommendations During the public comment period on the proposed special rule, we received a total of 3 comments by electronic mail and 1 comment by regular mail as well as approximately 100 e-mails that were irrelevant to the proposed rule. We received comments from Alaska Native Tribes, ANOs, wildlife protection organizations, and a private citizen. Two commenters opposed the proposed rule, one commenter provided qualified support of the proposed rule, and one commenter supported the proposed rule without providing specific comments. We address the specific comments received on the proposed rule below. *Comment:* One commenter opposed the take of northern sea otters by Alaska Natives for any purpose. *Response:* Section 10(e) of the Act provides an exemption for Alaska Natives to allow for taking of species listed under the Act for subsistence purposes. This exemption is provided by statute. This rule does not affect the existing exemption or the ability of Alaska Natives to take southwest Alaska DPS northern sea otters. *Comment:* The Service has misapplied the exemption afforded Alaska Natives under the Act allowing take for subsistence purposes because northern sea otters are not being taken for subsistence purposes but “rather for the sole purpose of the creation of handicrafts.” *Response:* We disagree. The taking of sea otters from the DPS by Alaska Natives as it is currently conducted qualifies as take that is primarily for subsistence purposes. The existing regulations define subsistence as “the use of endangered or threatened wildlife for food, clothing, shelter, heating, transportation and other uses necessary to maintain the life of the taker of the wildlife, or those who depend upon the taker to provide them with such subsistence, and includes selling any edible portions of such wildlife in native villages and towns in Alaska for native consumption within native villages and towns” (50 CFR 17.3). The use of northern sea otter harvested by Alaska Natives is consistent with this definition, with pelts being used to make authentic Native handicrafts and clothing. These, in turn, may be used by the hunter, or gifted, traded, or sold once the pelt is made into an authentic Native handicraft or clothing. In addition, the exemption provides that the taking must be “primarily” for subsistence purposes and does not require that the taking be solely for subsistence purposes. It is correct, however, that any proposed taking by an Alaska Native that does not fit the requirements of the exemption would have to be separately authorized under the Act or otherwise would be a violation of law. *Comment:* The Service is authorizing take through this regulation without showing how the regulation is “necessary and advisable to provide for the conservation of [the] species,” as required under section 4(d) of the Act. *Response:* As explained in the preamble, this special rule does not authorize the taking of northern sea otters from the DPS. Rather, that taking is authorized under Section 10(e) of the Act, which provides an exception for taking and importation of threatened or endangered species by Alaska Natives if the taking is primarily for subsistence purposes and as long as the taking is not accomplished in a wasteful manner. That exception also allows the sale in interstate commerce of authentic native articles of handicrafts and clothing made from specimens taken under the exception. Because the Service is not authorizing take under this regulation, there is no need to show that take of sea otters from the DPS by Alaska Natives is necessary and advisable to provide for the conservation of the species. This rule allows those activities that are currently authorized under the MMPA and that are not covered by the Act's statutory exception, and the rule explains how the activities authorized under the rule—cultural exchange, limited types of travel, and the activities related to the creation and shipment of authentic native handicrafts and clothing—meet the standard as necessary and advisable to provide for the conservation of the species. *Comment:* The Service has failed to support their statement that the harvest by Alaska Natives from the DPS is not negatively or materially impacting the DPS. *Response:* Our analysis indicates that there is no relationship between the magnitude and geographic distribution of the sea otter harvest and the observed population decline in southwest Alaska (Table 1). For example, areas with some of the most severe population declines, *i.e.* , in excess of 90 percent, such as the Near Islands and Rat Islands in the western Aleutians, have no human settlements or subsistence harvest at all. With the exception of the Kodiak Archipelago where the harvest rate is 1.022 percent, the average reported harvest rates are less than one-tenth of one percent of the estimated population size. Based on these harvest levels for this DPS, which overall, including the Kodiak Archipelago, are 0.178-0.204 percent, or 2 orders of magnitude below the maximum net productivity rate of 20 percent used in our stock assessment reports (67 FR 62979, October 9, 2002), we have concluded that the subsistence harvest is not materially or negatively impacting the DPS. Table 1.—Reported Sea Otter Harvest by Geographic Survey Area in Southwest Alaska Geographic area Estimated abundance Average reported harvest (1996-2005) Average harvest rate (%) Aleutian Islands 3,311-8,742 0.6 0.007-0.018 North Alaska Peninsula 11,253 3.8 0.034 South Alaska Peninsula 8,568 5.5 0.064 Kodiak Archipelago 6,284 64.2 1.022 Kamishak Bay 6,918 0 0 All Areas 36,334-41,765 74.1 0.178-0.204 *Comment:* The Service has not complied with section 7(a)(2) of the Act, which requires Federal agencies to consult in order to insure that an agency action is not likely to jeopardize the continued existence of any endangered species or any threatened species or result in the destruction or adverse modification of designated critical habitat. *Response:* The Service is not required to consult on this rule under section 7(a)(2) of the Act. The development of protective regulations for a threatened species are an inherent part of the section 4 listing process. The Service must make this determination considering only the “best scientific and commercial data available.” A necessary part of this listing decision is also determining what protective regulations are “necessary and advisable to provide for the conservation of [the] species.” Determining what prohibitions and authorizations are necessary to conserve the species, like the listing determination of whether the species meets the definition of threatened or endangered, is not a decision that Congress intended to undergo section 7 consultation. *Comment:* The proposed rule is subject to the requirements of the National Environmental Policy Act (NEPA). *Response:* The rule is exempt from NEPA procedures. In 1983, upon recommendation of the Council on Environmental Quality, the Service determined that NEPA documents need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. The Service subsequently expanded this determination to section 4(d) rules. A 4(d) rule provides the appropriate and necessary prohibitions and authorizations for a species that has been determined to be threatened under section 4(a) of the Act. NEPA procedures would confuse matters by overlaying its own matrix upon the section 4 decisionmaking process. The opportunity for public comment—one of the goals of NEPA—is also already provided through section 4 rulemaking procedures. This determination was upheld in *Center for Biological Diversity* v. *U.S. Fish and Wildlife Service* , No. 04-04324 (N.D. Cal. 2005). *Comment:* One commenter supported the proposed rule but sought clarification regarding the scope of the proposed regulation in conjunction with the Alaska Native subsistence take exemption under the Act. *Response:* As explained in the preamble, this rule will align activities that may be conducted with southwest Alaska DPS sea otters taken a by Alaska Natives for subsistence purposes under the Act with those activities that are already exempted under the MMPA. Alaska Native subsistence users will be able to continue to conduct the full range of activities that they currently are able to conduct under the MMPA. Required Determinations Regulatory Planning and Review In accordance with the criteria in Executive Order 12866, this final rule is not a significant regulatory action. The Office of Management and Budget makes the final determination under Executive Order 12866. a. This rule will not have an annual economic impact of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. There are no compliance costs to any sector of the economy. A cost-benefit analysis is not required. We do not expect that any significant economic impacts would result from the promulgation of this special rule. The only expenses related to this will be to the Federal Government to write the rule and required Record of Compliance, and to publish the final rule in the **Federal Register** . b. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. d. This rule will not raise a novel legal issue. Regulatory Flexibility Act Under the Regulatory Flexibility Act

