Rules and Regulations. Notice of proposed rulemaking (NPRM)
55,429 words·~252 min read·
/register/2007/03/08/07-1085A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 3510-22-S 72 45 Thursday, March 8, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27494; Directorate Identifier 2006-NM-269-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found that both fuel level control units
(LCU)and their associated harnesses throughout the aircraft does not comply with the requirements of proper segregation, in order to preclude a possible ignition source in the vicinity of the fuel tanks, as required by SFAR (Special Federal Aviation Regulation) 88 regulations. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by April 9, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2125; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27494; Directorate Identifier 2006-NM-269-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2006-09-05, dated October 18, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found that both fuel level control units
(LCU)and their associated harnesses throughout the aircraft does not comply with the requirements of proper segregation, in order to preclude a possible ignition source in the vicinity of the fuel tanks, as required by SFAR (Special Federal Aviation Regulation) 88 regulations. The MCAI requires replacing the fuel LCU 1 and LCU 2; reworking the LCU 1 and LCU 2 supports; and segregating, replacing, and reworking some harnesses. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information EMBRAER has issued Service Bulletin 145LEG-28-0020, dated February 18, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 2 products of U.S. registry. We also estimate that it would take about 60 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $6,931 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $23,462, or $11,731 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. *For the reasons discussed above, I certify this proposed regulation:* 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **EMPRESA BRASILEIRA DE AERONAUTICA S.A. (EMBRAER):** Docket No. FAA-2007-27494; Directorate Identifier 2006-NM-269-AD. Comments Due Date
(a)We must receive comments by April 9, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-135BJ airplanes, certificated in any category, serial numbers 145484, 145540, 145555, 145706, and 145711. Subject
(d)Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: ``It has been found that both fuel level control units
(LCU)and their associated harnesses throughout the aircraft does not comply with the requirements of proper segregation, in order to preclude a possible ignition source in the vicinity of the fuel tanks, as required by SFAR (Special Federal Aviation Regulation) 88 regulations.'' The MCAI requires replacing the fuel LCU 1 and LCU 2; reworking the LCU 1 and LCU 2 supports; and segregating, replacing, and reworking some harnesses. Actions and Compliance
(f)Within 48 months or 5,000 flight hours after the effective date of this AD, whichever occurs first, unless already done, do the following actions: Replace LCU 1 and LCU 2 by new ones bearing P/N (part number) 367-340-001, rework the LCU 1 and LCU 2 supports, rework and segregate electrical harnesses W102S and W102P, replace harnesses W164 and W221, and route electrical harnesses W1614 and W1620 segregating W1614, according to the detailed instructions and procedures described in EMBRAER Service Bulletin 145LEG-28-0020, dated February 18, 2005. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, *ATTN:* Dan Rodina, Aerospace Engineer, 1601 Lind Avenue, SW., Renton, Washington 98057-3356, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Brazilian Airworthiness Directive 2006-09-05, effective October 18, 2006; and EMBRAER Service Bulletin 145LEG-28-0020, dated February 18, 2005, for related information. Issued in Renton, Washington, on March 1, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4128 Filed 3-7-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-26973; Directorate Identifier 2007-CE-002-AD] RIN 2120-AA64 Airworthiness Directives; REIMS AVIATION S.A. Model F406 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: * * * important corrosion found on the ailerons bearings. This condition, if left uncorrected, could result in the loss of the roll control on the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by April 9, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4144; *fax:*
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-26973; Directorate Identifier 2007-CE-002-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Direction générale de l’aviation civile, which is the aviation authority for France, has issued AD No F-2005-177, dated November 9, 2005 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: * * * important corrosion found on the ailerons bearings. This condition, if left uncorrected, could result in the loss of the roll control on the airplane. The MCAI requires: Within the next 100 flight hours or 3 months after the effective date of this AD, whichever occurs first: —Inspect the ailerons brackets and perform the lubrication of the ailerons bearings in accordance with the accomplishment instructions of the REIMS AVIATION INDUSTRIES Service Bulletin No. F406-59. —Update the AMM Chapter 5-10-01 by inserting the Temporary Revision No 6 and amend consequently the operator maintenance program. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information REIMS AVIATION S.A. has issued REIMS AVIATION INDUSTRIES Service Bulletin No F406-59, dated October 24, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $100 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,380, or $340 per product. In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $100, for a cost of $340 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **REIMS AVIATION S.A.:** Docket No. FAA-2007-26973; Directorate Identifier 2007-CE-002-AD. Comments Due Date
(a)We must receive comments by April 9, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Model F406 airplanes, serial numbers F406-0001 through F406-0092, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 57: Wings. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: * * * important corrosion found on the ailerons bearings. This condition, if left uncorrected, could result in the loss of the roll control on the airplane. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within the next 100 flight hours or 3 months, whichever occurs first, after the effective date of this AD, and thereafter repetitively during a period not to exceed 12 months, inspect the aileron brackets and bearings and perform the lubrication of the aileron bearings in accordance with REIMS AVIATION INDUSTRIES Service Bulletin No. F406-59, dated October 24, 2005.
(2)If corrosion is found during any inspection required in paragraph (f)(1) of this AD, before further flight, replace the damaged parts in accordance with REIMS AVIATION INDUSTRIES Service Bulletin No. F406-59, dated October 24, 2005. Note 1: We established the repetitive inspection times of this AD so that they may coincide with annual inspections. Note 2: We encourage you to put Reims temporary revision No. 6 into the maintenance program of the F406 airplane (chapter 5 of the maintenance manual). FAA AD Differences Note 3: This AD differs from the MCAI and/or service information as follows: We added repetitive inspection requirements in this proposed AD to coincide with the maintenance requirement in the service bulletin. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, Standards Staff, FAA, *ATTN:* Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*
(816)329-4144; *fax:*
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to Direction ge ne rale de l'aviation civile AD No F-2005-177, dated November 9, 2005; and REIMS AVIATION INDUSTRIES Service Bulletin No F406-59, dated October 24, 2005, for related information. Issued in Kansas City, Missouri, on March 1, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4131 Filed 3-7-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 358 [Docket No. RM07-1-000] Standards of Conduct for Transmission Providers; Notice of Extension of Time February 28, 2007. AGENCY: Federal Energy Regulatory Commission; DOE. ACTION: Notice of Proposed Rulemaking; extension of comment period. SUMMARY: On February 28, 2007, the Commission issued a notice of proposed rulemaking proposing permanent regulations regarding the standards of conduct consistent with the decision of the United States Court of Appeals of the District of Columbia in *National Fuel Gas Supply Corporation* v. *FERC,* 468 F.3d 831 (2006), regarding natural gas pipelines. The Commission is extending the comment period on the Notice of Proposed Rulemaking at the request of the American Gas Association, the American Public Power Association, the Edison Electric Institute, the Electric Power Supply Association, the Interstate Natural Gas Association of America, the Large Public Power Council and the Natural Rural Electric Cooperative Association. DATES: Comments must be filed on or before March 30, 2007. Reply comments must be filed on or before April 30, 2007. FOR FURTHER INFORMATION CONTACT: Eric Ciccoretti, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Telephone:
(202)502-8493, E-mail: *eric.ciccoretti@ferc.gov.* Deme Anas, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Telephone:
(202)502-8178, E-mail: *demetra.anas@ferc.gov.* Stuart Fischer, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Telephone:
(202)502-8517, E-mail: *stuart.fischer@ferc.gov.* SUPPLEMENTARY INFORMATION: Notice Extending Comment and Reply Comment Period On February 27, 2007, the American Gas Association, the American Public Power Association, the Edison Electric Institute, the Electric Power Supply Association, the Interstate Natural Gas Association of America, the Large Public Power Council, and the National Rural Electric Cooperative Association, filed jointly for an extension of time to file comments and reply comments in response to the Commission's Notice of Proposed Rulemaking issued January 18, 2007 in the above-captioned proceeding. Standards of Conduct for Transmission Providers, 118 FERC ¶ 61,031, 72 FR 3958 (Jan. 29, 2007), FERC Stats. & Regs. ¶ 32,611 (2007). Upon consideration, the date for filing comments in this proceeding is extended to and including March 30, 2007 and the date for filing reply comments is extended to and including April 30, 2007. Magalie R. Salas, Secretary. [FR Doc. E7-4117 Filed 3-7-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 920 [MD-055-FOR] Maryland Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing on proposed amendments. SUMMARY: We are announcing receipt of a proposed amendment to the Maryland regulatory program (the Maryland program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The program amendment consists of changes to the Maryland Annotated Code
(MAC)to increase the end of month balance cap of the Bond Supplement Reserve (Reserve) within the Bituminous Coal Open-Pit Mining Reclamation Fund. Maryland submitted these proposed amendments on its own initiative to improve the ability of the Maryland Department of the Environment to finance reclamation projects by increasing the amounts available in the Reserve. DATES: We will accept written comments on this amendment until 4 p.m. (local time), on April 9, 2007. If requested, we will hold a public hearing on the amendment on April 2, 2007. We will accept requests to speak at a hearing until 4 p.m. (local time), on March 23, 2007. ADDRESSES: You may submit comments, identified by “MD-055-FOR,” by any of the following methods: • *E-mail:* *grieger@osmre.gov* . Include “MD-055-FOR” in the subject line of the message; • *Mail/Hand Delivery:* Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 415 Market Street, Room 304, Harrisburg, PA 17101; Telephone:
(717)782-4849 ext. 11; • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments. *Instructions:* All submissions received must include the agency docket number “MD-055-FOR” for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” Section in this document. You may also request to speak at a public hearing by any of the methods listed above or by contacting the individual listed under FOR FURTHER INFORMATION CONTACT . *Docket:* You may review copies of the Maryland program, this submission, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may also receive one free copy of the submission by contacting OSM's Pittsburgh Field Division Office. Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 415 Market Street, Room 304, Harrisburg, PA 17101, Telephone:
(717)782-4849 ext. 11. E-mail: *grieger@osmre.gov* . Mr. C. Edmon Larrimore, Program Manager, Mining Program, Maryland Department of the Environment,1800 Washington Boulevard, Baltimore, Maryland 21230, Telephone:
(410)537-3557 or 1-800-633-6101. FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Telephone:
(717)782-4849 ext. 11. E-mail: *grieger@osmre.gov* . SUPPLEMENTARY INFORMATION: I. Background on the Maryland Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Maryland Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * *a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act* * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Maryland program on December 1, 1980. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 1, 1980, **Federal Register** (45 FR 79431). You can also find later actions concerning Maryland's program and program amendments at 30 CFR 920.12, 920.15, and 920.16. II. Description of the Proposed Amendment By an undated letter received on January 29, 2007 (Administrative Record Number MD-587-00), Maryland sent us an amendment to revise its program under SMCRA (30 U.S.C. 1201 *et seq.* ). The amendment revises MAC provisions to increase the end of month balance cap of the Bond Supplement Reserve within the Bituminous Coal Open-Pit Mining Reclamation Fund. Maryland submitted these proposed amendments on its own initiative to improve the ability of the Maryland Department of the Environment to finance reclamation projects by increasing the amounts available in the Reserve. In its submittal of this amendment, Maryland stated that this action will improve the ability of the Maryland Department of the Environment to finance reclamation projects by increasing the amounts available in the Reserve. It also addresses findings and recommendations found in the Actuarial Study approved by OSM in the **Federal Register** dated May 13, 1998 (63 FR 26451). This Bond Supplement Reserve Fund was established for reclamation purposes when the original bond is not sufficient to reclaim the site for which it was posted in the event of forfeiture. A surcharge is assessed for each ton of coal removed by the open-pit or strip method. Part of that surcharge is deposited into the Bituminous Coal Open-Pit Mining Reclamation Fund and another part is remitted to the county. These funds are used to supplement forfeited bonds to enable the mine site to be reclaimed. An additional surcharge for each ton is assessed and credited to the county in which the mining is occurring. A summary of the proposed changes follows: 1. MAC 15-517(c) Subsection
(c)provides as follows:
(c)When the amount of money in the bond supplement reserve equals or exceeds $300,000 at the end of the month, deposits into the reserve of the amounts provided in subsection (b)(1) and
(2)of this section shall end temporarily. Maryland proposes to revise Subsection
(c)by increasing the end-of-month balance cap of the Bond Supplement Reserve Fund from $300,000 to $750,000. As amended, Subsection
(c)provides as follows:
(c)When the amount of money in the bond supplement reserve equals or exceeds $750,000 at the end of the month, deposits into the reserve of the amounts provided in subsection (b)(1) and
(2)of this section shall end temporarily. 2. MAC 15-517(d)(1) Subsection (d)(1) provides as follows:
(1)The amount of money in the bond supplement reserve equals or exceeds $300,000 at the end of the month; Maryland proposes to raise the end-of-month balance cap of the Bond Supplement Reserve Fund from $300,000 to $750,000. As amended, Subsection (d)(1) provides as follows:
(1)The amount of money in the bond supplement reserve equals or exceeds $750,000 at the end of the month; 3. MAC 15-517(e) Subsection
(e)reads as follows:
(e)At the end of any month when the amount of money in the bond supplement reserve is reduced below $200,000: Maryland proposes to raise the amount from $200,000 to $500,000 because the end-of-month balance cap that triggers the resumption of surcharges and deposits needed to be increased as well. As amended, Subsection
(e)provides as follows:
(e)At the end of any month when the amount of money in the bond supplement reserve is reduced below $500,000: III. Public Comment Procedures Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the submission satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Maryland program. Written Comments Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Pittsburgh Field Division Office may not be logged in. Electronic Comments Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: MD-055-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Pittsburgh Field Division Office at
(717)782-4849 ext. 11. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on March 23, 2007. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. Public Meeting If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the Administrative Record. IV. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempt from review by the Office of Management and Budget under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)Considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior 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.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(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. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations. List of Subjects in 30 CFR Part 920 Intergovernmental relations, Surface mining, Underground mining. Dated: February 13, 2007. H. Vann Weaver, Acting Regional Director, Appalachian Region. [FR Doc. E7-4147 Filed 3-7-07; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF DEFENSE Department of the Air Force 32 CFR Part 903 [Docket No. USAF-2007-0001] RIN 0701-AA72 Air Force Academy Preparatory School AGENCY: DoD, USAF. ACTION: Proposed rule. SUMMARY: This proposed rule tells how to apply for the Air Force Academy Preparatory School. It also explains the procedures for selection, disenrollment, and assignment. This rule has been updated to identify USAFA's revised mission statement, new selection criteria and updates of associated Air Force Instructions. DATES: Interested parties should submit written comments on or before May 7, 2007. ADDRESSES: You may submit comments, identified by docket number and or RIN number and title, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://www.regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Mr. Scotty Ashley at
(703)695-3594, *scotty.Ashley@pentagon.af.mil.* SUPPLEMENTARY INFORMATION: Executive Order 12866, “Regulatory Planning and Review It has been determined that 32 CFR part 903 is not a significant regulatory action. * This rule does not:*
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) It has been certified the 32 CFR part 903 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule * * * Public Law 95-511, Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been certified that 32 CFR part 903 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). Federalism (Executive Order 13132) It has been certified that 32 CFR part 903 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1)The States;
(2)The relationship between the National Government and the States; or
(3)The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 903 Military academy; military personnel. Therefore, for the reasons set forth in the preamble, 32 CFR part 903 is proposed to be revised to read as follows: PART 903—AIR FORCE ACADEMY PREPARATORY SCHOOL Sec. 903.1 Mission. 903.2 Eligibility Requirements. 903.3 Selection Criteria. 903.4 Application Process and Procedures. 903.5 Reserve Enlistment Procedures. 903.6 Reassignment of Air Force Members to Become Cadet Candidates at the Preparatory School. 903.7 Reassignment of Cadet Candidates Who Graduate From the Preparatory School With an Appointment to U.S. Air Force Academy (USAFA). 903.8 Cadet Candidates Disenrollment. 903.9 Cadet Records and Reassignment. Authority: 10 U.S.C. 8012, except as otherwise noted. Note: This part is derived from AFI 36-3021, July 1, 1994. Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein. § 903.1 Mission. The mission of the United States Air Force Academy Preparatory School (USAFA/PL) is to motivate, prepare, and evaluate selected candidates in an educational, military, moral, and physical environment, to perform successfully and enhance diversity at USAFA. § 903.2 Eligibility Requirements.
(a)For admission to the HQ USAFA/PL, applicants must be:
(1)At least 17 and no more than 22 years old by 1 July of the year of admission.
(2)A citizen or permanent resident of the United States able to obtain citizenship (or Secretary of Defense waiver allowed by 10 U.S.C. 532(f)) by projected commissioning date.
(3)Unmarried and have no dependents.
(4)Of high moral character. Applicants must have no record of Uniform Code of Military Justice convictions or civil offenses beyond minor violations; no history of drug or alcohol abuse; and no prior behaviors, activities, or associations incompatible with USAF standards.
(5)Medically qualified for appointment to the U.S. Air Force Academy (USAFA).
(6)A member of the armed services or eligible to enlist in the U.S. Air Force Reserve.
(b)Normally, applicants must not have previously attended college on a full-time basis or attended a U.S. Service Academy or a U.S. Service Academy Preparatory School. The Headquarters USAFA Registrar's Office (HQ USAFA/RR) determines an applicant's status in this regard.
(c)Every applicant must be an active candidate in the USAFA admissions program, normally through one of following:
(1)Nominated by a source specified in public law.
(2)Identified by the USAFA as fulfilling institutional needs.
(d)Members of the Air Force Reserve or Air National Guard
(ANG)must agree to active duty service if admitted to the HQ USAFA/PL. Admitted ANG personnel first transfer to the Air Force Reserves before leaving their place of residence and being called to active duty.
(e)Regular and reserve members of the Armed Forces and the National Guard must have completed basic training.
(f)Regular members of the Armed Forces must have at least 1 year retainability when they enter the HQ USAFA/PL. § 903.3 Selection Criteria.
(a)Cadet candidates for the HQ USAFA/PL are selected on the basis of demonstrated character, test scores, medical examination, prior academic record, recommendation of the organization commander (if prior service), and other similar reports or records. USAFA is authorized to make selections IAW SECAF guidance including but not limited to selection from among enlisted personnel and recruited athletes. Each applicant must:
(1)Achieve satisfactory scores on the Scholastic Aptitude Test
(SAT)or the American College Testing Program (ACT).
(2)Take and pass a medical evaluation administered through the Department of Defense Medical Evaluation Review Board (DODMERB).
(3)Have an acceptable academic record as determined by HQ USAFA/RR. Each applicant must furnish a certified transcript from each high school or civilian preparatory school attended. Applicants should send transcripts to HQ USAFA/RR, 2304 Cadet Drive, Suite 200, USAF Academy CO 80840-5025.
(4)Take the Candidate Fitness Assessment.
(b)HQ USAFA/RR oversees the holistic review of each viable candidate's record by a panel. This holistic review may include consideration of factors that would enhance diversity at USAFA, such as unique academic abilities, language skills, demonstrated leadership skills, foreign cultural knowledge, athletic prowess, flying aptitude, uncommon life experiences, demonstrated moral or physical courage or other performance-based factors.
(c)HQ USAFA/RR also examines reports and records that indicate an applicant's aptitude, achievement, or ability to graduate from the HQ USAFA/PL in the selection process.
(d)HQ USAFA/RR includes Preparatory School selection guidelines in the “Criteria and Procedures for Air Force Academy Appointment, Class of 20XX” (Contract) and submits for Superintendent approval.
(e)For members of the Armed Forces and the National Guard, HQ USAFA/RR also considers letters of recommendation from applicants' unit commanders. § 903.4 Application Process and Procedures.
(a)Regular and Reserve members of the Air Force must send their applications to: HQ USAFA/RR, 2304 Cadet Dr, Suite 200, USAF Academy CO 80840-5025, no later than 31 January for admission the following summer. Those otherwise nominated to the Air Force Academy must complete all steps of admissions by 15 April.
(b)Regular and Reserve members of the Air Force must complete AF Form 1786 and submit it to their unit commander.
(c)Regular and Reserve members of the Army, Navy, or Marine Corps, as well as members of the National Guard, must submit a letter of application through their unit commander.
(d)Civil Air Patrol
(CAP)cadets send their applications to HQ USAFA/RR and must apply to CAP National Headquarters by 31 January for nomination.
(e)HQ USAFA/RR automatically considers civilian candidates for admission who have a nomination to the USAFA, but were not selected. § 903.5 Reserve Enlistment Procedures.
(a)Civilians admitted to the HQ USAFA/PL take the oath of enlistment on the date of their initial in-processing at the HQ USAFA/PL. Their effective date of enlistment is the date they take this oath.