(RFA)(as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities, and also amended the RFA to require a certification statement. Based on the information that is available to us at this time, we are certifying that this special rule to allow for the limited, noncommercial import and export of items that qualify as authentic native articles of handicrafts and clothing that were derived from sea otters legally taken for subsistence purposes by Alaska Natives from the listed population; the cultural exchange by Alaska Natives with Native inhabitants of Russia, Canada, or Greenland; and limited types of travel, as well as activities conducted by persons registered as an agent or tannery under existing law, will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. According to the Small Business Administration (SBA), small entities include small organizations, including any independent nonprofit organization that is not dominant in its field, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. The SBA defines small businesses categorically and has provided standards for determining what constitutes a small business at 13 CFR 121.201 (also found at *http://www.sba.gov/size/* ), which the RFA requires all Federal agencies to follow. To determine if potential economic impacts to these small entities would be significant, we considered the types of activities that might trigger regulatory impacts if the activities were to be allowed as proposed. However, because this special rule maintains the status quo regarding activities that had previously been authorized or exempted under the MMPA, we are certifying that this rule does not have a significant economic impact on a substantial number of small entities, and thus a regulatory flexibility analysis is not required. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2). This rule: a. Does not have an annual effect on the economy of $100 million or more. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.): a. This rule will not significantly or uniquely affect small governments. A Small Government Agency Plan is not required. b. This rule will not produce a Federal mandate of $100 million or greater in any year. As such, it is not a significant regulatory action under the Unfunded Mandates Reform Act. Takings In accordance with Executive Order 12630, this rule does not have significant takings implications. We have determined that the rule has no potential takings of private property implications as defined by this Executive Order because, if implemented, this special rule will maintain the status quo regarding activities currently allowed under the MMPA. A takings implication assessment is not required. Federalism In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. This rule will not have substantial direct effects on the State, in the relationship between the Federal Government and the State, or on the distribution of power and responsibilities among the various levels of government. Civil Justice Reform In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Paperwork Reduction Act This final rule does not contain any new collections of information that require approval by the Office of Management and Budget