(b)Civilians who enlist for the purpose of attending the HQ USAFA/PL will be awarded the rank of E-1. These cadet candidates are entitled to the monthly student pay at the same rate as USAFA cadets according to United States Code Title 37, Section 203. § 903.6 Reassignment of Air Force Members to Become Cadet Candidates at the Preparatory School. Selected Regular Air Force members at technical training schools remain there in casual status until the earliest reporting date for the HQ USAFA/PL. Students must not leave their training school without coordinating with HQ USAFA/RR. § 903.7 Reassignment of Cadet Candidates who Graduate from the Preparatory School with an Appointment to U.S. Air Force Academy (USAFA). The following conditions apply to USAFA Cadet Enrollment for Cadet Candidates who graduate from the Preparatory School with an appointment to the USAFA:
(a)The Air Force releases cadet candidates entering the USAFA from active duty and reassigns them to active duty as Air Force Academy cadets, effective on their date of entry into the USAFA in accordance with one of these authorities:
(1)The Department of Air Force letter entitled Members of the Armed Forces Appointed to a Service Academy, 8 July 1957.
(2)Title 10, United States Code, Sections 516 and 523. Air Force Instruction
(AFI)36-3208, Administrative Separation of Airmen.
(b)The Air Force discharges active Reserve cadet candidates who enlisted for the purpose of attending the HQ USAFA/PL in accordance with AFI 36-3208 and reassigns them to active duty as Air Force Academy cadets, effective on their date of entry into the USAFA. § 903.8 Cadet Candidate Disenrollment.
(a)In accordance with AFI 36-3208, the Commander, HQ USAFA/PL, may disenroll a student who:
(1)Fails to meet and maintain HQ USAFA/PL educational, military, character, or physical fitness standards.
(2)Fails to demonstrate adaptability and suitability for participation in USAFA educational, military, character, or physical training programs.
(3)Displays unsatisfactory conduct.
(4)Fails to meet statutory requirements for admission to the USAFA, for example:
(i)Marriage or acquiring legal dependents.
(ii)Medical disqualification.
(iii)Refusal to serve as a commissioned officer in the U.S. Armed Forces.
(5)Requests disenrollment.
(b)The HQ USAFA/PL commander may also disenroll a student when it is determined that the student's retention is not in the best interest of the Government.
(c)The military personnel flight (10 MSS/DPM) processes Regular Air Force members for reassignment if:
(1)They are disenrolled from the HQ USAFA/PL.
(2)They fail to obtain or accept an appointment to a U.S. Service Academy.
(d)The Air Force reassigns Air Force Reserve cadet candidates who are disenrolled from the HQ USAFA/PL or who fail to obtain or accept an appointment to an U.S. Service Academy in either of two ways under AFI 36-3208:
(1)Discharges them from the United States Air Force without any further military obligation if they were called to active duty solely to attend the HQ USAFA/PL.
(2)Releases them from active duty and reassigns them to the Air Force Reserve Personnel Center if they were released from Reserve units to attend the HQ USAFA/PL.
(e)The National Guard (Army or Air Force) releases cadet candidates from active duty and reassigns them to their State Adjutant General.
(f)The Air Force reassigns Regular and Reserve personnel from other Services back to their unit of origin to complete any prior service obligation if:
(1)They are disenrolled from the HQ USAFA/PL.
(2)They fail to obtain or accept an appointment to the USAFA. § 903.9 Cadet Records and Reassignment Forms.
(a)Headquarters USAFA Cadet Personnel (HQ USAFA/DPY) maintains records of cadet candidates who enter the USAFA until they are commissioned or disenrolled.
(b)10 MSS/DPM will send records of Regular Air Force personnel who enter one of the other Service Academies to HQ Air Force Personnel Center (HQ AFPC) for processing. Bao-Anh Trinh, Air Force Federal Register Liaison Officer. [FR Doc. E7-4129 Filed 3-7-07; 8:45 am] BILLING CODE 5001-05-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [CGD05-06-074] RIN 1625-AA01 Anchorage G, Hampton Flats (Naval Explosives Anchorage) Hampton Roads, VA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes changing the boundaries of Hampton Roads Explosive Anchorage Golf in response to a widening of the Norfolk Entrance Reach by the U. S. Army Corps of Engineers (USACE) undertaken to improve deep draft vessel traffic maneuverability, and to remove the shallow water area in the Hampton Bar Flats from the boundaries of this deepwater anchorage. DATES: Comments and related material must reach the Coast Guard on or before April 9, 2007. ADDRESSES: You may mail comments and related material to Commander (dpw), Fifth Coast Guard District, 431 Crawford Street, Room 100, Portsmouth, VA 23704-5004. The telephone number is
(757)398-6360. You may Email your comments to *Albert.L.Grimes@uscg.mil.* Commander (dpw), Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Albert Grimes, Fifth Coast Guard District Prevention and Waterways,
(757)398-6360, E-mail: *Albert.L.Grimes@uscg.mil.* SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-06-074), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address listed under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose On Thursday, 20 April 2006, the Coast Guard was informed by the U.S. Army Corps of Engineers of its intention to widen the Norfolk Entrance Reach project in the vicinity of Hampton Roads Golf Anchorage to better facilitate the safe passage of deep draft vessel traffic in and out of the Port of Hampton Roads. USACE studies found that deep draft ships routinely exited the federal navigation project when turning into or out of the Elizabeth River and Norfolk Entrance Reach. USACE widened the turn area ensuring project depths are available to ships while maneuvering through this turn. As a result of this channel widening a small portion of Golf Anchorage will be lost. During the Coast Guard's subsequent review of the boundaries of Golf Anchorage, it was also determined that a significant portion of shallow water in the Hampton Bar Flats area was included as a part of this anchorage area. The Coast Guard believes that this shallow water area is not required to serve the needs of deep draft vessels that Golf Anchorage was designed for and therefore should be removed from the boundaries of the Golf Anchorage. Discussion of Proposed Rule The USACE widening of the Norfolk Harbor Reach federal navigation channel necessitates a change in the size and boundaries of Anchorage Golf. This change is necessary to facilitate the safe passage of inbound and outbound deep draft vessels. Removal of the shallow water area in Hampton Bar Flats was included in this proposed change to the anchorage as the Coast Guard determined that this area is not required to serve the needs of the deep draft vessels the anchorage was designed to serve. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The effect of this proposed action merely makes minor changes to the boundaries of the existing anchorage area. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. The area removed includes unusable shallow areas and is so small it would not otherwise impact the ability of vessels to use the anchorage. It would in fact create additional opportunities for the numerous small commercial fishing and recreational vessels to access a greater portion of the Hampton Bar Flats without impacting the regulated anchorage area. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed 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 proposed 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 M16475.1D, and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination 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. The rule deals with reducing the size of an existing anchorage area. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph 34(f) of the Instruction, and “Environmental Analysis Check List” is not required for this rule. Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble the Coast Guard proposes to amend 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority for part 110 continues to read as follows: Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, and 2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1. 2. Revise part 110.168 to read as follows: 110.168 Hampton Roads, Virginia and adjacent waters (Datum: NAD 83).
(a)*Anchorage Grounds* . (a)(3)(iii) Anchorage G, Hampton Flats (Naval Explosives Anchorage). The waters bounded by a line connecting the following points: Latitude Longitude 36°58′50.9″ N 76°19′33.7″ W 36°58′50.3″ N 76°19′39.4″ W 36°58′19.3″ N 76°20′18.2″ W 36°58′16.5″ N 76°20′18.6″ W 36°58′07.3″ N 76°20′31.3″ W 36°57′42.0″ N 76°21′06.3″ W 36°57′35.2″ N 76°21′25.6″ W 36°57′31.8″ N 76°22′00.6″ W 36°58′07.6″ N 76°22′01.7″ W 36°58′47.2″ N 76°21′04.7″ W 36°59′17.0″ N 76°20′20.7″ W 36°59′25.0″ N 76°20′05.4″ W Dated: February 14, 2007. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E7-4111 Filed 3-7-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [CGD05-06-064] RIN 1625-AA01 Anchorage Grounds, Hampton Roads, VA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes updating the coordinates of the boundaries of the anchorages listed below from the former North American Datum 1927 (NAD 27) standard to the current North American Datum 1983 (NAD 83) standard. These changes will not affect the locations or size of the anchorages on the NOAA charts as published by NOAA. The proposed change simply updates the anchorage positions in 33 CFR part 110 to match the current datum in use on the applicable charts, which are NAD 83. DATES: Comments and related material must reach the Coast Guard on or before April 9, 2007. ADDRESSES: You may mail comments and related material to Commander (dpw), Fifth Coast Guard District, 431 Crawford Street, Room 100, Portsmouth, VA 23704-5004. The telephone number is
(757)398-6360. You may e-mail your comments to *Albert.L.Grimes@uscg.mil.* Commander (dpw), Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at
(dpw)between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Albert Grimes, Fifth Coast Guard District Prevention and Waterways,
(757)398-6360, e-mail: *Albert.L.Grimes@uscg.mil.* SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-06-064), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address listed under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose On May 25, 2005, the Coast Guard published a final rule (70 FR 29953) that provided changes and improvements to many of the anchorages in the Hampton Roads area. Coordinates for anchorages changed or improved as part of this final rule were also updated from their former NAD 27 position to a new NAD 83 position. Anchorages discussed in this NPRM were listed as “No Change,” while in another section of the final rule the reader was led to believe that the positions of these “No Change” anchorages had also been changed from NAD 27 to NAD 83. However, they are in fact still listed in 33 CFR part 110.168 as NAD 27 positions. This proposed rule will ensure that all of the Hampton Roads Anchorages listed in 33 CFR part 110.168 are NAD 83 positions. Discussion of Proposed Rule The anchorages that will be updated to NAD 83 datum are on the following table: Current Anchorage [33 CFR 110.168(a)] A—Cape Henry Naval Anchorage
(1)Change to NAD 83. B—Chesapeake Bay, Thimble Shoals Channel Naval Anchorage (CBTSC [(2)(i)] Change to NAD 83. C—CBTSC Naval Anchorage Naval [(2)(ii)] Change to NAD 83. D—CBTSC Naval Anchorage [(2)(iii)] Change to NAD 83. E—Commercial Explosive Anchorage [(2)(iv)] Change to NAD 83. E-1—Explosives Handling Berth [(2)(v)(A)] Change to NAD 83. F—Hampton Bar [(3)(i)] Change to NAD 83. F-1—[(3)(i)(A)] Change to NAD 83. G-1—Explosives Handling Berth [(3)(ii)(A)] Change to NAD 83. G-2—Explosives Handling Berth [(3)(ii)(B)] Change to NAD 83. H—Newport News Bar [(3)(iii)] Change to NAD 83. I—Newport News [(4)(i)] Change to NAD 83. I-1—Newport News [(4)(i)(A)] Change to NAD 83. This proposed rule is necessary to ensure all anchorages positions listed under 33 CFR 110.168 reflect that they are based on NAD 83 datum. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this proposed action merely modifies the datum of the geographic positions that define the boundaries of the existing anchorages. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed changes only make the boundary points of the anchorages referenced herein consistent with the current applicable NOAA navigation charts. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed 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 proposed 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 M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(i) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph 34(i) of the Instruction, an “Environmental Analysis Check List” is not required for this rule. Comments on this section will be considered before we make a final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble the Coast Guard proposes to amend 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority for part 110 is revised to read as follows: Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, and 2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1. 2. Amend § 110.168 to revise paragraphs (a)(1), (a)(2), (a)(3)(i), (a)(3)(ii), (a)(3)(iv), (a)(3)(v), (a)(3)(viii), (a)(4) (i), and (a)(4)(ii), to read as follows: § 110.168 Hampton Roads, Virginia and adjacent waters (Datum: NAD 83).
(a)*Anchorage Grounds.*
(1)*Anchorage A [Naval Anchorage].* The waters bounded by the shoreline and a line connecting the following points: *Latitude* *Longitude* 36°55′36.2″ N 76°02′46.3″ W 36°57′03.3″ N 76°03′01.4″ W 36°56′45.5″ N 76°01′28.8″ W 36°55′55.7″ N 76°01′35.7″ W
(2)*Chesapeake Bay, Thimble Shoals Channel Anchorages.*
(i)*Anchorage B [Naval Anchorage].* The waters bounded by a line connecting the following points: *Latitude* *Longitude* 36°57′58.5″ N 76°06′05.8″ W 36°57′11.5″ N 76°03′00.9″ W 36°55′49.3″ N 76°03′12.8″ W 36°56′32.3″ N 76°06′05.8″ W 36°57′04.5″ N 76°06′05.8″ W 36°57′09.0″ N 76°06′23.3″ W
(ii)*Anchorage C [Naval Anchorage].* The waters bounded by a line connecting the following points: *Latitude* *Longitude* 36°58′55.3″ N 76°09′40.3″ W 36°58′19.3″ N 76°07′16.8″ W 36°57′27.5″ N 76°07′36.3″ W 36°58′04.5″ N 76°09′58.8″ W
(iii)*Anchorage D [Naval Anchorage].* The waters bounded by the shoreline and a line connecting the following points: *Latitude* *Longitude* 36°55′49.5″ N 76°10′31.6″ W 36°58′04.5″ N 76°10′00.9″ W 36°57′31.7″ N 76°07′53.6″ W 36°55′24.6″ N 76°08′27.6″ W
(iv)*Anchorage E [Commercial Explosives Anchorage].* The waters bounded by a line connecting the following points: *Latitude* *Longitude* 36°59′59.2″ N 76°13′45.8″ W 36°59′08.7″ N 76°10′32.6″ W 36°58′13.5″ N 76°10′50.6″ W 36°59′02.5″ N 76°14′04.9″ W
(v)*Explosives Handling Berth E-1 [Explosives Anchorage Berth].* The waters bounded by the arc of a circle with a radius of 500 yards and the center located at: *Latitude* *Longitude* 36°59′05.5″ N 76°11′21.8″ W
(3)Hampton Roads Anchorages.
(i)*Anchorage F, Hampton Bar.* The waters bounded by a line connecting the following points: *Latitude* *Longitude* 36°59′52.1″ N 76°19′10.8″ W 36°59′25.7″ N 76°18′47.3″ W 36°58′49.6″ N 76°19′32.6″ W 36°59′25.5″ N 76°20′05.8″ W
(ii)*Anchorage Berth F-1.* The waters bounded by the arc of a circle with a radius of 500 yards and the center located at: *Latitude* *Longitude* 36°59′29.6″ N 76°19′13.9″ W
(iv)*Explosives Handling Berth G-1.* The waters bounded by the arc of a circle with a radius of 500 yards and the center located at: *Latitude* *Longitude* 36°57′50.5″ N 76°21′35.8″ W
(v)*Explosives Handling Berth G-2.* The waters bounded by the arc of a circle with a radius of 500 yards and the center located at: *Latitude* *Longitude* 36°58′14.5″ N 76°21′00.3″ W
(viii)*Anchorage H, Newport News Bar.* The waters bounded by a line connecting the following points: *Latitude* *Longitude* 36°57′38.8″ N 76°24′18.5″ W 36°57′52.3″ N 76°22′29.7″ W 36°58′07.4″ N 76°22′01.8″ W 36°57′31.6″ N 76°22′00.6″ W 36°57′18.7″ N 76°24′10.1″ W
(4)James River Anchorages.
(i)*Anchorage I, Newport News.* The waters bounded by a line connecting the following points: *Latitude* *Longitude* 36°57′07.2″ N 76°24′43.1″ W 36°56′23.1″ N 76°24′26.8″ W 36°57′54.2″ N 76°26′40.3″ W 36°56′03.5″ N 76°24′35.8″ W 36°58′23.5″ N 76°27′09.8″ W 36°58′49.0″ N 76°27′09.8″ W 36°58′35.9″ N 76°26′37.2″ W 36°57′52.2″ N 76°26′01.6″ W 36°57′31.1″ N 76°25′33.3″ W
(ii)*Anchorage Berth I-1.* The waters bounded by the arc of a circle with a radius of 400 yards and the center located at: *Latitude* *Longitude* 36°57′09.0″ N 76°25′20.4″ W Dated: February 14, 2007. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E7-4113 Filed 3-7-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP San Diego 07-025] RIN 1625-AA00 Safety Zone; Fireworks, Lower Colorado River, Laughlin, NV AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes establishing a temporary safety zone on the navigable waters of the Lower Colorado River, Laughlin, NV, in support of a fireworks display near the AVI Resort and Casino. The safety zone is necessary to provide for the safety of the crew, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. DATES: Comments and related material must reach the Coast Guard on or before April 30, 2007. ADDRESSES: You may mail comments and related material to Marine Events, Prevention Department, Coast Guard Sector San Diego, 2710 N. Harbor Drive, San Diego, CA 92101-1028. Marine Events, Prevention Department, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Coast Guard Sector San Diego between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Eric Carroll, Waterways Management, U.S. Coast Guard Sector San Diego, CA, at telephone
(619)278-7277. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [COTP San Diego 07-025], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Coast Guard Sector San Diego at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The Coast Guard proposes establishing a temporary safety zone on the navigable waters of the Lower Colorado River, Laughlin, NV, in support of a fireworks show in the navigation channel of the Lower Colorado River, Laughlin, NV. The fireworks show is being sponsored by AVI Resort and Casino. The safety zone will be set at a 980-foot radius around the anchored firing barge. This temporary safety zone is necessary to provide for the safety of the show's crew, spectators, participants of the event, participating vessels, and other vessels and users of the waterway. Discussion of Proposed Rule The event involves one anchored barge, which will be used as a platform for launching of fireworks. The safety zone is required because the barge's planned firing location is in the navigation channel. This safety zone would be enforced from 8 p.m. through 9:45 p.m. on May 27, 2007. The limits of this temporary safety zone include all areas within 980 feet of the firing location adjacent to the AVI Resort and Casino centered in the navigational channel between Laughlin Bridge and the northwest point of the AVI Resort and Casino Cove in position: 35°00′45″ N., 114°38′16″ W. Persons and vessels would be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. U.S. Coast Guard personnel would enforce this safety zone. Other Federal, State, or local agencies may assist the Coast Guard, including the Coast Guard Auxiliary. Vessels or persons violating this rule would be subject to both criminal and civil penalties. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although the safety zone will restrict boating traffic within the navigable waters of the Lower Colorado River, Laughlin, NV, the effect of this regulation will not be significant as the safety zone will encompass only a small portion of the waterway and will be very short in duration. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing. As such, the Coast Guard expects the economic impact of this rule to be minimal. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Lower Colorado River, Laughlin, NV, from 8 p.m. to 9:45 p.m. on May 27, 2007. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The safety zone only encompasses a small portion of the waterway, it is short in duration at a late hour when commercial traffic is low, and the Captain of the Port may authorize entry into the zone, if necessary. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Chief Petty Officer Eric Carroll, Waterways Management, U.S. Coast Guard Sector San Diego at telephone
(619)278-7277. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed 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. Environment We have analyzed this proposed 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 made a preliminary determination 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we would be establishing a safety zone. A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review. 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 proposes to amend 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; 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.T11-170 to read as follows: § 165.T11-170 Safety Zone; Fireworks, Lower Colorado River, Laughlin, NV.
(a)*Location* . The limits of this temporary safety zone include all areas within 980 feet of the anchored firing barge. The firing barge will be anchored adjacent to the AVI Resort and Casino, centered in the navigational channel between Laughlin Bridge and the northwest point of the AVI Resort and Casino Cove, Lower Colorado River, Laughlin, NV in position 35°00′45″ N, 114°38′16″ W.
(b)*Enforcement Period* . This safety zone will be enforced from 8 p.m. until the end of the fireworks show on May 27, 2007. The event is scheduled to conclude no later than 9:45 p.m. However, if the display concludes prior to the scheduled termination time, the Captain of the Port will cease enforcement of this safety zone and will announce that fact via Broadcast Notice to Mariners.
(c)*Regulations* . In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this zone by all vessels is prohibited, unless authorized by the Captain of the Port, or his designated representative. Mariners requesting permission to transit through the safety zone may request authorization to do so from the U.S. Coast Guard Patrol Commander. The U.S. Coast Guard Patrol Commander may be contacted via VHF-FM Channel 16.
(d)*Enforcement* . All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. Patrol personnel can be comprised of commissioned, warrant, and petty officers of the Coast Guard onboard Coast Guard, Coast Guard Auxiliary, local, State, and Federal law enforcement vessels. Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. The Coast Guard may be assisted by other Federal, State, or local agencies. Dated: February 20, 2007. C.V. Strangfeld, Captain, U.S. Coast Guard, Captain of the Port, San Diego. [FR Doc. E7-4114 Filed 3-7-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA-HQ-OAR-2001-0004; FRL-8284-1] RIN 2060-AN88 Prevention of Significant Deterioration
(PSD)and Nonattainment New Source Review (NSR): Reasonable Possibility in Recordkeeping AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA proposes revisions to the regulations governing the major new source review
(NSR)programs mandated by parts C and D of title I of the Clean Air Act (CAA). These proposed changes clarify the “reasonable possibility” recordkeeping and reporting standard of the 2002 NSR reform rules. The “reasonable possibility” standard identifies for sources and reviewing authorities the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. The standard also specifies the recordkeeping and reporting requirements on such sources. Recently, the U.S. Court of Appeals for the DC Circuit in *New York* v. *EPA* , 413 F.3d 3 (DC Cir. 2005) ( *New York* ) remanded for the EPA either to provide an acceptable explanation for its “reasonable possibility” standard or to devise an appropriately supported alternative. To satisfy the Court's remand, we (the EPA) are proposing two alternative options to clarify what constitutes “reasonable possibility” and when the “reasonable possibility” recordkeeping requirements apply. The two options are the “percentage increase trigger” and the “potential emissions trigger.” DATES: *Comments.* Comments must be received on or before May 7, 2007. *Public Hearing.* If anyone contacts EPA requesting a public hearing by March 22, 2007, we will hold a public hearing approximately 30 days after publication in the **Federal Register** . ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2001-0004 by one of the following methods: • *http://www.regulations.gov:* Follow the online instructions for submitting comments. • *E-mail: a-and-r-docket@epa.gov.* • *Fax:*
(202)566-1741. • *Mail:* Air and Radiation Docket and Information Center, Environmental Protection Agency, *Mailcode:* 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *Attn:* Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. • *Hand Delivery:* Environmental Protection Agency, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2001-0004. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, avoid any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* For additional instructions on submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , 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 in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air and Radiation Docket and Information Center is
(202)566-1742. *Public Hearing:* If a public hearing is held, it will be held at 9 a.m. in EPA's Auditorium in Research Triangle Park, North Carolina, or at an alternate site nearby. Details regarding the hearing (time, date, and location) will be posted on EPA's Web site at *http://www.epa.gov/nsr* not later than 15 days prior to the hearing date. People interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Pam Long, Air Quality Planning Division, Office of Air Quality Planning and Standards (C504-03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone
(919)541-0641, fax number
(919)541-5509, e-mail address *long.pam@epa.gov,* at least 2 days in advance of the public hearing ( *see* DATES . People interested in attending the public hearing must also call Ms. Long to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504-03), Environmental Protection Agency, Research Triangle Park, NC 27711; *telephone number:*
(919)541-3450; *fax number:*
(919)541-5509; *e-mail address: sutton.lisa@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply To Me? Entities affected by this rule include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups: Industry Group SIC a NAICS b Electric Services 491 221111, 221112, 221113, 221119, 221121, 221122. Petroleum Refining 291 324110. Industrial Inorganic Chemicals 281 325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188. Industrial Organic Chemicals 286 325110, 325132, 325192, 325188, 325193, 325120, 325199. Miscellaneous Chemical Products 289 325520, 325920, 325910, 325182, 325510. Natural Gas Liquids 132 211112. Natural Gas Transport 492 486210, 221210. Pulp and Paper Mills 261 322110, 322121, 322122, 322130. Paper Mills 262 322121, 322122. Automobile Manufacturing 371 336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350, 336399, 336212, 336213. Pharmaceuticals 283 325411, 325412, 325413, 325414. a Standard Industrial Classification. b North American Industry Classification System. Entities affected by the rule also include States, local permitting authorities, and Indian tribes whose lands contain new and modified major stationary sources. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments* . When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date, and page number). • Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree, suggest alternatives, and provide substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Mr. Roberto Morales, U.S. Environmental Protection Agency, OAQPS Document Control Officer, 109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711. EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter. C. Where Can I Obtain Additional Information? In addition to being available in the docket, an electronic copy of this proposed rule is also available on the World Wide Web. Following signature by the EPA Administrator, a copy of this proposed rule will be posted on the EPA's New Source Review
(NSR)Web site, under Regulations & Standards, at *http://www.epa.gov/nsr* . D. How Is This Preamble Organized? The information presented in this preamble is organized as follows: I. General Information A. Does This Action Apply To Me? B. What Should I Consider as I Prepare My Comments for EPA? C. Where Can I Obtain Additional Information? D. How Is This Preamble Organized? II. Introduction A. Purpose of Proposed Rulemaking B. Background C. Reasonable Possibility Standard D. Court Remand of Reasonable Possibility Standard E. Interim Interpretation of Reasonable Possibility in Appendix S III. Description of This Proposed Action A. Application of “Reasonable Possibility” Standard B. Options for Circumstances Under Which “Reasonable Possibility” Standard Applies IV. Statutory and Executive Order Reviews A. Executive Order 12866—Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Analysis
(RFA)D. Unfunded Mandates Reform Act E. Executive Order 13132—Federalism F. Executive Order 13175—Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045—Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898—Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations V. Statutory Authority II. Introduction A. Purpose of Proposed Rulemaking On December 31, 2002 (67 FR 80187), we promulgated final changes (variously, “2002 NSR reform rules,” “NSR reform,” or “reform rules”) to the major NSR program contained in 40 CFR 51.165, 51.166, 52.21, and 52.24. Major elements of these NSR reform changes concerned baseline emissions, actual-to-projected-actual methodology, Clean Units, Plantwide Applicability Limitations (PALs), and Pollution Control Projects (PCPs). At that time we also added “reasonable possibility” recordkeeping requirements, to apply to projects at existing emissions units at a major stationary source (other than projects at a Clean Unit or at a source with a PAL). Further, the “reasonable possibility” requirements only apply if such a project relies on a projection of post-project actual emissions (as opposed to potential to emit) in order to demonstrate that the project is not part of a major modification. It was our intent to finalize changes to another part of the major NSR program, at 40 CFR part 51, appendix S (“Appendix S”), precisely as we finalized the NSR reform changes. Appendix S provides NSR requirements applicable to nonattainment areas after EPA promulgates a new or revised NAAQS but before the area has an approved NSR SIP. However, in the *New York* case, the Court remanded the “reasonable possibility” recordkeeping and reporting provision of the 2002 NSR reform rules for the EPA either to provide an acceptable explanation or to devise an appropriately supported alternative. The *New York* case also vacated the Clean Unit provision and the PCP exemption in the 2002 NSR reform rules. In a separate **Federal Register** notice published on this date, we are finalizing changes to Appendix S to add the December 2002 NSR reform changes. These final changes also include an interim interpretation of the “reasonable possibility” standard based on the “percentage increase trigger” option as described later. To reflect that the Court vacated the Clean Unit provision, this proposed rule omits reference to Clean Units in the description of projects to which the “reasonable possibility” provisions apply. The purpose of this rulemaking is to address the Court's remand by clarifying the reasonable possibility standard and thus clarifying the circumstances under which records must be kept for projects that do not trigger major NSR. For purposes of 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51 appendix S, we are proposing two main options for clarifying the “reasonable possibility” standard. B. Background 1. 2002 NSR Reform Rule In our 2002 NSR reform rule, we revised the major NSR applicability test by promulgating an actual-to-projected-actual applicability test for projects involving existing emissions units. Under this test, sources base major NSR applicability determinations on projected actual emissions (not necessarily their future potential to emit). Until promulgation of the 2002 NSR reform rules, sources that were not electric utility steam generating units (EUSGUs) were subject to the “potential to emit” test for determining emissions increases and therefore were not required to keep records of projected emissions. The 2002 NSR reform rules changed the applicability test for non-EUSGU sources and created certain recordkeeping requirements under what is referred to as the “reasonable possibility” standard. The NSR reform rules added the same “reasonable possibility” recordkeeping and reporting requirements for EUSGUs. 2. July 1992 Rule for EUSGUs Primarily as a result of *Wisconsin Elec. Power Co.* v. *Reilly* (“WEPCO”), 893 F.2d 901 (7th Cir. 1990), we revised our NSR regulations in 1992 to apply an actual-to-future-actual test on all physical or operational changes at EUSGUs except those that are an addition of a new unit or constitute a replacement of an existing unit. The 1992 regulation (57 FR 32314, July 21, 1992) provides a “representative actual annual emissions” methodology that requires the EUSGU (other than a new unit or the replacement of an existing unit) to compare its baseline emissions with its estimated future actual emissions to determine how much the proposed change will increase actual emissions. A discussion of the WEPCO case is included in the preamble to the 1992 regulation. In the 1992 regulation, EPA added a reporting provision as a safeguard to ensure that future actual emissions resulting from the change that exceeded the estimate would not go unnoticed or unreviewed. Under the reporting provision, sources that utilize the “representative actual annual emissions” methodology to determine that they are not subject to NSR must maintain and submit sufficient records to determine if the change results in an increase in representative actual annual emissions. The regulation generally required that the owner or operator submit records to the reviewing authority on an annual basis for a period of 5 years from the date the unit resumes regular operation after the change; however, it allowed for a longer tracking period, not to exceed 10 years, in cases where the permitting agency determined that such longer period was necessary to capture normal source operations. We expected that documentation of post-change actual annual emissions would not impose any additional data collection burden on the part of the EUSGUs, because the EUSGUs would submit the same data normally used to report emissions or operational levels under other existing requirements. As we noted in the preamble to the 1992 regulations (57 FR at 32325), the purpose of the provision is “to provide a reasonable means of determining whether a significant increase in representative actual annual emissions resulting from a proposed change at an existing utility occurs within the 5 years following the change.” Prior to 1992, no sources were required to keep records of projected emissions under major NSR because only the actual-to-potentials test was used. C. Reasonable Possibility Standard Under the two-step applicability test of the 2002 NSR reform rules, a physical or operational change is a major modification for a regulated NSR pollutant if it causes both:
(1)A significant emissions increase ( *see, e.g.* , 40 CFR 52.21(b)(40)); and
(2)a significant net emissions increase (as defined pursuant to, *e.g.* , 40 CFR 52.21(b)(3) and (b)(23)). Under the first step of this test, you compare baseline actual emissions before the change to projected actual emissions after the change to determine whether the change would result in a significant increase in emissions. The regulation defines “projected actual emissions” such that the owner or operator of the major stationary source projects the post-project maximum annual rate at which an existing emissions unit would emit a regulated NSR pollutant. *See* , *e.g.* , 40 CFR 52.21(b)(41)(i). This definition provides that an owner or operator may use the emissions unit's potential to emit, in tons per year, in lieu of a projection. Under the second step, which is referred to as netting, you net the contemporaneous emissions decreases and increases that occurred at the source against the emissions increase determined under the first step. If the net amount equals or exceeds the significant level, then the change triggers major NSR. (“Significant levels” for regulated NSR pollutants are commonly called “significance levels” or “significance thresholds,” and these terms are used interchangeably for purposes of this proposed action.) In the reform rules ( *see* 40 CFR 51.165(a)(6), 40 CFR 51.166(r), and 40 CFR 52.21(r)), EPA determined that a source making a change need not keep records of its emissions (including data on which the source based its projections and data of actual emissions going forward) unless the source believes there is a “reasonable possibility” that the change may result in a significant emissions increase. *See* , *e.g.* , 40 CFR 52.21(r)(6). The provisions of this paragraph (r)(6) apply to projects at an existing emissions unit at a major stationary source (other than projects at * * * a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner or operator elects to use the method specified in paragraphs (b)(41)(ii)(a) through
(c)of this section for calculating projected actual emissions. To determine whether a change at an existing emissions unit will result in an emissions increase, you must use an actual-to-projected-actual applicability test. Note, however, that you may opt to use the source(s potential to emit as its projected actual emissions ( *see* , *e.g.* , 40 CFR 52.21(b)(41)(ii)( *d* )). The “reasonable possibility” standard requires that a source keep records if it meets the following three requirements:
(i)The source projects post-change actual emissions and does not use the actual-to-potential test.
(ii)The source determines that the change would not trigger major NSR.
(iii)The source nevertheless believes that there is a reasonable possibility that the change may significantly increase emissions. 1 For subject sources, the “reasonable possibility” recordkeeping requirements apply to all regulated NSR pollutants, and they apply to each emissions unit that could be affected by the project. Further, if the project increases design capacity or PTE of any regulated NSR pollutant, the recordkeeping and reporting requirements apply for 10 years instead of 5 years. (For purposes of this proposed action, we refer to the physical or operational change as, interchangeably, a change or a project.) 1 The “reasonable possibility” standard covers both EUSGUs and non-EUSGUs. As noted above, prior to promulgation of the “reasonable possibility” standard, an EUSGU that made a change that did not result in a significant emissions increase (under the actual-to-projected-actual measure) was required to provide the permitting authority with at least 5 years of data to confirm the accuracy of the projection. More specifically, if your change or project has a reasonable possibility of resulting in a significant emissions increase, then you must:
(1)Keep certain records that are created before construction (description of the project, identification of emissions units affected by the project, and a description of the applicability test); and
(2)monitor emissions, calculate annual emissions, and maintain records of emissions for 5 years (or 10 years in certain cases) once the change is completed. If the change's annual emissions for a calendar year exceed the baseline by a significant amount and also differ from the projection, then you are additionally required to report emissions for the calendar year. D. Court Remand of Reasonable Possibility Standard In the *New York* case, the Court held, “Because EPA has failed to explain how it can ensure NSR compliance without the relevant data, we will remand for it either to provide an acceptable explanation for its ‘reasonable possibility’ standard or to devise an appropriately supported alternative.” 413 F.3d at 35-36. The Court explained: The problem is that EPA has failed to explain how, absent recordkeeping, it will be able to determine whether sources have accurately concluded that they have no ‘reasonable possibility’ of significantly increased emissions. We recognize that less burdensome requirements may well be appropriate for sources with little likelihood of triggering NSR, but EPA needs to explain how its recordkeeping and reporting requirements allow it to identify such sources. 413 F.3d at 34. The Court added: [T]he intricacies of the actual-to-projected-actual methodology will aggravate the enforcement difficulties stemming from the absence of data. The methodology mandates that projections include fugitive emissions, malfunctions, and start-up costs, and exclude demand growth unrelated to the change. * * *. Each such determination requires sources to predict uncertain future events. By understating projections for emissions associated with malfunctions, for example, or overstating the demand growth exclusion, sources could conclude that a significant emissions increase was not reasonably possible. Without paper trails, however, enforcement authorities have no means of discovering whether the exercise of such judgment was indeed “reasonable.” *Id* . at 35. We are proposing options for determining the circumstances under which a change would have a reasonable possibility of significantly increasing emissions. With the final rulemaking, we intend to clarify the meaning of the “reasonable possibility” standard through the selected option(s) and thus fully address the Court's remand. E. Interim Interpretation of Reasonable Possibility in Appendix S As stated earlier, in a separate **Federal Register** notice published on this date, we are establishing an interim interpretation of the reasonable possibility provisions for purposes of implementing appendix S. In that rulemaking, EPA is revising the major NSR requirements that are applicable to major sources in a State after EPA revises a NAAQS but before the State receives EPA approval of its NSR SIP. The purpose of these revisions is to reflect the requirements of the 2002 NSR reform rule, taking into account the decision in *New York* . For purposes of Appendix S, we are providing an interim interpretation of “reasonable possibility” to apply during the period until we promulgate our clarification of the “reasonable possibility” standard. Under the interim interpretation, we conclude that there is a “reasonable possibility” that the change would result in a significant emissions increase if the change's projected actual emissions increase equals or exceeds 50 percent of the applicable NSR significance level for any pollutant. We base this conclusion on an assumption that the magnitude of projected actual emissions correlates positively to the likelihood of a significant emissions increase. This test may be termed the “percentage increase trigger” that we propose in this action, as described below. III. Description of This Proposed Action This action responds to the Court's remand by proposing two options for determining the circumstances under which a change or project must be considered to have a “reasonable possibility” of significantly increasing emissions. We explain our basis for why each option is enforceable and solicit input from the public. In this section, we also solicit comment on how the “reasonable possibility” standard is generally applied and what is to be recorded and reported in the case of a change or project for which there is a reasonable possibility that the change will result in a significant emissions increase. A. Application of “Reasonable Possibility” Standard This proposed action makes clear that the requirements of the “reasonable possibility” standard are triggered on a pollutant-specific basis and apply on a project-wide basis. This approach is consistent with our 2002 NSR reform rules. In 40 CFR 52.21(r)(6)(iii), for example, we require the owner or operator to monitor “emissions of any regulated NSR pollutant that could increase as a result of the project” for which there is a reasonable possibility of a significant emissions increase. Note that the “reasonable possibility” standard is specific to projects at a major stationary source ( *see* , *e.g.* , 40 CFR 52.21(r)(6)). Therefore, the proposal to clarify this standard does not apply to existing minor sources. As a result, existing minor sources will not become subject to the “reasonable possibility” recordkeeping and reporting standard, even when they make changes that would, if they were major sources, trigger the applicability of those requirements. Minor sources remain subject to appropriate recordkeeping and reporting requirements in the State's minor NSR program. Note further that “synthetic minor modifications” are also not subject to the “reasonable possibility” standard. When a major stationary source undertakes a project that would be a major modification (as defined at 40 CFR 52.21(b)(2) and elsewhere) except that the source accepts a practically enforceable restriction in order to limit the project's increase in emissions to less than significant emissions increase level, the project is termed a “synthetic minor modification.” Such a source must keep records as part of the practically enforceable restriction ( *e.g.* , under a State's minor source NSR program) in order to demonstrate that the increase in potential emissions resulting from the project remains below the significance levels. However, these “synthetic minor modifications” are not subject to the “reasonable possibility” standard. When we finalize this action to clarify the “reasonable possibility” standard, we intend to apply the clarification where we refer to “reasonable possibility” in 40 CFR 51.165(a)(6), 51.166(r)(6), 52.21(r)(6), and part 51 appendix S. Our final rule will supersede the interim interpretation of “reasonable possibility” that we are establishing for appendix S in a separate **Federal Register** notice published on this date. B. Options for Circumstances Under Which “Reasonable Possibility” Standard Applies We propose the following two options for identifying the circumstances under which the increase in emissions caused by a project triggers the “reasonable possibility” recordkeeping and reporting requirements. Our preferred option is the “percentage increase trigger,” and as an alternative we propose the “potential emissions trigger.” The amendatory rule language included in this proposed rule is specific to the “percentage increase trigger” option. We believe the “potential emissions trigger” option would be effective without need for amendatory rule language. 1. Percentage Increase Trigger As our preferred option, we propose what we refer to as the “percentage increase trigger” option for applying the “reasonable possibility” standard. This “percentage increase trigger” is also our interim interpretation for Appendix S purposes, as described earlier. Under this proposed option, you would conclude there is a reasonable possibility that your change will result in a significant emissions increase if the change's projected actual emissions increase equals or exceeds a percentage of the applicable NSR significance level for any pollutant. We propose to use 50 percent of the significance level for the relevant regulated NSR pollutant as the trigger, but we solicit comment on use of a different percentage to trigger recordkeeping and reporting, such as 25, 33, 66 or 75 percent. The significance levels for regulated NSR pollutants are provided in 40 CFR 51.165(a)(1)(x), 51.166(b)(23)(i), 52.21(b)(23)(i), and paragraph II.A.10 in appendix S to part 51. As noted earlier, the Court found that EPA had not explained how, under the “reasonable possibility” methodology, EPA can ensure NSR compliance without a source's maintaining relevant data. The Court explained that for each major NSR applicability determination, the methodology requires sources to: * * * predict uncertain future events. By understating projections for emissions associated with malfunctions, for example, or overstating the demand growth exclusion, sources could conclude that a significant emissions increase was not reasonably possible. Without paper trails, however, enforcement authorities have no means of discovering whether the exercise of such judgment was indeed “reasonable.” 413 F.3d at 35. We believe that the proposed “percentage increase trigger” option addresses these concerns. The Court observed, “We recognize that less burdensome requirements may well be appropriate for sources with little likelihood of triggering NSR, but EPA needs to explain how its recordkeeping and reporting requirements allow it to identify such sources.” *Id.* at 34. The “reasonable possibility” requirements apply only in the case of a change that the source considers small, in that the source believes it increases projected emissions by only a small amount. That is, the requirements apply only with respect to a change that may result in a “significant emissions increase.” The significance levels for most regulated NSR pollutants are on their face small. Thus, the projects associated with these amounts are relatively small. This is particularly so because under the “reasonable possibility” standard, the requirements are triggered only by projects that may result in the specified levels of increased emissions, without taking into account netting. For the same reasons, very large sources are less likely to make changes that are covered by the “reasonable possibility” standard because virtually any change that a very large source makes may be expected to increase emissions above the significance levels and require a major NSR permit. Moreover, under our proposal, a project would avoid triggering the “reasonable possibility” requirements only if the source believed that the emissions increase from the project would be no more than 50 percent of the significance levels. Therefore, our proposal considerably limits the number of projects that could avoid “reasonable possibility” requirements. By assuming that the magnitude of projected actual emissions correlates positively to the likelihood of a significant emissions increase, this “percentage increase trigger” option provides that you keep records for projects with a reasonable possibility of significant emissions increases but also takes into account the impracticality of your having to keep records when anticipating only a small increase in emissions. Thus, EPA believes this interpretation addresses the issues identified by the Court in the *New York* case, in that we are providing a clear distinction, prior to construction, between projects more and less likely to trigger NSR. Table 1 illustrates by example how the “percentage increase trigger” option would apply to two hypothetical projects at a major stationary source. Table 1.—Example Application of Percentage Increase Trigger Project 1 example—smaller increase in actual emissions Project 2 example—larger increase in actual emissions Example pollutant's NSR significance level
(tpy)40. Trigger level, based on 50 percent of significance level
(tpy)20. Baseline actual emissions
(tpy)50 50. Projected actual emissions after change
(tpy)60 90. Increase in actual emissions
(tpy)10 40. Does project trigger “reasonable possibility” requirements? No, because “increase in actual emissions” (10 tpy) is less than “trigger level” (20 tpy) Yes, because “increase in actual emissions” (40 tpy) is greater than “trigger level” (20 tpy). Under the “percentage increase trigger” option, we acknowledge that a source with projected actual emissions below 50 percent (or some other percentage) of the NSR significance levels would be able to avoid “reasonable possibility” recordkeeping and reporting requirements. However, we believe that EPA has numerous means of enforcing the NSR provisions against such a source, even in the absence of records kept under the “reasonable possibility” standard. Two types of records a source owner or operator is generally expected to keep are:
(1)Records to report emissions; and
(2)records for business purposes. Records for business purposes could include corporate minutes, blueprints, plant manager logs, records of capital costs and purchases of materials, and other documents that would describe the types of changes made at the source (wholly apart from changes in emissions that result from the changes). Businesses also have incentives to maintain design parameter information for safety and maintenance reasons. We note that these records give EPA an adequate basis to bring to bear certain enforcement tools, such as the authority to compel document production, conduct inspections, and compel oral testimony, in order to enforce the “reasonable possibility” standard. We solicit comment on the types of records sources keep for business purposes. We request comment on whether to adopt a percentage increase trigger for recordkeeping requirements under the “reasonable possibility” standard. 2. Potential Emissions Trigger We propose an alternative interpretation, what we refer to as the “potential emissions trigger” option. Under this option, you would conclude there is a reasonable possibility that your change will result in a significant emissions increase if the post-change potential to emit equals or exceeds NSR significance levels (even though the source opts to base its determination as to whether NSR applies on projected actual emissions). The EPA believes the “potential emissions trigger” approach would also resolve the issues identified by the Court in the *New York* case. The Court raised the concern that the “reasonable possibility” methodology, as it currently stands, fails to explain how EPA can ensure NSR compliance without the source's maintaining relevant data. We explain below that potential emissions represent the upper bound of post-change emissions, and so under the “potential emissions trigger,” records of projected actual emissions are unnecessary for the purpose of ascertaining whether post-change emissions increased beyond expectations. As long as a project's post-change potential emissions are at or above significance levels, then the source will either trigger major NSR or will be subject to recordkeeping and reporting requirements under the “potential emissions trigger.” If the project's post-change potential emissions are below significance levels, then clearly the project's projected actual emissions would also necessarily be below significance levels, and the “reasonable possibility” standard would not apply. Thus, short of requiring recordkeeping and reporting for all projects that do not trigger major NSR, the “potential emissions trigger” requires recordkeeping and reporting of the greatest number of projects under the “reasonable possibility” standard. IV. Statutory and Executive Order Reviews A. Executive Order 12866—Regulatory Planning and Review Under Executive Order
(EO)12866 (58 FR 51735, October 4, 1993), this action is a significant regulatory action. The action was determined to be a “significant regulatory action” because it raises policy issues arising from the President's priorities. Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. We are not promulgating any new paperwork requirements ( *e.g.* , monitoring, reporting, recordkeeping) as part of this proposed action. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations (40 CFR parts 51 and 52) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , and has assigned OMB control number 2060-0003, EPA ICR number 1230.17. A copy of the OMB approved Information Collection Request
(ICR)EPA ICR number 1230.17 may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Avenue, NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Analysis
(RFA)The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, a small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or
(3)a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or Tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132—Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposal rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA is soliciting comment on this proposal from State and local officials. F. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled (Consultation and Coordination with Indian Tribal Governments (65 FR 13175, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. There are no tribal authorities currently issuing major NSR and title V permits. Thus, Executive Order 13175 does not apply to this rule. Although Executive Order 13175 does not apply to this proposed rule, EPA specifically solicits comment on this proposed rule from Tribal officials. G. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This proposed action does not establish an environmental standard intended to mitigate health or safety risks but rather provides explanation of an existing recordkeeping and reporting standard. H. Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898—Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed rule provides explanation of an existing recordkeeping and reporting standard. V. Statutory Authority The statutory authority for this action is provided by sections 307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401, 7411, 7414, 7416, and 7601). This notice is also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)). List of Subjects 40 CFR Part 51 Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Transportation, Volatile organic compounds. 40 CFR Part 52 Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Transportation, Volatile organic compounds. Dated: February 28, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as set forth below. PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. Subpart I—[Amended] 2. Section 51.165 is amended by revising paragraph (a)(6) introductory text and adding paragraph (a)(6)(vi) to read as follows: § 51.165 Permit requirements.