(OMB)under 44 U.S.C. 3501 *et seq.* The regulation will not impose new record-keeping or reporting requirements on State or local governments, individuals, and businesses, or organizations. We may not conduct or sponsor and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, Secretarial Order 3225, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a Government-to-Government basis. We have evaluated possible effects on federally recognized Alaska Native tribes. Because this rule aligns activities that are allowed under the Act with activities that are currently allowed under the MMPA, we have determined that there are no negative effects to Alaska Natives. Energy Supply, Distribution or Use (Executive Order 13211) On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866 and it is not expected to have any effect on energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.3, revise the definition for “Authentic native articles of handicrafts and clothing” as follows: § 17.3 Definitions. *Authentic native articles of handicrafts and clothing* means items made by an Indian, Aleut, or Eskimo that are composed wholly or in some significant respect of natural materials and are significantly altered from their natural form and are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass-copying devices. Improved methods of production utilizing modern implements such as sewing machines or modern techniques at a tannery registered pursuant to § 18.23(c) of this subchapter (in the case of marine mammals) may be used as long as no large-scale mass production industry results. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as cooperatives, is permitted as long as no large-scale mass production results; 3. Amend § 17.40 by adding paragraph

(p)to read as follows: § 17.40 Special rules—mammals.

(p)Northern sea otter ( *Enhydra lutris kenyoni* ).

(1)*To what population of sea otter does this special rule apply?* The regulations in paragraph

(p)of this section apply to the southwest Alaska distinct population segment

(DPS)of the northern sea otter as set forth at § 17.11(h) of this part.

(2)*What provisions apply to this DPS?* Except as noted in paragraph (p)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the southwest Alaska DPS of the northern sea otter.

(3)*What additional activities are allowed for this DPS?* In addition to the activities authorized under paragraph (p)(2) of this section, you may conduct any activity authorized or exempted under the Marine Mammal Protection Act (16 U.S.C. 1361 *et seq.* ) with a part or product of a southwest Alaska DPS northern sea otter, provided that:

(i)The product qualifies as an authentic native article of handicrafts or clothing as defined in § 17.3 of this part; and

(A)It was created by an Indian, Aleut, or Eskimo who is an Alaskan Native, and

(B)It is not being exported or imported for commercial purposes; or

(ii)The part or product is owned by an Indian, Aleut, or Eskimo who is an Alaskan Native and resides in Alaska, or by a Native inhabitant of Russia, Canada, or Greenland, and is part of a cultural exchange; or

(iii)The product is owned by a Native inhabitant of Russia, Canada, or Greenland, and is in conjunction with travel for noncommercial purposes; or

(iv)The part or product has been received or acquired by a person registered as an agent or tannery under § 18.23 of this subchapter.

(4)*What other wildlife regulations may apply?* All applicable provisions of 50 CFR parts 14, 18, and 23 must be met. Dated: July 7, 2006. Matt Hogan, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E6-13322 Filed 8-14-06; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 051104293 5344 02; I.D. 080806F] Fisheries of the Northeastern United States; Summer Flounder Fishery; Commercial Quota Harvested for Connecticut AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Closure of commercial fishery SUMMARY: NMFS announces that the summer flounder commercial quota available to Connecticut has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in Connecticut for the remainder of calendar year 2006, unless additional quota becomes available through a transfer. Regulations governing the summer flounder fishery require publication of this notification to advise Connecticut that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing summer flounder in Connecticut. DATES: Effective 0001 hours, August 12, 2006, through 2400 hours, December 31, 2006. FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Management Specialist,

(978)281-9341 SUPPLEMENTARY INFORMATION: Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100. The initial total commercial quota for summer flounder for the 2006 calendar year was set equal to 14,154,000 lb (6,420 mt) (70 FR 77061, December 29, 2005). The percent allocated to vessels landing summer flounder in Connecticut is 2.25708 percent, resulting in a commercial quota of 319,467 lb (144,910 kg). The 2006 allocation was reduced to 314,649 lb (142,725 kg) due to research set-aside. Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state's commercial quota has been harvested. NMFS then publishes a notification in the **Federal Register** to advise the state and to notify Federal vessel and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is available for landing summer flounder in that state. The Regional Administrator has determined, based upon dealer reports and other available information, that Connecticut has harvested its quota for 2006. The regulations at § 648.4(b) provide that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, August 12, 2006, further landings of summer flounder in Connecticut by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2006 calendar year, unless additional quota becomes available through a transfer and is announced in the **Federal Register** . Effective 0001 hours, August 12, 2006, federally permitted dealers are also notified that they may not purchase summer flounder from federally permitted vessels that land in Connecticut for the remainder of the calendar year, or until additional quota becomes available through a transfer. Classification This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: August 10, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-6928 Filed 8-10-06; 1:20 pm]

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