(a)* * *
(6)Each plan shall provide that the following specific provisions apply on a pollutant-by-pollutant basis with respect to any regulated NSR pollutant associated with projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (a)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (a)(1)(xxviii)(B)( *1* ) through ( *3* ) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(6)(i) through
(vi)of this section.
(vi)A “reasonable possibility” under paragraph (a)(6) of this section occurs when the owner or operator calculates the project to result in projected actual emissions increases of at least 50 percent of the significant level defined in paragraph (a)(1)(x) of this section for the regulated NSR pollutant. 3. Section 51.166 is amended by revising paragraph (r)(6) introductory text and adding paragraph (r)(6)(vi) to read as follows: § 51.166 Prevention of significant deterioration of air quality.
(r)* * *
(6)Each plan shall provide that the following specific provisions apply on a pollutant-by-pollutant basis with respect to any regulated NSR pollutant associated with projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (b)(40)(ii)( *a* ) through ( *c* ) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (r)(6)(i) through
(vi)of this section.
(vi)A “reasonable possibility” under paragraph (r)(6) of this section occurs when the owner or operator calculates the project to result in projected actual emissions increases of at least 50 percent of the significant level defined in paragraph (b)(23)(i) of this section for the regulated NSR pollutant. 4. Appendix S to Part 51 is amended by revising paragraph IV.J introductory text and adding paragraph IV.J.6 to read as follows: *Appendix S to Part 51—Emission Offset Interpretative Ruling.* IV. * * * J. *Provisions for projected actual emissions.* The provisions of this paragraph IV.J apply on a pollutant-by-pollutant basis with respect to any regulated NSR pollutant associated with projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph IV.J.6 of this Ruling, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs II.A.24(ii)( *a* ) through ( *c* ) of this Ruling for calculating projected actual emissions. 6. A “reasonable possibility” under paragraph IV.J of this Ruling occurs when the owner or operator calculates the project to result in projected actual emissions increases of at least 50 percent of the significant level defined in paragraph II.A.10 of this section for the regulated NSR pollutant. PART 52—[AMENDED] 5. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[Amended] 6. Section 52.21 is amended by revising paragraph (r)(6) introductory text and adding paragraph (r)(6)(vi) to read as follows: § 52.21 Prevention of significant deterioration of air quality.
(r)* * *
(6)The provisions of this paragraph (r)(6) apply on a pollutant-by-pollutant basis with respect to any regulated NSR pollutant associated with projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (b)(41)(ii)( *a* ) through ( *c* ) of this section for calculating projected actual emissions.
(vi)A “reasonable possibility” under paragraph (r)(6) of this section occurs when the owner or operator calculates the project to result in projected actual emissions increases of at least 50 percent of the significant level defined in paragraph (b)(23)(i) of this section for the regulated NSR pollutant. [FR Doc. E7-3897 Filed 3-6-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2006-1015; FRL-8284-9] Approval and Promulgation of Implementation Plans; Iowa; Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing a revision to the Iowa State Implementation Plan
(SIP)for the purpose of approving the Iowa Department of Natural Resources'
(IDNR)actions to address the “good neighbor” provisions of the Clean Air Act Section 110(a)(2)(D)(i). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another state's air quality through interstate transport. IDNR has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the National Ambient Air Quality Standards (NAAQS), interference with maintenance of the NAAQS, prevention of significant deterioration of air quality, and significant deterioration of visibility. The requirements for public notification were also met by IDNR. DATES: Comments on this proposed action must be received in writing by April 9, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2006-1015 by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *Hamilton.heather@epa.gov* . 3. *Mail:* Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. *Hand Delivery or Courier.* Deliver your comments to Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding legal holidays. Please see the direct final rule that is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Heather Hamilton at
(913)551-7039, or by e-mail at *Hamilton.heather@epa.gov.* SUPPLEMENTARY INFORMATION: In the final rules section of the **Federal Register** , EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule that is located in the rules section of this **Federal Register** . Dated: February 27, 2007. John B. Askew, Regional Administrator, Region 7. [FR Doc. E7-4178 Filed 3-7-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 4 RIN 1094-AA53 Interior Board of Land Appeals Procedures AGENCY: Office of the Secretary, Interior. ACTION: Proposed rule. SUMMARY: The Office of Hearings and Appeals
(OHA)is proposing to amend several existing procedural regulations governing appeals to the Interior Board of Land Appeals
(IBLA)and to adopt new regulations governing consolidation, extensions of time, intervention, and motions. DATES: You should submit your comments by May 7, 2007. ADDRESSES: You may submit comments, identified by the number 1094-AA53, by any of the following methods: — *Federal rulemaking portal: http://www.regulations.gov.* Follow the instructions for submitting comments. — *Fax:* 703-235-9014. — *E-mail: John_Strylowski@ios.doi.gov.* Include the number 1094-AA53 in the subject line of the message. — *Mail:* Director, Office of Hearings and Appeals, Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203. — *Hand delivery:* Director, Office of Hearings and Appeals, Department of the Interior, 801 N. Quincy Street, Suite 400, Arlington, Virginia 22203. FOR FURTHER INFORMATION CONTACT: Robert S. More, Director, Office of Hearings and Appeals, U.S. Department of the Interior, Phone 703-235-3750. Persons who use a telecommunications device for the deaf may call the Federal Information Relay Service at 800-877-8339. SUPPLEMENTARY INFORMATION: I. Public Comments If you wish to comment on this proposed rule, you may submit your comments by any of the methods listed in the ADDRESSES section above. We will consider all comments received by the deadline stated in the DATES section above. Please make your comments as specific as possible and explain the reason for any changes you recommend. Where possible, your comments should refer to the specific section or paragraph of the regulations you are addressing. Our practice is to make comments, including the names of respondents and their home addresses, phone numbers, and e-mail addresses, available for public review during regular business hours. To review the comments, you may contact the individual listed in the FOR FURTHER INFORMATION CONTACT section above. Individual respondents may request that we withhold their names and home addresses, etc. But if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present a rationale for withholding this information that demonstrates that disclosure would constitute a clearly unwarranted invasion of personal privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documented circumstances, this information will be released. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. II. Background Based on its experience in recent years, OHA has determined that certain of its existing procedural regulations in 43 CFR part 4, subparts E and L, need to be updated, clarified, or otherwise revised to promote expeditious administrative review. (Subpart E contains regulations governing public land hearings and appeals; subpart L contains regulations governing surface coal mining hearings and appeals.) For example, we propose to amend the existing regulations governing service of documents, reconsideration, statements of reasons for appeal, answers, and requests for hearings. In addition, OHA has decided to add regulations to subpart E to provide procedures governing motions for consolidation, extensions of time, and intervention, and for serving and responding to any other motions. These subjects are not currently covered in OHA's regulations, and questions have arisen about whether and how these procedures are conducted by IBLA. The amendments and additions are explained in the following section-by-section analysis. III. Section-by-Section Analysis A. Subpart E—Special Rules Applicable to Public Land Hearings and Appeals Section 4.400 Definitions We propose to define “BLM” to mean “Bureau of Land Management,” and revise the definition of “bureau” to include the Minerals Management Service, because IBLA reviews some decisions of the Minerals Management Service under subpart E, *e.g.* , decisions concerning offshore minerals management and royalty management. *See* 30 CFR Sections 290.2, 290.8, 290.108. We propose to add IBLA's address to the definition of “Board,” so we do not have to repeat it in other sections of the regulations. And we would add a definition of “last address of record” because this phrase appears in proposed Sections 4.401(c)(1) and 4.422(c)(1), the regulations governing service of documents. The regulations would specify that “party” includes a party's representative(s) where the context so requires, *e.g.* , in the service regulations where service must be made by or upon a party. The regulations would also specify that “office” or “officer” includes an administrative law judge or the Board where the context so requires, *e.g.* , in Section 4.411(a)(1) requiring that a notice of appeal be filed in the office of the officer who made the decision being appealed. Section 4.401 Documents In 2003 we amended Section 4.401(c)(2) to allow a party to certify service of a document on other parties by signing a written statement at the end of a document that service has been or will be made, rather than requiring the party to file proof of service in the form of a written statement or a Postal Service return receipt. 68 FR 33794, 33803 (June 5, 2003). We did so as a step towards “bringing IBLA's practice into line with current rules in Federal and state courts.” 68 FR 33801 (June 5, 2003). Existing Section 4.401(c)(1) provides that service “may be made by delivering [a copy of a document] personally to [a person] or by sending the document by registered or certified mail, return receipt requested, to [the person's] address of record in the Bureau.” We now propose to revise Section 4.401(c)(1) to allow service of a document, other than a notice of appeal that initiates a proceeding, by first-class mail to a person's last address of record or by delivery service to a person's last address of record if it is not a post office box. “Last address of record” is defined in Section 4.400 as the address provided in a person's most recent filing in an appeal or, if there has not been any filing, the person's address as provided in the bureau decision under appeal. This change would make IBLA's service regulation more consistent with Rule 5(b)(2)(B) of the Federal Rules of Civil Procedure (FRCP). That rule permits service of a document (other than the complaint that commences a civil action) by mailing a copy of it to the last known address of the person to be served. Under the proposed rule, it will remain a party's responsibility to assure that service is made, and to certify under Section 4.401(c)(3) when and how it was or will be made. One who chooses a means of delivery of a document must accept responsibility for and bear the consequences of delay or nondelivery, *National Wildlife Federation,* 162 IBLA 263, 266 (2004); and the presumption of regularity that officials have properly discharged their duties and have not lost or misplaced a document will prevail over the presumption that a properly addressed letter with sufficient postage will be delivered. *Marathon Oil Co.,* 128 IBLA 168, 172 (1994); *Robert J. King,* 72 IBLA 72, 75 (1983). However, it is not necessary to prescribe, except for a notice of appeal that initiates an appeal, that service occur only by personal delivery or by registered or certified mail. Because delivery services cannot deliver to post office boxes, we propose that service by a delivery service may not be made if the person's last address of record is a post office box. This regulation governing service would apply to any document filed in a proceeding under subpart E. The regulation would also provide that service must occur concurrently with filing, *i.e.* , that copies of a document would be delivered, mailed, or given to a delivery service for delivery to adverse parties at the same time the document is delivered or mailed or given to a delivery service for delivery to the Board. These provisions are comparable to those in subpart L governing service in proceedings under the Surface Mining Control and Reclamation Act. *See* Section 4.1109. Comparable to existing Section 4.401(c)(3), proposed Section 4.401(c)(4) states that service is complete when delivery takes place, whether by personal service, regular mail, registered or certified mail, or a delivery service. Service will also be complete when the Postal Service or a delivery service returns a document undelivered. A party should be able to rely on another party's address of record in the bureau; and if a document sent to that address comes back undelivered, the party has fulfilled its service obligation. Proposed Section 4.401(c)(5) states that, in the absence of evidence to the contrary, delivery by regular mail, registered or certified mail, or a delivery service will be deemed to take place 3 business days after the document was sent. Contrary evidence could include a return receipt from the Postal Service or the delivery service, or a certification from a party's representative as to the actual date on which the party received a document sent by regular mail. We propose corresponding revisions to existing Section 4.422(c). Section 4.403 Finality of Decision; Reconsideration The existing regulation provides that IBLA “may reconsider a decision in extraordinary circumstances for sufficient reason.” This language is not defined, and the preamble to the regulation explained only that “the Board does not intend to enlarge the scope of its reconsideration practice to make it a routine feature of adjudication. This provision reinforces the Board's expectation that parties will make complete submissions in a timely manner during the appeal, not afterward on reconsideration.” 52 FR 21307 (June 5, 1987). Although these statements are still true, IBLA has had sufficient experience with the regulation to enable it to identify circumstances that have frequently been found “extraordinary,” as well as those that have not. Because petitions for reconsideration are often granted by order rather than by published decision, and are therefore less available to the public, we propose to amend the regulation to provide guidance based on this experience. We propose revising the language in paragraph
(b)to state that the Board may reconsider a decision “in extraordinary circumstances,” rather than “in extraordinary circumstances for sufficient reason,” because “for sufficient reason” does not add any meaning. That is, IBLA may grant reconsideration if it finds extraordinary circumstances; it does not also need to determine whether the extraordinary circumstances provide sufficient reason to do so. Paragraph (b)(1) would clarify that a party files a motion for reconsideration (rather than a “petition” for reconsideration, as in the existing regulation) with the Board. Proposed paragraph (b)(3) is a revision of the language of the existing regulation, which states that “[n]o answer to a petition is required unless so ordered by the Board.” The proposed regulation would allow parties to file an answer if they wish and would provide 15 days for doing so. *See June I. Degnan (On Reconsideration),* 114 IBLA 373, 376 (1990). Paragraph (b)(4) would add that the Board may stay the effectiveness of its decision, in response to a motion for reconsideration, “for good cause.” Paragraph
(d)lists some of the circumstances that may warrant IBLA's granting a motion in its discretion. For examples of cases in which reconsideration has been granted because of an error of fact, see *Joan Chorney (On Reconsideration),* 109 IBLA 96, 97 (1989); *State of Alaska (Elliot R. Lind) (On Reconsideration),* 104 IBLA 12, 15 (1988); and *Marathon Oil Co. (On Reconsideration),* 103 IBLA 138, 140 (1988). For an example of IBLA's granting reconsideration based on a recent judicial development, see *Amoco Production Co.,* 143 IBLA 45, 54A-54E (1998). For examples of the kind of change in Departmental policy that might warrant reconsideration under paragraph (d)(3), see *Conoco, Inc.,* 164 IBLA 237, 241 (2005); *Conoco, Inc.,* 115 IBLA 105, 106 (1990); and *Ladd Petroleum Corp.,* 107 IBLA 5, 8 (1989). The second sentence of paragraph (d)(4) is intended to reinforce the expectation mentioned above that parties will make complete submissions during the appeal. A party that relies on newly-submitted evidence must explain why the evidence was not provided previously. If it does not, the Board may find the motion does not show extraordinary circumstances. *See Ulf Teigen (On Reconsideration),* 159 IBLA 142, 144 (2003); *Dugan Production Corp.,* 117 IBLA 153, 157-58 (1990). Paragraph
(e)is intended to discourage a party from re-arguing its reasons for appeal in a motion for reconsideration, in the absence of demonstrable error. *See, e.g., Dona Jeanette Ong (On Reconsideration),* 166 IBLA 65 (2005). Nor should a party file a motion for reconsideration when a statute or regulation prescribes consequences that IBLA has no authority to alter, *e.g.* , 43 U.S.C. 1744(c) or 30 U.S.C. 28i. *See, e.g., Lee H. and Goldie Rice,* 128 IBLA 137, 141 (1993). Section 4.404 Consolidation The Board does not have a regulation providing that it may consolidate appeals, so we propose to add one. If the facts or legal issues involved in two or more appeals are the same or substantially similar, it may be more efficient to consider them together. The Board may consolidate appeals on its own initiative or on motion of a party. It may do so at any time before the appeals are decided; thus, it is possible to consolidate recently-docketed appeals with those that have been pending longer. Parties would have 15 days after service of a motion to consolidate to file a response, in accordance with new Section 4.407(b). For examples of cases that IBLA has consolidated, see *San Carlos Apache Tribe,* 149 IBLA 29, 30 (1999); *Murphy Exploration and Production Co.,* 147 IBLA 386, 387 (1999); *Elaine D. Berman,* 140 IBLA 173 (1997); and *Coastal Oil and Gas Corp.,* 108 IBLA 62, 63 (1989). Section 4.405 Requests for Extension of Time Several regulations require parties to file documents with the Board within specified times, *e.g.* , Section 4.412(a) (statement of reasons within 30 days after filing of the notice of appeal) and Section 4.414 (answer within 30 days after service of a notice of appeal or statement of reasons). *See also* Section 4.413(a) (service of a notice of appeal or a statement of reasons or other pleading within 15 days after filing the document). Failure to comply with Sections 4.412 and 4.413 may subject an appeal to summary dismissal. Section 4.402. Although parties frequently request extensions of time for filing statements of reasons or answers, the only regulation governing how they do so is Section 4.22(f). IBLA's experience indicates a need for a regulation that establishes a standard for when such requests may be granted. As noted by the former Administrative Conference of the United States: Time extensions should be granted only upon strong, documented justification. While procedural fairness mandates that deadlines may be extended for good cause, presiding officers should be aware that casual, customary extensions have serious negative effects on an adjudicatory system, its participants, and those wishing access thereto. Stern warnings accompanying justified extensions have had good success in curtailing lawyers' requests for additional time. Recommendations of the Administrative Conference Regarding Administrative Practice and Procedure, Recommendation No. 86-7, 51 FR 46985, 46990 (Dec. 30, 1986). Accordingly, we propose a new regulation that would require a party to show good cause for requesting any extension. Consent of opposing counsel, standing alone, would not constitute good cause; but conducting settlement negotiations in good faith would constitute good cause for a reasonable extension of time. “Good cause” would be more difficult to show with additional requests or requests for longer extensions. A party that foresees it will need an extension is strongly encouraged to file a motion requesting it as early as possible, in order to give the Board time to consider the motion. Under the proposed regulation, the deadline for filing a request for an extension is the day before the date the document is due, absent compelling circumstances. For example, if a document is due on a Friday, the motion requesting an extension would be due no later than Thursday; if it is due on Monday, the motion would be due on the previous Friday. *See* Section 4.22(e). A party may file and serve such a motion by facsimile. Any party that objected to a motion requesting an extension would have to file its reasons for objection with the Board within 2 business days. A party may likewise file and serve such an objection by facsimile. A Board order granting or denying a motion requesting an extension will state when the document must be filed. If the Board does not act on a motion before the document is due, the document must be filed no later than 15 days after the original due date, unless the Board orders otherwise. For example, if a document were due on the 10th of the month, a motion for extension of time is filed by the 9th, but the Board has not issued an order by the 10th, the document would be due on the 25th unless, after the 10th, the Board issued an order providing a different date. *See* Section 4.22(e). The Board fully intends to rule on all motions it receives for an extension of time. But since we are proposing to allow such motions to be filed up to the close of business on the day before a document is due and to allow objections to be filed within 2 business days thereafter, in many cases it will not be possible for the Board to rule on such motions before the original document due date. We are therefore proposing this 15-day automatic extension period, which can be either shortened or lengthened when the Board does rule on the motion, generally within 1 or 2 business days after the time for filing an objection has expired. Section 4.406 Intervention; Amicus Curiae There is currently no regulation governing intervention in appeals to IBLA under 43 CFR part 4, subpart E, although there is such a regulation in subpart L, Section 4.1110. As a result, there are no established standards for when a person may intervene. As a related matter, there is no regulation in subpart E governing when a person may appear as an amicus curiae, although there is a general regulation in Section 4.3(c). We are therefore proposing a regulation that would govern these matters. IBLA decisions state that a person who “could independently maintain the action in which he seeks to participate” may intervene. *See* , *e.g.* , *Sierra Club—Rocky Mountain Chapter* , 75 IBLA 220, 221 n. 2 (1983); *United States* v. *United States Pumice Co.* , 37 IBLA 153, 157 (1978). Similarly, IBLA has granted intervention to a person who would be adversely affected if the agency decision were reversed or modified on appeal, *e.g.* , the proponent of a project approved by the agency. *See* , *e.g.* , *Las Vegas Valley Action Committee* , 156 IBLA 110, 112 (2001); *Bear River Land & Grazing* v. *BLM* , 132 IBLA 110, 113-14 (1995). When the Board has denied a petition to intervene, it has often allowed the person to participate as an amicus curiae. *See* , *e.g.* , *Southern Utah Wilderness Alliance* , 161 IBLA 15, 18 n. 4 (2004); *Sanguine Limited* , 157 IBLA 277, 281 n. 4 (2001). We propose that the Board may grant a motion to intervene that is timely filed by a person who would have a right of appeal under Section 4.410 or would be adversely affected if the decision under review were reversed, vacated, set aside, or modified by the Board on appeal. Whether a motion to intervene is timely would depend on the potential intervenor's relationship to the case. Specifically, if the person would be adversely affected if the decision under review were reversed, vacated, set aside, or modified by the Board on appeal, a motion to intervene must be filed within 30 days after the person knew or should have known that the decision under review had been appealed. If, however, the person wishing to intervene would have a right of appeal under Section 4.410, the motion must be filed within 30 days after the person was served with the decision or, if not served, knew or should have known of the decision. See *Independent Petroleum Association of Mountain States* , 136 IBLA 279, 281
(1996)(Board will deny motion to intervene where granting it would circumvent the requirement in Section 4.411(a) that an appeal be filed within 30 days after service of a decision). The burden of showing a motion to intervene is timely filed is on the person filing the motion. The motion must state the basis for the proposed intervention. The Board could deny the motion if granting it would disadvantage the rights of the existing parties or unduly delay adjudication of the appeal, *e.g.* , if the motion is filed after all briefs have been submitted and the appeal is ripe for adjudication. Alternatively, the Board could grant the motion but limit the extent of the person's participation in the appeal. Under the proposed regulation, any person could file a motion to file a brief as an amicus curiae. The motion must state what interest the person has in the appeal and how its brief would be relevant to the issues involved. The Board could grant or deny the motion in its discretion. The Board may also allow a person whose motion to intervene is denied to file a brief as an amicus curiae. Section 4.407 Motions There is currently no regulation that deals with motions filed with the Board, *e.g.* , that states when the parties may file responses or provides when the Board is to act. In order to standardize practice and facilitate prompt rulings, we are proposing a regulation requiring a party that files a motion with the Board to support it with reasons. The regulation would allow other parties to respond within 15 days and states that the Board would rule “as expeditiously as possible.” The 15-day response time in Section 4.407(b) would apply to any motion filed in a proceeding under this subpart, unless another regulation or the Board by order sets a different response deadline. For example, Section 4.407(b) would normally apply to a motion under Sections 4.403, 4.404, or 4.406, discussed above, or to a motion to dismiss, to refer for hearing (Section 4.415), to suspend consideration or expedite consideration, to file a further pleading or exceed page limits (see amended Sections 4.412 and 4.414, discussed below), to request a remand, etc. Section 4.407(b) would not apply to a motion requesting an extension of time, since Section 4.405(d) sets a shorter response time for such motions. If a party needs more than 15 days to file a response, it may request an extension of time under Section 4.405. Section 4.411 Appeal; How Taken, Mandatory Time Limit IBLA does not have jurisdiction over an appeal unless a notice of appeal is timely filed with the office of the officer who made the decision. Under Section 4.22(a), a document is filed when it is received, not when it is sent. Recently, cases have arisen in which an appellant has transmitted a notice of appeal via facsimile. Although the appellant attempted to transmit the notice so that it would be filed within 30 days, the office either did not receive it or did not receive it on time. *See* , *e.g.* , *National Wildlife Federation* , 162 IBLA 263, 264-66
(2004)(affirming dismissal of a request for State Director review because, although the appellant submitted the log of transmissions from its facsimile machine, there was no evidence that the request was received by the State Director by the time it was due). *See also Underwood Livestock, Inc.* , 165 IBLA 128, 130-31 (2005). In order to avoid such issues, we propose to amend existing Section 4.411(a) to clarify that transmitting a notice of appeal by facsimile would not constitute filing. The Board generally considers any document it receives by facsimile only a courtesy or advance copy; it does not consider the document filed until the original is received by the Board. (As noted above with respect to Section 4.405(b), however, we are proposing to make an exception for motions for extension of time and objections to such motions.) We propose to amend Section 4.411(b) to reflect IBLA decisions that require authorization for a person to represent more than one party, *e.g.* , *The Friends and Residents of Log Creek* , 150 IBLA 44, 48
(1999)(“Proper application of the Department's rules of practice requires an affirmative showing that a representative of a named appellant is qualified and authorized to represent any other purported appellant or appellants, if single representation for multiple parties is intended.”); *The Wilderness Society* , 109 IBLA 175, 176
(1989)(“[A] party that wishes to join in another's appeal is well advised to file its own notice of appeal and statement of reasons, sign the appeal documents along with the other party, or authorize the other party's attorney, in advance, to represent it as well.”) *See also Klamath Siskiyou Wildlife Center* , 155 IBLA 347, 350-51 (2001). If an attorney or other person eligible under Section 1.3(b) to practice before the Department wishes to represent more than one appellant, the notice of appeal must state that he or she is authorized to do so. Section 4.412 Statement of Reasons, Statement of Standing Section 4.412(a) requires an appellant to file a statement of reasons for appeal with the Board within 30 days after the notice of appeal is filed if the notice of appeal did not include a statement of reasons. The next sentence states: “In any case, the Board will permit the appellant to file additional statements of reasons and written arguments or briefs within the 30-day period after the notice of appeal was filed.” This sentence, together with existing Section 4.414 (which requires an answer be filed within 30 days after service of a statement of reasons and then again if additional reasons are filed by the appellant) means a party that wishes to participate in the appeal potentially must file two answers. We propose to allow an appellant to file a statement of reasons within 30 days after filing the notice of appeal (as it may under the existing regulation), but to revise Section 4.414 to state that any party that is served with a notice of appeal and that wishes to participate will have 60 days after service of the statement of reasons to file a single answer. We also propose that an appellant's statement of reasons may not exceed 30 pages (excluding exhibits, declarations, or other attachments) unless the appellant files a motion under Section 4.407 to obtain leave of the Board by showing good cause. We propose that an appellant must also show good cause for leave to file any additional pleading, e.g., a reply to an answer. We propose the same page limit on answers. In IBLA's experience, because the agency's decision should contain a supporting rationale ( * see Larry Brown & Associates * , 133 IBLA 202, 205 (1995)), it is sufficient for the Board's purposes to receive a statement of reasons for appeal and an answer. More than this becomes costly and time-consuming to the parties and delays ripeness of the appeal for adjudication by the Board without providing additional useful argument. These proposals provide adequate opportunity for all parties to state their arguments and authorize the Board to allow longer or additional pleadings if a need for them is shown. We expect these pleadings will generally conform to the form requirements of Federal Rule of Appellate Procedure 32, *e.g.* , be double-spaced, have adequate margins, and be in a standard type style. Section 4.413 Service of Notice of Appeal We propose to revise Section 4.413(a) to require service of a notice of appeal in accordance with Section 4.401(c)(2)(i), *i.e.* , by personal delivery or by registered mail or certified mail, return receipt requested. Under Section 4.401(c), all other documents filed with the Board must also be served. Several of the addresses of the Office of the Solicitor on which a copy of a notice of appeal and statement of reasons must be served under existing Section 4.413(c)(2) are out of date. The regulation would be revised to provide the current addresses. Section 4.414 Answers 43 CFR 4.414 currently provides that a party served with a notice of appeal that wishes to participate in an appeal must file an answer to an appellant's statement of reasons within 30 days after service of the statement. In its second sentence, the regulation provides, “If additional reasons, written arguments, or briefs are filed by the appellant, the adverse party shall have 30 days after service thereof on him within which to answer them.” As discussed above under Section 4.412, we believe it is normally sufficient for each party to file only one brief unless it can show good cause for a further brief. We therefore propose to revise this regulation to require filing of a single answer (or motion, if appropriate, *e.g.* , a motion to dismiss) within 60 days of service of the statement of reasons for appeal. The time for answer would be increased from 30 to 60 days to make it the same as the total length of time that an appellant has to file a statement of reasons from the date of service of the decision being appealed (30 days under Section 4.411(a)(3) plus 30 days under Section 4.412(a)). If settlement negotiations promise to extend beyond 60 days, a person wishing to participate could file a motion requesting an extension of time to file an answer or motion under Section 4.405. An answer must respond to the statement of reasons for appeal and, if a person is representing more than one party, must state that the person is authorized to do so. Like an appellant, a party may not file a further pleading unless the Board grants a motion showing good cause to do so. Nor may an answer or motion exceed 30 pages (excluding exhibits, declarations, or other attachments) unless the Board grants a motion showing good cause. Section 4.415 Motion for a Hearing on an Appeal Involving Questions of Fact Existing 43 CFR 4.415 authorizes the Board, in its discretion, to refer a case to an administrative law judge
(ALJ)for a hearing on an issue of fact, either on its own initiative or in response to a request from an appellant or an adverse party. The regulation provides that such a request must be filed within 30 days after an answer is due, and that, if the Board orders a hearing, it will specify the issues upon which the hearing is to be held. IBLA has found that the requirement in Section 4.415 that a request for a hearing be filed within 30 days after an answer is due is neither necessary nor advisable. Sometimes the need for a hearing does not become apparent until later. Because it is not necessary that a hearing be requested within 30 days after an answer is due, we propose to delete this requirement. When a party has requested a hearing without specifying the issues of fact involved or the reasons why a hearing is necessary, IBLA has found it helpful to issue an order requesting the party to list what specific material issues of fact require a hearing, what evidence concerning these issues must be presented by oral testimony, what witnesses need to be examined, and what evidence could be presented in documentary form, e.g., by affidavit, rather than by oral testimony. *See* , *e.g.* , *W.J. and Betty Lo Wells* , 122 IBLA 250, 252 (1992). We propose to amend Section 4.415 to require a party that requests a hearing to specify in a motion what the material issues of fact are, what evidence must be presented, what witnesses need to be examined, and what documentary evidence needs to be explained, if any. Although IBLA has established standards for exercising its discretion in favor of granting such a request, they are not set forth in 43 CFR 4.415. The IBLA has regularly stated that a hearing is not necessary in the absence of a material issue of fact that, if proven, would alter the disposition of the appeal. *Kim C. Evans* , 82 IBLA 319, 323 (1984). A hearing is necessary only where there is a material issue of fact requiring resolution through the introduction of testimony and other evidence. In the absence of such an issue, no hearing is required. *See United States* v. *Consolidated Mines & Smelting Co.* , 455 F.2d 432, 453 (9th Cir. 1971). *Ben Cohen (On Judicial Remand)* , 103 IBLA 316, 321 (1988). The Board has also said it “ ‘should grant a hearing when there are significant factual or legal issues remaining to be decided and the record without a hearing would be insufficient for resolving them.' ” *Woods Petroleum Co.* , 86 IBLA 46, 55 (1985), quoting *Stickelman* v. *United States* , 563 F.2d 413, 417 (9th Cir. 1977). We propose to include the standards for referral for a hearing in the regulation: that there is a material issue of fact which, if proven, would alter the outcome of the appeal or that there are significant factual or legal issues remaining to be decided and the record without a hearing would not be sufficient for resolving them. “Material” means “tending to prove or disprove a matter in issue.” B. Garner, *A Dictionary of Modern Legal Usage* , (Oxford University Press, 1987), at 354. The existing regulation provides that the hearing will be held in accordance with Sections 4.430 to 4.439 and the general rules in subpart B of 43 CFR Part 4. Section 4.439 in turn states that, upon completion of the hearing, the ALJ will send the Board the record and proposed findings of fact on the issues presented at the hearing. Thus, Section 4.415 does not in terms authorize IBLA to refer a case to an ALJ either for a recommended decision or for a decision that would be final unless appealed to IBLA, although IBLA has long done both. *See, e.g., Samedan Oil Corp.* , 163 IBLA 63, 71 (2004); *Elizabeth B. Archer* , 102 IBLA 308, 310 (1988); *Hondoo River and Trails* , 91 IBLA 296, 304 (1986). In recent years, IBLA's prevailing practice has been to refer the case to an ALJ for a hearing and issuance of a decision that will be final in the absence of an appeal. Another of OHA's appeals boards, the Interior Board of Indian Appeals (IBIA), also has regulations providing for the referral of a case to an ALJ for an evidentiary hearing. Those regulations specify that, following the hearing, the ALJ is to issue recommended findings of fact and conclusions of law. 43 CFR 4.337, 4.338 (2004). IBIA does not refer cases to an ALJ for a hearing and issuance of a final decision. Recently, the OHA Director issued a decision which concluded that IBLA's regulations at Sections 4.415 and 4.430 through 4.439 provide authority only for the Board to refer a case for a hearing on one or more issues of fact that the Board is required to specify, and for the ALJ to conduct a hearing and make proposed findings of fact on the issues so referred. The Board is not authorized to refer a case to an ALJ for a recommended decision on the merits or for a decision that will be final in the absence of an appeal. If considerations of judicial economy favor expanding the authority of the Board and the ALJs to dispose of cases that involve disputed issues of fact, the solution is to amend the regulations. Samedan Oil Corp., 32 OHA 61, 70
(2005)Accordingly, we propose to make explicit the Board's authority to refer a matter for a hearing followed by
(1)proposed findings of fact on specified issues,
(2)a recommended decision, or
(3)a decision that will be final in the absence of an appeal. As discussed below, 43 CFR Sections 4.433 and 4.439 would be revised to give ALJs the corresponding authority. We welcome comments on the appropriateness and relative advantages of the three options, and whether the final regulations should include all three. Finally, the proposed regulation would provide that the Board may suspend the effectiveness of the decision under review pending a final decision on the appeal if, considering factors including those set forth in Section 4.21(b), it finds good cause to do so. Section 4.421 Definitions Because “administrative law judge,” “Board,” “bureau,” and “Secretary” are defined in Section 4.400, it is not necessary to repeat them in this regulation, and we propose to remove those definitions. We would alphabetize the remaining definitions and revise them to reflect the revisions to the definitions in Section 4.400. Section 4.422 Documents As discussed above under Section 4.401, we propose to revise existing Section 4.422(c) to allow service by first-class mail and by a delivery service and to provide that service will be complete when a document is delivered or returned undelivered. Section 4.433 Authority of the Administrative Law Judge As discussed above under Section 4.415, we propose to revise Section 4.433 to provide authority to an administrative law judge to issue a recommended decision or a decision that would be final for the Department absent an appeal to the Board, in addition to proposed findings of fact on the issues presented at the hearing. This authority is set forth in proposed Section 4.433(a)(4). Section 4.434 Conduct of Hearing We propose to revise this regulation to substitute “administrative law judge” for “examiner” and to substitute “bureau,” as defined in Section 4.400, for “Bureau of Land Management.” Section 4.438 Summary of Evidence We propose to remove this regulation because the procedure described has not been used for many years and is unnecessary, since all hearings are transcribed. We would redesignate existing Section 4.439 as Section 4.438. Section 4.438 Action by Administrative Law Judge As discussed above under Section 4.415, we propose to revise this regulation to authorize an administrative law judge to issue a recommended decision or decision that would be final for the Department absent an appeal to the Board, in addition to proposed findings of fact on the issues presented at the hearing. An administrative law judge's decision that would be final for the Department absent appeal would not, however, be precedential. [D]ecisions of Administrative Law Judges, while certainly worthy of respectful consideration, are not Departmental precedents and are not binding on this Board nor are they binding upon other Administrative Law Judges, unless they are adopted by the Board in adjudication of an appeal. *McLean* v. *BLM* , 133 IBLA 225, 235 n. 16 (1995); *see also United States* v. *Mansfield* , 35 IBLA 95, 100 (1978). We propose to delete the second sentence of the regulation, and to require the administrative law judge to serve on the parties the proposed findings, recommended decision, or decision that would be final absent appeal. We also propose to add a provision that the parties may file exceptions to proposed findings or a recommended decision with the Board. Section 4.478 Appeals to the Board of Land Appeals; Judicial Review OHA recently published amendments to its regulations that authorized an administrative law judge to issue an order granting or denying a petition for stay of a BLM grazing decision. 43 CFR 4.474(c), 68 FR 68765, 68771 (Dec. 10, 2003). The amendments also provided for an appeal to IBLA from such an order in Section 4.478(a), but did not specify a time or place for filing the appeal. *See Western Watersheds Projects* v. *Bureau of Land Management* , 166 IBLA 30, 37 (2005). We propose to amend Section 4.478(a) to provide that an appeal may be filed with the administrative law judge in accordance with Section 4.411(a). B. Subpart L—Special Rules Applicable to Surface Coal Mining Hearings and Appeals Section 4.1117 Reconsideration In subpart L, 43 CFR 4.1276(a) provides that a party may “move for reconsideration under Section 4.21(d); however, the motion shall be filed with the Board within 30 days after the date of the decision” (rather than “filed promptly,” as provided in Section 4.21(d)). Because Section 4.1276 is in the part of subpart L headed “Appeals to the Board from Decisions or Orders of Administrative Law Judges,” the question has arisen whether Section 4.1276(a) governs reconsideration of other Board decisions under subpart L, *e.g.* , in appeals of decisions of the Director of the Office of Surface Mining Reclamation and Enforcement under Section 4.1280 *et seq.* In order to provide a regulation governing reconsideration of any Board decision under subpart L and to make that regulation consistent with the revisions to Section 4.403, discussed above, we propose to add a regulation to the general provisions of subpart L stating that a petition for reconsideration may be filed within 60 days after the date of the decision and that the provisions of Section 4.403 will apply. Section 4.1270 Petition for Discretionary Review of a Proposed Civil Penalty When Section 4.1270(f) was amended recently, 67 FR 61506, 61511 (Oct. 1, 2002), the first sentence mistakenly referred to “the rules in Sections 4.1273 through 4.1277.” There is no Section 4.1277, so we are correcting the amendment of Section 4.1270(f) to refer to 4.1273 through 4.1275. Section 4.1276 Reconsideration This regulation will be removed because of the addition of Section 4.1117, discussed above. Section 4.1286 Motion for a Hearing Like Section 4.415, Section 4.1286 provides that a party may request a hearing before an administrative law judge “to present evidence on an issue of fact,” and that the Board, either in response to a request or on its own motion, may refer a case to an administrative law judge “for a hearing on an issue of fact.” Also like Section 4.415, Section 4.1286 provides that the Board “will specify the issues upon which the hearing will be held.” In Section 4.415, this language is followed by the statement that “the hearing will be held in accordance with Sections 4.430 to 4.439 and the general rules in subpart B of this part.” As discussed above in connection with the proposed amendment to Section 4.415, Section 4.439 provides that after a hearing the administrative law judge will send the Board the record and proposed findings of fact; therefore, Section 4.415 has been construed as authorizing the Board to refer a matter for a hearing only for proposed findings of fact, not for a recommended decision or a decision that will be final in the absence of an appeal. *Samedan Oil Corp.* , 32 OHA 61, 70 (2005). Unlike Section 4.415, there is no statement in Section 4.1286 referring to the authority under which a hearing will be conducted. To ensure there is no ambiguity in the Board's authority under Section 4.1286 in light of the decision in *Samedan* , we are proposing an amendment similar to that proposed for Section 4.415. Paragraph
(e)would provide that hearings under Section 4.1286 will be conducted under the regulations of subpart L that provide specific standards, deadlines, and procedures for other proceedings under the Surface Mining Control and Reclamation Act, including regulations governing discovery and the conduct of evidentiary hearings. In the absence of such a provision, those regulations would not apply, since hearings under Section 4.1286 are not required to be conducted under 5 U.S.C. 554 (2000). IV. Review Under Procedural Statutes and Executive Orders A. Regulatory Planning and Review (E.O. 12688) In accordance with the criteria in Executive Order 12866, the Office of Management and Budget has determined that this document is not a significant rule. The Office of Management and Budget has not reviewed this rule under Executive Order 12866. 1. This rule would not have an annual economic effect of $100 million or more or adversely affect in a material way an economic sector, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. A cost-benefit and economic analysis is not required. These proposed regulations would have virtually no effect on the economy because they would only revise existing procedural regulations governing appeals and add new regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention. 2. This rule would not create inconsistencies with or interfere with other agencies' actions because only OHA provides regulations that govern procedures for appeals of decisions concerning the use and disposition of public lands and their resources and concerning surface coal mining. 3. This rule would not materially alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. These proposed regulations have to do only with procedures governing appeals, not with entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. 4. This rule does not raise novel legal or policy issues. The proposed regulations would merely revise existing procedures and add regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention, which are all familiar administrative procedures. B. Regulatory Flexibility Act The Department of the Interior certifies that this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The proposed regulations only revise or add procedural regulations governing appeals. A Small Entity Compliance Guide is not required. C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act: 1. It would not have an annual effect on the economy of $100 million or more. The proposed rule only revises procedural regulations governing appeals and adds regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention. The rule should have no effect on the economy. 2. It would not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions. Revising OHA's procedural regulations governing appeals and adding regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention would not affect costs or prices for citizens, individual industries, or government agencies. 3. It would 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. Revising OHA's procedural regulations governing appeals and adding regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention should have no effects, adverse or beneficial, on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. D. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ), we find that: 1. This rule would not have a significant or unique effect on state, local, or tribal governments or the private sector. Revising OHA's procedural regulations governing appeals and adding regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention would neither uniquely nor significantly affect these governments. 2. This rule would not produce an unfunded Federal mandate of $100 million or more on state, local, or tribal governments in the aggregate or the private sector in any year, *i.e.* , it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. A statement containing the information required by the Unfunded Mandates Reform Act, 2 U.S.C. 1532, is not required. E. Takings (E.O. 12630) In accordance with Executive Order 12630, we find that the rule would not have significant takings implications. A takings implication assessment is not required. Revising OHA's procedural regulations governing appeals and adding regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention should have no effect on property rights. F. Federalism (E.O. 13132) In accordance with Executive Order 13132, we find that the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. There is no foreseeable effect on states from revising OHA's procedural regulations governing appeals and adding regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention. A Federalism Assessment is not required. G. Civil Justice Reform (E.O. 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Because these regulations would improve OHA's procedural regulations governing appeals and add regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention, they would not burden either administrative or judicial tribunals. H. Paperwork Reduction Act This proposed rule would not require an information collection from 10 or more parties, and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I has not been prepared and has not been approved by the Office of Policy Analysis. The proposed rule is an administrative and procedural rule that revises OHA's procedural regulations governing appeals and adds regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention. I. National Environmental Policy Act The Department has analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 *et seq.* , Council on Environmental Quality
(CEQ)regulations, 40 CFR part 1500, and the Department of the Interior Departmental Manual (DM). CEQ regulations, at 40 CFR 1508.4, define a “categorical exclusion” as a category of actions that do not individually or cumulatively have a significant effect on the human environment. The regulations further direct each department to adopt NEPA procedures, including categorical exclusions. 40 CFR 1507.3. The Department has determined that this proposed rule is categorically excluded from further environmental analysis under NEPA in accordance with 516 DM 2, Appendix 1, which categorically excludes “[p]olicies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature . . . .” In addition, the Department has determined that none of the extraordinary circumstances listed in 516 DM 2, Appendix 2, applies to the proposed rule. The proposed rule is an administrative and procedural rule that revises OHA's procedural regulations governing appeals and adds regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention. Therefore, neither an environmental assessment nor an environmental impact statement under NEPA is required. J. 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), E.O. 13175, and 512 DM 2, the Department of the Interior has evaluated potential effects of these regulations on Federally recognized Indian tribes and has determined that there are no potential effects. These regulations would not affect Indian trust resources; they would only revise OHA's procedural regulations governing appeals and add regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention. K. Effects on the Nation's Energy Supply (E.O. 13211) In accordance with Executive Order 13211, we find that this regulation does not have a significant effect on the nation's energy supply, distribution, or use. Revising OHA's procedural regulations governing appeals and adding regulations governing consolidation of appeals, requests for extensions of time, motions, and intervention would not affect energy supply or consumption. L. Clarity of This Regulation Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to the following:
(1)Are the requirements in the rule clearly stated?
(2)Does the rule contain technical language or jargon that interferes with its clarity?
(3)Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4)Would the rule be easier to understand if it were divided into more (and shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, *§ 4.403 Finality of decision; reconsideration* .)
(5)Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule?
(6)What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: *Exsec@ios.doi.gov.* List of Subjects in 43 CFR Part 4 Administrative practice and procedure; Mines; Public lands; Surface mining. Dated: February 16, 2007. R. Thomas Weimer, Assistant Secretary—Policy, Management and Budget. For the reasons set forth in the preamble, the Office of Hearings and Appeals proposes to amend 43 CFR part 4 as set forth below: PART 4—DEPARTMENT HEARINGS AND APPEALS PROCEDURES Subpart E—Special Rules Applicable to Public Land Hearings and Appeals 1. Revise the authority citation for part 4, subpart E, to read as follows: Authority: Sections 4.470 to 4.480 are also issued under authority of 43 U.S.C. 315a. 2. Revise § 4.400 to read as follows: § 4.400 Definitions. As used in this subpart: *Administrative law judge* means an administrative law judge in the Office of Hearings and Appeals, Office of the Secretary, appointed under 5 U.S.C. 3105. *BLM* means the Bureau of Land Management. *Board* means the Interior Board of Land Appeals in the Office of Hearings and Appeals, Office of the Secretary. The address of the Board is 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203. *Bureau* means BLM or the Minerals Management Service, as appropriate. *Last address of record* means the address in a person's most recent filing in an appeal or, if there has not been any filing, the person's address as provided in the bureau decision under appeal. *Party* includes a party's representative(s) where the context so requires. *Office or officer* includes “administrative law judge” or “Board” where the context so requires. *Secretary* means the Secretary of the Interior, or an authorized representative. 3. In § 4.401, revise paragraph
(c)to read as follows: § 4.401 Documents.
(c)*Service of documents.*
(1)A party that files any document under this subpart must serve a copy of it concurrently on:
(i)Each adverse party named in the decision, at the last address of record; and
(ii)The appropriate official of the Office of the Solicitor under § 4.413(c) and (d).
(2)Service may be made as shown in the following table: If the document is . . . Service may be made by . . .
(i)A notice of appeal
(A)Personal delivery; or
(B)Registered or certified mail, return receipt requested.
(ii)Not a notice of appeal
(A)Personal delivery;
(B)Registered or certified mail, return receipt requested;
(C)First-class mail; or
(D)Delivery service, if the last address of record is not a post office box.
(3)At the conclusion of any document that a party must serve under the regulations in this part, the party must sign a written statement that:
(i)Certifies that service has been or will be made in accordance with the applicable rules; and
(ii)Specifies the date and manner of service.
(4)Service is complete as shown in the following table: If service is made by . . . Service is complete when the document is . . .
(i)Personal delivery Delivered to the party or its agent.
(ii)Registered or certified mail, return receipt requested Delivered to the party or returned by the Postal Service unclaimed.
(iii)First-class mail Delivered to the party or returned by the Postal Service undelivered.
(iv)Delivery service Delivered to the party or returned by the delivery service undelivered.
(5)In the absence of evidence to the contrary, delivery under paragraphs (c)(4)(ii) through
(iv)of this section is deemed to take place 3 business days after the document was sent. 4. Revise § 4.403 to read as follows: § 4.403 Finality of decision; reconsideration.
(a)The Board's decision is final agency action and is effective on the date it is issued, unless the decision itself provides otherwise.
(b)The Board may reconsider a decision in extraordinary circumstances.
(1)A party that wishes to request reconsideration of a Board decision must file a motion for reconsideration with the Board within 60 days after the date of a decision.
(2)The motion may include a request that the Board stay the effectiveness of its decision.
(3)Any other party to the original appeal may file a response to a motion for reconsideration with the Board within 15 days after service of the motion, unless the Board orders otherwise.
(4)A motion for reconsideration will not stay the effectiveness or affect the finality of the Board's decision unless so ordered by the Board for good cause.
(5)A party does not need to file a motion for reconsideration in order to exhaust its administrative remedies.
(c)A motion for reconsideration must:
(1)Specifically describe the extraordinary circumstances that warrant reconsideration; and
(2)Include all arguments and supporting documents.
(d)Extraordinary circumstances that may warrant granting reconsideration include, but are not limited to:
(1)Error in the Board's interpretation of material facts;
(2)Recent judicial development;
(3)Change in Departmental policy; or
(4)Evidence that was not before the Board at the time the Board's decision was issued and that demonstrates error in the decision.
(e)If the motion cites extraordinary circumstances under paragraph (d)(4) of this section, it must explain why the evidence was not provided to the Board during the course of the original appeal.
(f)The Board will not grant a motion for reconsideration that:
(1)Merely repeats arguments made in the original appeal, except in cases of demonstrable error; or
(2)Seeks to alter legally binding consequences. 5. Add §§ 4.404 through 4.407 to subpart E to read as follows: § 4.404 Consolidation. If the facts or legal issues in two or more appeals pending before the Board are the same or similar, the Board may consolidate the appeals, either on motion by a party or at the initiative of the Board. § 4.405 Extensions of time.
(a)If a document other than a notice of appeal is required to be filed or served within a definite time, a party may seek additional time by filing with the Board a motion requesting an extension of time.
(b)The deadline for filing a motion requesting an extension is the day before the date the document is due. The motion may be filed and served by facsimile. Section 4.401(a) does not apply to a motion requesting an extension of time.
(c)The party must support its motion requesting an extension of time by showing there is good cause to grant it.
(d)Any party that objects to a motion requesting an extension must file with the Board its reasons for objection within 2 business days after service of the motion. The objection may be filed and served by facsimile.
(e)A Board order granting or denying a motion requesting an extension will state when the document must be filed. If the Board does not act on a motion before the document is due, the document must be filed no later than 15 days after the original due date, unless the Board orders otherwise. § 4.406 Intervention; amicus curiae.
(a)A person who wishes to intervene in an appeal must file a motion to intervene within the time shown in the following table: If the person . . . The person must file the motion within 30 days after the person . . .
(1)Would have a right to appeal under § 4.410 and was served with the decision Was served with the decision.
(2)Would have a right to appeal under § 4.410 and was not served with the decision Knew or should have known that the bureau had issued the decision.
(3)Would be adversely affected if the Board reversed, vacated, set aside, or modified the decision Knew or should have known that the decision had been appealed to the Board.
(b)A timely motion to intervene must set forth the basis under paragraph
(a)of this section for the proposed intervention.
(c)The Board may:
(1)Deny the motion to intervene if granting it would disadvantage the rights of the existing parties or unduly delay adjudication of the appeal; or
(2)Grant the motion to intervene but limit the person's participation in the appeal.
(d)A person may file a motion at any time to file a brief as an amicus curiae.
(1)The motion must state the person's interest in the appeal and how its brief will be relevant to the issues involved.
(2)The Board may grant or deny the motion in its discretion. The Board may also allow a person to file a brief as amicus curiae if it denies the person's motion to intervene. § 4.407 Motions.
(a)Any motion filed with the Board must provide a concise statement of the reasons supporting the motion.
(b)When a person or party files a motion, any other party has 15 days after service of the motion to file a written response, unless a provision of this subpart, *e.g.* , § 4.405(d), or the Board by order provides otherwise.
(c)The Board will rule on any motion as expeditiously as possible. 6. In § 4.411, revise paragraphs
(a)and
(b)to read as follows: § 4.411 Appeal; how taken, mandatory time limit.
(a)A person who wishes to appeal to the Board must file a notice that the person wishes to appeal.
(1)The notice of appeal must be filed in the office of the officer who made the decision (not the Board).
(2)A person served with the decision being appealed must transmit the notice of appeal in time for it to be filed in the appropriate office within 30 days after the date of service.
(3)If a decision is published in the **Federal Register** , a person not served with the decision must transmit the notice of appeal in time for it to be filed in the appropriate office within 30 days after the date of publication.
(4)Transmitting a notice of appeal by facsimile does not constitute filing.
(b)The notice of appeal must give the serial number or other identification of the case. A person representing more than one appellant must state that he or she is authorized to do so. The notice of appeal may include a statement of reasons for the appeal, and a statement of standing if required by § 4.412(b). 7. In § 4.412, revise paragraph
(a)to read as follows: § 4.412 Statement of reasons, statement of standing.
(a)An appellant must file a statement of reasons for appeal with the Board within 30 days after the notice of appeal was filed. Unless the Board orders otherwise, upon motion for good cause shown:
(1)The text of a statement of reasons may not exceed 30 pages (double-spaced, using standard margins and font size); and
(2)An appellant may not file any further pleading. 8. Revise §§ 4.413 through 4.415 to read as follows: § 4.413 Service of notice of appeal.
(a)The appellant must serve a copy of the notice of appeal on each adverse party named in the decision from which the appeal is taken and on the Office of the Solicitor as identified in paragraphs
(c)and
(d)of this section. Service must be accomplished and certified as prescribed in § 4.401(c)(2)(i).
(b)Failure to serve a notice of appeal will subject the appeal to summary dismissal as provided in § 4.402.
(c)The appellant must serve a copy of the notice of appeal as shown in the following table. If the appeal is taken from a decision of. . . Then the appellant must serve the notice on. . .
(1)The Director, Minerals Management Service Associate Solicitor, Division of Mineral Resources, U.S. Department of the Interior, Washington, DC 20240.
(2)The Director, BLM
(i)If the decision concerns use and disposition of public lands, including land selections under the Alaska Native Claims Settlement Act, as amended: Associate Solicitor, Division of Land and Water Resources, U.S. Department of the Interior, Washington, DC 20240; or
(ii)If the decision concerns use and disposition of mineral resources: Associate Solicitor, Division of Mineral Resources, U.S. Department of the Interior, Washington, DC 20240.
(3)A BLM State Office (including all District, Field, and Area Offices within that State Office's jurisdiction) the appropriate office identified in paragraph
(d)of this section.
(4)An Administrative Law Judge the persons identified in paragraph
(e)of this section.
(d)This paragraph applies to any appeal taken from a decision of a BLM State Office, including all District, Field, and Area Offices within that State Office's jurisdiction. The appellant must serve documents in accordance with the following table, unless the decision identifies a different official: BLM state office Mailing address
(1)Alaska Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230 University Drive, Suite 300, Anchorage, AK 99508-4626.
(2)Arizona Field Solicitor, U.S. Department of the Interior, U.S. Courthouse, Suite 404, 401 W. Washington St. SP 44, Phoenix, AZ 85003.
(3)California Regional Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Room E-1712, Sacramento, CA 95825-1890.
(4)Colorado Regional Solicitor, Rocky Mountain Region, U.S. Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215.
(5)Eastern States
(i)If the decision concerns the use and disposition of public lands: Associate Solicitor, Division of Land and Water Resources, Office of the Solicitor, U.S. Department of the Interior, Washington, DC 20240.
(ii)If the decision concerns the use and disposition of mineral resources: Associate Solicitor, Division of Mineral Resources, Office of the Solicitor, U.S. Department of the Interior, Washington, DC 20240.
(6)Idaho Field Solicitor, U.S. Department of the Interior, University Plaza, 960 Broadway Avenue, Suite 400, Boise, ID 83706.
(7)Montana
(i)Deliveries by U.S. Mail: Field Solicitor, U.S. Department of the Interior, P.O. Box 31394, Billings, MT 59107-1394.
(ii)All other deliveries: Field Solicitor, U.S. Department of the Interior, 316 North 26th Street, Room 3005, Billings, MT 59101.
(8)Nevada Regional Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Room E-1712, Sacramento, CA 95825-1890.
(9)New Mexico
(i)Deliveries by U.S. Mail: Field Solicitor, U.S. Department of the Interior, P. O. Box 1042, Santa Fe, NM 87504-1042.
(ii)All other deliveries: Field Solicitor, U.S. Department of the Interior, Paisano Building, 2968 Rodeo Plaza Drive West, Room 2070, Santa Fe, NM 87505.
(10)Oregon Regional Solicitor, Pacific Northwest Region, U.S. Department of the Interior, Lloyd 500 Building, Suite 607, 500 NE Multnomah Street, Portland, OR 97232.
(11)Utah Regional Solicitor, Intermountain Region, U.S. Department of the Interior, 6201 Federal Building, 125 South State Street, Salt Lake City, UT 84138-1180.
(12)Wyoming Regional Solicitor, Rocky Mountain Region, U.S. Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215.
(e)This paragraph applies to any appeal taken from a decision of an administrative law judge.
(1)The appellant must serve either:
(i)The attorney from the Office of the Solicitor who represented the bureau at the hearing; or
(ii)If there was no hearing, the attorney who was served with a copy of the decision by the administrative law judge.
(2)If the decision involved a mining claim on national forest land, the appellant must serve either:
(i)The attorney from the Office of General Counsel, U.S. Department of Agriculture, who represented the U.S. Forest Service at the hearing; or
(ii)If there was no hearing, the attorney who was served with a copy of the decision by the administrative law judge.
(f)Parties must serve the Office of the Solicitor as required by this section until a particular attorney of the Office of the Solicitor files and serves a Notice of Appearance or Substitution of Counsel. Thereafter, parties must serve the Office of the Solicitor as indicated by the Notice of Appearance or Substitution of Counsel.
(g)The appellant must certify service as provided in § 4.401(c)(3). § 4.414 Answers. Any person or party served with a notice of appeal that wishes to participate in the appeal must file an answer or appropriate motion with the Board within 60 days after service of the statement of reasons for appeal.
(a)The answer must respond to the statement of reasons for appeal and, if a person is representing more than one party, must state that he or she is authorized to do so.
(b)Unless the Board orders otherwise, upon motion for good cause shown:
(1)The text of the answer or motion may not exceed 30 pages (double-spaced, using standard margins and font size); and
(2)The party may not file any further pleading.
(c)Failure to file an answer or motion will not result in a default. If an answer or motion is filed or served after the time required, the Board may disregard it in deciding the appeal, unless the delay in filing is waived as provided in § 4.401(a). § 4.415 Motion for a hearing on an appeal involving questions of fact.
(a)Any party may file a motion that the Board refer a case to an administrative law judge for a hearing. The motion must state:
(1)What specific material issues of fact require a hearing;
(2)What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;
(3)What witnesses need to be examined; and
(4)What documentary evidence requires explanation, if any.
(b)In response to a motion under paragraph
(a)of this section or on its own initiative, the Board may order a hearing if:
(1)There are any material issues of fact which, if proven, would alter the disposition of the appeal; or
(2)There are significant factual or legal issues remaining to be decided and the record without a hearing would be insufficient for resolving them.
(c)If the Board orders a hearing, it must:
(1)Specify the issues of fact upon which the hearing is to be held; and
(2)Request the administrative law judge to issue:
(i)Proposed findings of fact on the issues presented at the hearing;
(ii)A recommended decision that includes findings of fact and conclusions of law; or
(iii)A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411.
(d)If the Board orders a hearing, it may:
(1)Suspend the effectiveness of the decision under review pending a final Departmental decision on the appeal if it finds good cause to do so;
(2)Authorize the administrative law judge to specify additional issues; or
(3)Authorize the parties to agree to additional issues that are material, with the approval of the administrative law judge.
(e)The hearing will be conducted under §§ 4.430 to 4.439 and the general rules in subpart B of this part. 9. Revise § 4.421 to read as follows: § 4.421 Definitions. In addition to the definitions in § 4.400, as used in this subpart: *Director* means the Director of BLM, the Associate Director, or an Assistant Director. *District manager* means the supervising BLM officer of the grazing district in which a particular range lies, or an authorized representative. *Person named in the decision* means any of the following persons identified in a final BLM grazing decision: an affected applicant, permittee, lessee, or agent or lienholder of record, or an interested public as defined in § 4100.0-5 of this title. *State Director* means the supervising BLM officer for the State in which a particular range lies, or an authorized representative. 10. In § 4.422, revise paragraphs
(c)and
(d)and add new paragraphs
(e)through
(g)to read as follows: § 4.422 Documents.
(c)*Service of documents.* A party filing a document under this subpart must serve a copy of it concurrently on:
(1)Each adverse party named in the decision, at the last address of record; and
(2)The appropriate official of the Office of the Solicitor under § 4.413(c) through (e).
(d)*Acceptable methods of service.* Service may be made in any of the following ways: If the document is . . . Service may be made by . . .
(1)A notice of appeal
(i)Personal delivery; or
(ii)Registered or certified mail, return receipt requested.
(2)Not a notice of appeal
(i)Personal delivery;
(ii)Registered or certified mail, return receipt requested;
(iii)First-class mail; or
(iv)Delivery service, if the last address of record is not a post office box.
(e)*Required statement.* At the conclusion of any document that a party must serve under this subpart, the party must sign a written statement that:
(1)Certifies that service has been or will be made in accordance with the applicable rules; and
(2)Specifies the date and manner of service.
(f)*Completion of Service.*
(1)Service is complete as shown in the following table: If service is made by . . . Service is complete when the document is . . .
(i)Personal delivery Delivered to the party or its agent.
(ii)Registered or certified mail, return receipt requested Delivered to the party or returned by the Postal Service unclaimed.
(iii)First-class mail Delivered to the party or returned by the Postal Service undelivered.
(iv)Delivery service Delivered to the party or returned by the delivery service undelivered.
(2)In the absence of evidence to the contrary, delivery under paragraphs (f)(1)(ii) through
(iv)of this section is deemed to take place 3 business days after the document was sent.
(g)*Extensions of time.* The Manager or the administrative law judge, as the case may be, may extend the time for filing or serving any document in a contest. 11. Revise §§ 4.433 and 4.434 to read as follows: § 4.433 Authority of the administrative law judge.
(a)The administrative law judge has general authority to conduct the hearing in an orderly and judicial manner, including authority to:
(1)Administer oaths;
(2)Call and question witnesses;
(3)Subpoena witnesses as specified in paragraph
(b)of this section;
(4)Issue findings and decisions as specified in paragraph
(c)of this section; and
(5)Take any other actions that the Board may prescribe in referring the case for hearing.
(b)The administrative law judge has authority to subpoena witnesses and to take and cause depositions to be taken for the purpose of taking testimony but not for discovery. This authority must be exercised in accordance with the Act of January 31, 1903 (32 Stat. 790; 43 U.S.C. 102 through 106).
(c)The administrative law judge has authority to issue any of the following, as specified by the Board under § 4.415(c)(2):
(1)Proposed findings of fact on the issues presented at the hearing;
(2)A recommended decision that includes findings of fact and conclusions of law; or
(3)A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411 within 30 days of receipt of the decision.
(d)The issuance of subpoenas, the attendance of witnesses, and the taking of depositions are governed by §§ 4.423 and 4.26. § 4.434 Conduct of hearing.
(a)The administrative law judge may seek to obtain stipulations as to material facts.
(b)Unless the administrative law judge directs otherwise:
(1)The appellant will first present its evidence on the facts at issue; and
(2)The other parties and the bureau will then present their evidence on such issues. § 4.438 [Removed] 12. § 4.438 is removed. 13. Redesignate § 4.439 as § 4.438 and revise it to read as follows: § 4.438 Action by administrative law judge.
(a)Upon completion of the hearing and the incorporation of the transcript in the record, the administrative law judge will issue and serve on the parties, as specified by the Board under § 4.415(c)(2):
(1)Proposed findings of fact on the issues presented at the hearing;
(2)A recommended decision that includes findings of fact and conclusions of law; or
(3)A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411.
(b)The administrative law judge will promptly send to the Board the record and:
(1)The proposed findings;
(2)The recommended decision; or
(3)The final decision if a timely notice of appeal is filed.
(c)The parties will have 30 days from service of proposed findings or a recommended decision to file exceptions with the Board. 14. Revise § 4.478(a) to read as follows: § 4.478 Appeals to the Board of Land Appeals; judicial review.
(a)Any person who has a right of appeal under § 4.410 or other applicable regulation may appeal to the Board from an order of an administrative law judge granting or denying a petition for a stay in accordance with § 4.411. Subpart L—Special Rules Applicable to Surface Mining Hearings and Appeals 15. The authority citation for Part 4, Subpart L, continues to read as follows: Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301 16. Add § 4.1117 to subpart L to read as follows: § 4.1117 Reconsideration. A party may file a petition for reconsideration of any decision of the Board under this subpart within 60 days after the date of the decision. The provisions of § 4.403 apply to a petition filed under this paragraph. 17. Revise § 4.1270(f) to read as follows: § 4.1270 Petition for discretionary review of a proposed civil penalty.
(f)If the petition is granted, the rules in §§ 4.1273 through 4.1275 are applicable, and the Board must use the point system and conversion table contained in 30 CFR part 723 or 845 in recalculating assessments. However, the Board has the same authority to waive the civil penalty formula as that granted to administrative law judges in § 4.1157(b)(1). If the petition is denied, the decision of the administrative law judge is final for the Department, subject to § 4.5. § 4.1276 [Removed] 18. Remove § 4.1276. 19. Revise § 4.1286 to read as follows: § 4.1286 Motion for a hearing on an appeal involving issues of fact.
(a)Any party may file a motion that the Board refer a case to an administrative law judge for a hearing. The motion must state:
(1)What specific material issues of fact require a hearing;
(2)What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;
(3)What witnesses need to be examined; and
(4)What documentary evidence requires explanation, if any.
(b)In response to a motion under paragraph
(a)of this section or on its own initiative, the Board may order a hearing if:
(1)There are any material issues of fact which, if proven, would alter the disposition of the appeal; or
(2)There are significant factual or legal issues remaining to be decided and the record without a hearing would be insufficient for resolving them.
(c)If the Board orders a hearing, it must:
(1)Specify the issues of fact upon which the hearing is to be held; and
(2)Request the administrative law judge to issue:
(i)Proposed findings of fact on the issues presented at the hearing;
(ii)A recommended decision that includes findings of fact and conclusions of law; or
(iii)A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411 within 30 days of the date of receipt of the decision.
(d)If the Board orders a hearing, it may:
(1)Suspend the effectiveness of the decision under review pending a final Departmental decision on the appeal if it finds good cause to do so;
(2)Authorize the administrative law judge to specify additional issues; or
(3)Authorize the parties to agree to additional issues that are material, with the approval of the administrative law judge.
(e)The hearing will be conducted under §§ 4.1100, 4.1102 through 4.1115, 4.1121 through 4.1127, and 4.1130 through 4.1141. [FR Doc. E7-3774 Filed 3-7-07; 8:45 am] BILLING CODE 4310-79-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7710] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. National Environmental Policy Act This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. Regulatory Flexibility Act As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. Regulatory Classification This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. Executive Order 13132, Federalism This proposed rule involves no policies that have federalism implications under Executive Order 13132. Executive Order 12988, Civil Justice Reform This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The table published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Effective Modified Communities affected Del Norte County, California and Incorporated Areas Middle Fork Smith River At the Confluence with Smith River None +360 Del Norte County (Unincorporated Areas). Approximately 1.8 miles Upstream of Horace Gasquet Memorial Bridge None +432 Smith River (Gasquet Reach)—North Fork Smith River Approximately 300 feet Upstream of Mary Adams Memorial Road/US Highway 99 None +304 Del Norte County (Unincorporated Areas). Approximately 4000 feet Upstream of Confluence With Middle Fork Smith River None +379 Smith River (Hiouchi Reach) Approximately 2000 feet Upstream of U.S. Highway 101 None +47 Del Norte County (Unincorporated Areas). Approximately 100 feet Downstream of South Fork Road None +152 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Del Norte County (Unincorporated Areas) Maps are available for inspection at 981 H Street, Suite 110, Crescent City, CA 95531. Send comments to The Honorable David Finigan, Chairperson, 981 H Street, Suite 200, Crescent City, CA 95531. Hopkins County, Kentucky and Incorporated Areas Clear Creek Approximately 1450 feet downstream of KY 2171 None +399 City of Earlington, Hopkins County (Unincorporated Areas). Approximately 140 feet upstream of West Thompson Avenue None +418 Clear Creek Tributary Confluence with Clear Creek None +405 City of Earlington. Approximately 50 feet downstream of Loch Mary Reservoir None +422 Elk Creek Confluence with Pond River None +387 Hopkins County (Unincorporated Areas). Approximately 8600 feet downstream of Brown Road None +387 Approximately 750 feet downstream of Island Ford Road None +406 Approximately 320 feet downstream of Fowler Road None +412 Tributary 10.5 Approximately 100 feet upstream of confluence with Elk Creek Tributary 5.1 None +403 City of Madisonville, Hopkins County (Unincorporated Areas). Approximately 450 feet upstream of Island Park Drive None +425 Tributary 4 Confluence with Elk Creek None +412 City of Madisonville, Hopkins County (Unincorporated Areas). Approximately 120 feet downstream of Stagecoach Road None +439 Tributary 5.1 Approximately 1660 feet downstream of McGrew Lane None +400 City of Madisonville, Hopkins County (Unincorporated Areas). Approximately 170 feet upstream of Edward T. Breathitt Parkway None +426 Otter Creek Confluence with Pond River None +387 Hopkins County (Unincorporated Areas). Approximately 5300 feet upstream of Vandetta Road *386 +387 Pleasant Run Approximately 580 feet downstream of North Hopkinsville Street None +406 City of Nortonville. Approximately 1550 feet upstream of Seaboard System Railroad None +411 Pond River Confluence with Otter Creek None +387 Hopkins County (Unincorporated Areas). Approximately 14,570 feet upstream of Anton Road None +387 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Earlington Maps are available for inspection at 56 North Main Street, Madisonville, KY 42431. Send comments to The Honorable Michael Seiber, Mayor, City of Earlington, 103 West Main Street, Earlington, KY 42410. City of Madisonville Maps are available for inspection at 56 North Main Street, Madisonville, KY 42431. Send comments to The Honorable William Cox, Jr., Mayor, City of Madisonville, 37 East Center Street, Madisonville, KY 42431. City of Nortonville Maps are available for inspection at 56 North Main Street, Madisonville, KY 42431. Send comments to The Honorable James Noel, Mayor, City of Nortonville, 199 South Main Street, Nortonville, KY 42442. Hopkins County (Unincorporated Areas) Maps are available for inspection at 56 North Main Street, Madisonville, KY 42431. Send comments to The Honorable Donald Carroll, Judge Executive, Hopkins County, Hopkins County Government Building, P.O. Box 523, Madisonville, KY 42431. Webb County, Texas and Incorporated Areas Chacon Creek Confluence with Rio Grande *387 +394 City of Laredo, Webb County (Unincorporated Areas). Approximately 2000 feet downstream from confluence with Casa Blanca Lake None +453 Tributary 1 Confluence with Chacon Creek *387 +394 City of Laredo. Approximately 250 feet upstream from intersection with Chestnut *429 +422 Tributary 2 Confluence with Chacon Creek *396 +394 City of Laredo, Webb County (Unincorporated Areas). Approximately 1500 feet downstream from Loop 20 None +398 Tributary 3 Confluence with Chacon Creek None +436 City of Laredo, Webb County (Unincorporated Areas). Approximately 2500 feet upstream from the intersection with Highway 59 None +444 Deer Creek Confluence with Rio Grande None +411 City of Laredo. Intersection with Logistic Road None +476 Dellwood Tributary (Previously Las Manadas Creek Tributary 1) Confluence with Las Manadas Creek *402 +410 City of Laredo, Webb County (Unincorporated Areas). Approximately 2000 feet upstream from intersection with FM 3464 None +486 Las Manadas Creek Confluence with Rio Grande *402 +408 City of Laredo, Webb County (Unincorporated Areas). Approximately 1750 feet upstream from intersection with Loop 20 None +552 Tributary 1 Confluence with Las Manadas Creek *403 +412 City of Laredo, Webb County (Unincorporated Areas). Approximately 200 feet upstream from Springfield Drive None +468 Tributary 1A Confluence with Las Manadas Creek Tributary 1 None +430 City of Laredo. Approximately 1200 feet upstream from Dover/Stratford None +464 Tributary 2 (Formerly Las Manadas Creek Tributary 3) Confluence with Las Manadas Creek *411 +418 City of Laredo, Webb County (Unincorporated Areas). Approximately 5050 feet upstream from intersection with FM 3464 None +489 Tributary 2A Confluence with Las Manadas Creek Tributary 2 None +447 City of Laredo. Approximately 3225 feet upstream from confluence with Las Manadas Creek Tributary 2 None +459 Rio Grande Approximately 1750 feet upstream from intersection with Riverhill Road None +391 City of Laredo, Webb County (Unincorporated Areas). Confluence with Deer Creek None +411 Tex-Mex Railroad Tributary Confluence with Chacon Creek *402 +400 City of Laredo, Webb County (Unincorporated Areas). Approximately 1250 feet upstream from intersection with Tex-Mex Railroad None +423 Zacate Creek Approximately 250 feet downstream from the intersection with Mexican Railroad *395 +396 City of Laredo. Confluence with Rio Grande *388 +399 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Laredo Maps are available for inspection at 1120 San Bernardo, Laredo, TX 78042. Send comments to The Honorable Raul G. Salinas, Mayor, City of Laredo, 1110 Houson Street, Laredo, TX 78040. Webb County (Unincorporated Areas) Maps are available for inspection at 1110 Washington Street, Suite 302, Laredo, TX 78040. Send comments to The Honorable Danny Valdez, County Judge, 1000 Houston, 3rd Flood, Webb County Courthouse, Laredo, TX 78040. Clark County, Washington and Incorporated Areas Burnt Bridge Creek Just upstream of Interstate 205 *189 +192 Clark County (Unincorporated Areas). Approximately 1200 feet upstream of NE 152nd Avenue *196 +200 City of Vancouver. China Ditch Just upstream of NE Ward Road None +252 Clark County (Unincorporated Areas). Approximately 2200 feet upstream of NE 144th Street None +275 Curtin Creek (Glenwood Creek) At confluence with Salmon Creek None +172 Clark County (Unincorporated Areas). Just upstream of Anderson Road None +260 Dead Lake Near NE Everett Street/WA State Hwy 500 None +191 Clark County (Unincorporated Areas). Near NE Lake Road None +191 Fifth Plain Creek Upstream side of NE 4th Plain Boulevard None +215 Clark County (Unincorporated Areas). About 0.7 mile above NE Davis Road None +342 City of Vancouver. Gee Creek About 0.14 mile upstream of Main Street, at N Main Avenue in Ridgefield *25 +27 Clark County (Unincorporated Areas). Approximately 0.5 mile upstream of Interstate 5 None +315 Town of Ridgefield. Lacamas Creek At confluence with Washougal River None +35 Clark County (Unincorporated Areas). Just downstream of NE Goodwin Road None +193 City of Camas. Lacamas Lake At SE Everett Road/WA State Hwy 500 None +191 Clark County (Unincorporated Areas). At NE 232nd Avenue/NE Leadbetter Road None +191 Mill Creek At confluence with Salmon Creek None +137 Clark County (Unincorporated Areas). Just downstream of NW 20th Avenue None +279 City of Battle Ground. Weaver Creek At confluence with Salmon Creek None +210 Clark County (Unincorporated Areas). Approximately 400 feet west of NE 167th Avenue None +345 City of Battle Ground. * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Battle Ground Maps are available for inspection at 109 Southwest First Street, Suite 127, Battle Ground, WA 98604-2818. Send comments to The Honorable John Idsinga, Mayor, City of Battle Ground, 109 Southwest First Street, Suite 220, Battle Ground, WA 98604. City of Camas Maps are available for inspection at 616 Northeast Fourth Avenue, Camas, WA 98607. Send comments to The Honorable Paul Dennis, Mayor, City of Camas, 616 Northeast Fourth Avenue, Camas, WA 98607. City of Vancouver Maps are available for inspection at c/o Chad Eiken, 313 Main Street, Vancouver, WA 98665. Send comments to The Honorable Royce Pollard, Mayor, City of Vancouver, 210 East 13th Street, Vancouver, WA 98668. Town of Ridgefield Maps are available for inspection at 127 North Main Avenue, Ridgefield, WA 98642. Send comments to The Honorable Gladys Doriot, Mayor, City of Ridgefield, P.O. Box 608, Ridgefield, WA 98642. Clark County (Unincorporated Areas) Maps are available for inspection at 1300 Franklin Street, Third Floor, Vancouver, WA 98666-8810. Send comments to The Honorable Bill Barron, County Administrator, Clark County, P.O. Box 5000, Vancouver, WA 98666-5000. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: March 1, 2007. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-4153 Filed 3-7-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7709] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. National Environmental Policy Act This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. Regulatory Flexibility Act As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. Regulatory Classification This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. Executive Order 13132, Federalism This proposed rule involves no policies that have federalism implications under Executive Order 13132. Executive Order 12988, Civil Justice Reform This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Effective Modified Communities affected Sandoval County, New Mexico and Incorporated Areas Tributary A (southern split) Approximately 130 feet upstream from the convergence with Tributary A None +5417 City of Rio Rancho. Approximately 115 feet upstream from 11th street None +5436 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Rio Rancho Maps are available for inspection at 3900 Southern Blvd, Rio Rancho, NM 87124. Send comments to The Honorable Kevin Jackson, Mayor, City of Rio Rancho, 3900 Southern Blvd, PO Box 15550, Rio Rancho, NM 87124. Bell County, Texas and Incorporated Areas Acorn Creek Approximately 300 feet upstream from confluence with Trimmier Creek None +678 City of Killeen. Approximately 1.33 miles from Stagecoach Road None +807 Caprice Ditch (Formerly Site Tributary 7) Confluence with Nolan Creek None +740 City of Harker Heights. Intersection with Schwald Road None +854 City of Killeen Bell County (Unincorporated Areas). Chaparral Creek Approximately 300 feet upstream from the confluence with Trimmier Creek None +727 City of Killeen Bell County (Unincorporated Areas). Approximately 960 feet upstream from the Chaparral Road None +839 Edgefield Creek Approximately 936 feet upstream from the confluence with South Nolan Creek None +912 City of Killeen. Approximately 700 feet upstream from Edgefield Street None +944 Embers Creek Confluence with Trimmier Creek None +774 City of Killeen. Approximately 2060 feet upstream from Stagecoach Road None +807 Fryers Creek Approximately 100 feet upstream from Waters Dairy Road *591 +590 City of Temple. Approximately 500 feet downstream from State Highway 363 *623 +622 Harker Heights Tributary 4 Confluence with Nolan Creek *740 +746 City of Harker Heights. Approximately 300 feet upstream from Stillwood Drive *774 +773 City of Killeen. Hilliard Creek Confluence with Long Branch Ditch None +801 City of Killeen. Approximately 440 feet upstream from Transverse Drive None +839 Hilliard Tributary 1 Confluence with Hilliard Creek None +830 City of Killeen. Approximately 1300 feet upstream from confluence with Hilliard Creek None +845 Hog Pen Creek Approximately 1000 feet upstream from Poison Oak Road None +547 City of Temple. Approximately 1150 feet upstream from FM2305 None +619 Tributary 1 Confluence with Hog Pen Creek None +575 City of Temple. Approximately 1500 feet upstream from the confluence with Hog Pen Creek None +592 Tributary 2 Confluence with Hog Pen Creek None +561 City of Temple. Approximately 1000 feet upstream from Tarver Drive None +596 Liberty Ditch (Formerly Nolan Creek Tributary 3) Confluence with Nolan Creek +779 +783 City of Killeen. Approximately 740 feet upstream from Poage Avenue None +845 Little Nolan Creek Confluence with Nolan Creek *747 +751 City of Killeen. West Trimmier Drive *904 +908 Long Branch Ditch (Formerly Long Branch) Confluence with Nolan Creek *762 +765 City of Killeen. County Boundary *826 +827 North Reese Creek Approximately 625 feet downstream from Reese Creek Highway None +873 City of Killeen, Bell County (Unincorporated Areas). Approximately 4125 feet upstream from Laura Drive None +939 Tributary 1 Approximately 400 feet downstream from Maxdale Street None +885 City of Killeen Bell County (Unincorporated Areas). Approximately 920 feet upstream from Bunny Trail None +953 Tributary 1A Approximately 178 feet upstream from confluence with North Reese Creek Tributary 1 None +944 Bell County (Unincorporated Areas). Approximately 1638 feet upstream from the confluence with North Reese Creek Tributary 1 None +965 Tributary 3 Approximately 1630 feet upstream from confluence with North Reese Creek None +867 City of Killeen Bell County (Unincorporated Areas). Approximately 2700 feet upstream from Stagecoach Road None +916 Tributary 4 Approximately 960 feet upstream from confluence with North Reese Creek None +877 City of Killeen. Approximately 1620 feet upstream from confluence with North Reese Creek None +890 Old Florence Ditch (Formerly Little Nolan Creek Tributary 2) Confluence with Little Nolan Creek *822 +825 City of Killeen. Approximately 220 feet upstream from Trimmier Road None +897 Rainforest Creek Approximately 515 feet upstream from confluence with South Nolan Creek None +901 City of Killeen. Approximately 1740 feet upstream from Waterfall Road None +935 Robinette Creek Approximately 324 feet upstream from confluence with South Nolan Creek None +935 City of Killeen. Approximately 920 feet upstream from Robinette Road None +949 Rock Creek Approximately 3000 feet downstream from Chaparral Road None +824 City of Killeen, Bell County (Unincorporated Areas). Approximately 3500 feet upstream from Chaparral Road None +877 Tributary 1 Approximately 268 feet upstream from confluence with Rock Creek None +827 City of Killeen, Bell County (Unincorporated Areas). Approximately 1740 feet upstream from Chaparral Road None +862 Tributary 1A Approximately 450 feet upstream from confluence with Rock Creek Tributary 1 None +835 Bell County (Unincorporated Areas). Approximately 1140 feet upstream from dam None +856 South Nolan Creek Approximately 2550 feet downstream from Watercrest Road None +903 City of Killeen. Approximately 2340 feet upstream from Stan Schlueter Road None +981 Steward Ditch (Formerly Nolan Creek Tributary 4) Confluence with Nolan Creek *796 +803 City of Killeen. Approximately 1360 feet upstream from Duncan Ave. *855 +852 Trimmier Creek Approximately 630 feet downstream from confluence with Acorn Creek None +686 City of Killeen. Approximately 2900 feet upstream from Stagecoach Road None +834 Trimmier Road Ditch (Formerly Little Nolan Creek Tributary 1) Confluence with Little Nolan Creek *793 +800 City of Killeen. Approximately 2400 feet upstream from Old FM 440 None +965 Yowell Creek Approximately 5180 feet upstream from confluence with Chaparral Creek None +793 City of Killeen. Approximately 1250 feet upstream from Featherline Road None +878 Yowell Creek Tributary Confluence with Yowell Creek None +788 City of Killeen. Approximately 1250 feet upstream from Featherline Road None +863 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Harker Heights Maps are available for inspection at City Hall, 305 Miller's Crossing, Harker Heights, TX 76548. Send comments to The Honorable Ed Mullen, Mayor, City of Harker Heights, 305 Miller's Crossing, Harker Heights, TX 76548. City of Killeen Maps are available for inspection at City Hall, 101 North College Street, Killeen, TX 76540. Send comments to The Honorable Timothy Hancock, Mayor, City of Killeen, P.O. Box 1329, Killeen, TX 76540. City of Temple Maps are available for inspection at City Hall, 2 North Main Street, Temple, TX 76501. Send comments to The Honorable Bill Jones, III, Mayor, City of Temple, 2 North Main Street, Temple, TX 76501. Bell County (Unincorporated Areas) Maps are available for inspection at Bell County Courthouse, 101 E. Central Ave., Belton, TX 76513. Send comments to The Honorable Jon Burrows, Judge, Bell County, P.O. Box 768, Belton, TX 76513. Henrico County, Virginia and Incorporated Areas Allens Branch Approximately at the confluence with Chickahominy River. None +197 Henrico County (Unincorporated Areas). Approximately 250 feet downstream from the I-295 Ramp. None +214 Chickahominy River Approximately at Creighton Road None +77 Henrico County (Unincorporated Areas). Approximately 1900 feet downstream from Shady Grove Road None +218 Copperas Creek Approximately at the confluence with Tuckahoe Creek None +144 Henrico County (Unincorporated Areas). Approximately 150 feet downstream from Waterford Way East None +219 Tributary 2 Approximately at the confluence with Copperas Creek None +160 Henrico County (Unincorporated Areas). Approximately 2000 feet upstream from Ridgefield Parkway/Cambridge Drive None +206 Fourmile Creek Approximately at the confluence with James River None +11 Henrico County (Unincorporated Areas). Approximately 2000 feet upstream from Doran Road None +92 Tributary 7 Approximately at the confluence with Fourmile Creek None +85 Henrico County (Unincorporated Areas). Approximately 775 feet upstream from the Footbridge None +88 Gillies Creek Tributary 1 Approximately at the confluence with Gillies Creek None +121 Henrico County (Unincorporated Areas). Approximately 250 feet downstream from South Kalmia Avenue None +154 Harding Branch Approximately at the confluence with Tuckahoe Creek None +148 Henrico County (Unincorporated Areas). Approximately 2000 feet upstream from Park Terrace Drive None +241 Tributary 1 Approximately at the confluence with Harding Branch None +168 Henrico County (Unincorporated Areas). Approximately 1000 feet upstream from the confluence with Harding Branch None +171 Heckler Village Tributary 1 Approximately at the confluence with Gillies Creek None +109 Henrico County (Unincorporated Areas). Approximately 1100 feet upstream of Wynfield Terrace None +145 Tributary 2 Approximately at the confluence with Gillies Creek None +138 Henrico County (Unincorporated Areas). Approximately 1600 feet upstream from Wynfield Terrace None +158 Horsepen Branch Approximately at the confluence with Upham Brook None +174 Henrico County (Unincorporated Areas). Approximately 300 feet upstream from Devers Road None +218 James River Approximately 5550 feet southeast of the intersection of Osborne Landing and Kingsland Road None +16 Henrico County (Unincorporated Areas). Approximately 1250 feet Northwest of the intersection of Stancraft Way and Old Osborne Turnpike None +32 Jordans Branch Approximately at 2550 feet downstream of Interstate 64 None +160 Henrico County (Unincorporated Areas). Approximately at 710 feet upstream of the Monument Avenue None +208 Meredith Branch Approximately at the confluence with Chickahominy River None +186 Henrico County (Unincorporated Areas). Approximately 500 feet downstream from Broad Meadows Road None +230 North Run Approximately at the confluence with Upham Brook +117 +120 Henrico County (Unincorporated Areas). Approximately 400 feet upstream from the confluence with Upham Brook +119 +120 Rooty Branch Approximately 600 feet downstream from Yates Lane None +221 Henrico County (Unincorporated Areas). Approximately 1800 feet upstream from Nuckols Road None +233 Tributary A To Gillies Creek Tributary 1 Approximately at the confluence with Gillies Creek Tributary 1 None +145 Henrico County (Unincorporated Areas). Approximately 1200 feet upstream from Yates Lane None +158 Tributary A to Gillies Creek Tributary 1 Approximately at the confluence with Tributary A to Gillies Creek Tributary 1 None +150 Henrico County (Unincorporated Areas). Tributary Approximately 750 feet south from Nine Mile Road None +160 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Henrico County (Unincorporated Areas) Maps are available for inspection at Henrico West End Government Center, 4301 E. Parham Rd., Richmond, VA 23228. Send comments to Mr. Robert Thompson, Director of Public Works, P.O. Box 27032, Richmond, VA 23273. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: February 28, 2007. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-4154 Filed 3-7-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-D-7694] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. National Environmental Policy Act This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. Regulatory Flexibility Act As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. Regulatory Classification This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. Executive Order 13132, Federalism This proposed rule involves no policies that have federalism implications under Executive Order 13132. Executive Order 12988, Civil Justice Reform This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Effective Modified Communities affected Livingston County, Illinois and Incorporated Areas Vermilion River Approximately 4H Park Road. None +633 Livingston County (Unincorporated Areas). Approximately 1,550 feet above 4H Park Road None +633 Vermilion River Approximately Manlove Street extended None +641 Livingston County (Unincorporated Areas). Approximately 700 feet above Pearl Street extended None +642 Indian Creek Approximately 2,775 feet above Road 900N None +666 Livingston County (Unincorporated Areas). Approximately Third Street extended None +674 Gooseberry Creek Approximately East Livingston Road (Livingston/Grundy Co. Boundary) None +619 Livingston County (Unincorporated Areas). Approximately 1,050 feet downstream of Union Pacific Railroad None +628 Gooseberry Creek Approximately Washington Street None +641 Livingston County (Unincorporated Areas). Approximately 150 feet above Fieldman Road (CR-3100N) # Depth in feet above ground. * National Geodetic Vertical Datum. + National American Vertical Datum. ADDRESSES Livingston County (Unincorporated Areas) Maps are available for inspection at the Livingston County Regional Planning Commission, 110 West Water Street, Suite 3, Pontiac, IL 61764. Send comments to The Honorable William Flott, County Board Chairman, Livingston County Courthouse, 112 W. Madison Street, Pontiac, IL 61764. Randolph County, North Carolina and Incorporated Areas Betty McGees Creek At the confluence with Uwharrie River None +397 Randolph County (Unincorporated Areas). Approximately 3.7 miles upstream of Lassiter Mill Road (State Road 1107) None +505 Caraway Creek At the confluence with Uwharrie River None +411 Randolph County (Unincorporated Areas), City of Archdale. Approximately 1.6 miles upstream of Roy Farlow Road (State Road 1534) None +715 Hannahs Creek At the confluence with Uwharrie River None +392 Randolph County (Unincorporated Areas). Approximately 0.6 mile upstream of the confluence of Robbins Branch None +517 Jackson Creek At the confluence with Uwharrie River None +418 Randolph County (Unincorporated Areas). Approximately 0.7 mile upstream of Jackson Creek Road (State Road 1314) None +565 Lakes Creek At the confluence with Uwharrie River None +372 Randolph County (Unincorporated Areas). Approximately 0.4 mile upstream of the confluence with Uwharrie River None +418 Laniers Creek At the confluence with Uwharrie River None +385 Randolph County (Unincorporated Areas). Approximately 150 feet downstream of Johnson Farm Road (State Road 1262) None +558 Little Uwharrie River At the confluence with Uwharrie River None +457 Randolph County (Unincorporated Areas), City of Trinity. Approximately 0.4 mile upstream of NC Highway 62 None +891 Mill Creek At the confluence with Uwharrie River None +384 Randolph County (Unincorporated Areas). Approximately 390 feet upstream of Lassiter Mill Road (State Road 1107) None +400 Narrows Branch At the confluence with Uwharrie River None +371 Randolph County (Unincorporated Areas). Approximately 0.4 mile upstream of the confluence with Uwharrie River None +460 Second Creek At the confluence with Uwharrie River None +396 Randolph County (Unincorporated Areas). Approximately 0.8 mile upstream of the confluence with Second Creek Tributary 3 None +505 Tributary 1 At the confluence with Second Creek None +396 Randolph County (Unincorporated Areas). Approximately 0.4 mile upstream of the confluence with Second Creek None +407 Silver Run Creek At the confluence with Uwharrie River None +394 Randolph County (Unincorporated Areas). Approximately 275 feet upstream of Lassiter Mill Road (State Road 1107) None +402 Toms Creek At the confluence with Uwharrie River None +402 Randolph County (Unincorporated Areas). Approximately 1.3 miles upstream of Richey Road (State Road 1306) None +501 Two Mile Creek At the confluence with Uwharrie River None +394 Randolph County (Unincorporated Areas). Approximately 1,970 feet upstream of the confluence with Uwharrie River None +398 Uwharrie River At the Montgomery/Randolph County boundary None +369 Randolph County (Unincorporated Areas), City of Trinity. Approximately 130 feet upstream of Old Mendenhall Road (State Road 1616) None +791 Tributary 1 At the confluence with Uwharrie River None +372 Randolph County (Unincorporated Areas). Approximately 1,050 feet upstream of the confluence with Uwharrie River None +380 Tributary 2 At the confluence with Uwharrie River None +387 Randolph County (Unincorporated Areas). Approximately 0.6 mile upstream of the confluence with Uwharrie River None +400 Tributary 3 At the confluence with Uwharrie River None +388 Randolph County (Unincorporated Areas). Approximately 1,890 feet upstream of the confluence with Uwharrie River None +403 Tributary 6 At the confluence with Uwharrie River None +464 Randolph County (Unincorporated Areas). Approximately 335 feet upstream of Skeens Mill Road (State Road 1550) None +483 Tributary 7 At the confluence with Uwharrie River None +520 Randolph County (Unincorporated Areas). Approximately 0.4 mile upstream of Sumner Road (State Road 1546) None +540 Tributary 8 At the confluence with Uwharrie River None +557 Randolph County (Unincorporated Areas), City of Archdale. Approximately 190 feet upstream of Alexandria Drive None +663 Walkers Creek At the confluence with Uwharrie River None +376 Randolph County (Unincorporated Areas). Approximately 1,775 feet upstream of the confluence with Uwharrie River None +385 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Randolph County (Unincorporated Areas) Maps are available for inspection at the Randolph County Planning and Zoning Department, 725 McDowell Road, Asheboro, North Carolina. Send comments to Mr. Richard T. Wells, Randolph County Manager, P.O. Box 4728, Asheboro, North Carolina 27204-4728. City of Archdale Maps are available for inspection at the Archdale City Hall, 307 Balfour Drive, Archdale, North Carolina. Send comments to The Honorable Bert Lance Stone, Mayor of the City of Archdale, P.O. Box 14068, Archdale, North Carolina 27263. City of Trinity Maps are available for inspection at the Trinity City Hall, 6701 NC Highway 62, Trinity, North Carolina. Send comments to The Honorable Fran Andrews, Mayor of the City of Trinity, P.O. Box 50, Trinity, North Carolina 27370. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: February 28, 2007. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-4155 Filed 3-7-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Monongahela River Basin Population of the Longnose Sucker as Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Monongahela River Basin population of *Catostomus catostomus* (longnose sucker) as endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing *C. catostomus* may be warranted. This finding is based on our determination that there is insufficient evidence to indicate that the Monongahela River Basin population of *C. catostomus* represents a distinct population segment
(DPS)and, therefore, it cannot be considered a listable entity under section 3(15) of the Act. Accordingly, we will not initiate a status review in response to this petition. However, the public may at any time submit to us information concerning whether the Monongahela River Basin population of *Catostomus catostomus* meets the DPS criteria for this otherwise widespread species. DATES: The finding announced in this document was made on March 8, 2007. ADDRESSES: The complete file for this finding is available for public inspection, by appointment, during normal business hours at the Pennsylvania Field Office, U.S. Fish and Wildlife Service, 315 South Allen Street, Suite 322, State College, PA 16801. Submit new information, materials, comments, or questions concerning the status of or threats to this taxon to us at the above address. FOR FURTHER INFORMATION CONTACT: David Densmore, Supervisor, Pennsylvania Field Office, U.S. Fish and Wildlife Service (see ADDRESSES ) (telephone 814-234-4090; facsimile 814-234-0748). SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of Act (16 U.S.C. 1531 *et seq.* ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the **Federal Register** . Our standard for substantial information within the Code of Federal Regulations
(CFR)with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species. In making this finding, we relied on information provided by the petitioners and otherwise available in our files at the time of the petition review and evaluated this information in accordance with 50 CFR 424.14(b). Our process of making a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. Unless otherwise noted, the following summary regarding the species, its distribution, and taxonomy was provided in the petition. Petition On December 27, 2002, we received a formal petition from the Fisheries Technical Committee of the Pennsylvania Biological Survey to list a population of longnose sucker ( *Catostomus catostomus* ), that is restricted to the Monongahela River Basin, as an endangered species under section 4 of the Act. The petition also requested that subsequent to listing, the Service make a definitive determination of the population's taxonomic status, address direct and potential threats, investigate life history, and reintroduce the species within its historic range in the Monongahela River Basin. Action on the petition was precluded by court orders and settlement agreements for other listing actions that required nearly all of our listing funds for fiscal year 2003. A letter was sent to the petitioners on January 17, 2003, acknowledging receipt of the petition and explaining the reasons for the delay in processing. Species Information *Catostomus catostomus* , or longnose sucker, is a member of the family *Catostomidae* , a group of freshwater, principally substrate foraging fishes. This species was described by Forster in 1773, based on specimens collected from tributaries to the Hudson Bay. The subject of the petition is a disjunct population that occurs in the Monongahela River drainage in West Virginia, western Maryland, and southwestern Pennsylvania. This southern population is geographically separated from the larger range of the fish. According to the petition, no other populations are known from the Ohio River drainage, or any other Mississippi River basin tributaries, excepting the Missouri River (Gilbert & Lee, 1980; Page and Burr, 1991). The petition utilizes several references regarding longnose sucker life history and habitat (e.g., Harris 1962; Becker 1983; Cooper 1983; Geen et al., 1966; Smith 1985). None are specific to longnose suckers in the Monongahela River system, but present general information concerning longnose sucker habitats and life history. Longnose suckers occur in clear, cold waters throughout much of northern North America and parts of eastern Asia. Those in the Monongahela River Basin generally occur in small to medium-sized streams, most often in deeper pools with either boulder-rubble substrate or a significant amount of coarse, woody debris. These pools and runs (streams) are usually immediately below faster-flowing riffle areas. On the basis of available information, the Monongahela River population occurs primarily in clear, cool streams, which appear to be consistent with habitats utilized elsewhere throughout its range. The petitioners do not reference specific studies regarding reproductive behavior of the longnose sucker population in the Monongahela River Basin, but the species has been documented to spawn in water temperatures ranging from 10 to 15 degrees Celsius (50 to 59 degrees Fahrenheit), with schools of the fish gathering over gravel substrates in stream riffles and lake shoals. Longnose suckers exhibit high fecundity, with egg counts ranging from 17,000 to more than 60,000 per female. Annual survival of eggs and fry is low, leading to low annual recruitment into juvenile age classes. The species has been documented to begin to reach maturity at 4 years of age for males and 5 years of age for females in western Lake Superior. Longnose suckers exhibit some variation in mature size across their range; the largest individual recorded was a 642 millimeter
(mm)(25.3 inches) female estimated to be 19 years old from Great Slave Lake, Northwest Territories, Canada. Populations of apparently “stunted” individuals have also been reported in parts of the species’ range. Whether environmentally influenced or genetic, the largest specimen recorded from the Monongahela River drainage is less than 250 mm. Distribution The longnose sucker is among the most widely distributed of North American freshwater fishes, ranging, in the east from western Labrador and Quebec; south to West Virginia; west to Nebraska, Colorado, and Washington; and north throughout most of Alaska and Canada, including the Arctic and extending into eastern Siberia. The Monongahela River drainage in West Virginia, western Maryland, and southwestern Pennsylvania supports the disjunct population that is the subject of the petition. The petition reports 39 collection records for the longnose sucker from the Monongahela River Basin (with references including Jordon 1878, Goldsborough and Clark 1908, and Hendricks 1980). With the exception of a collection record from the Tygart Valley River, West Virginia, and the Youghiogheny River (a Monongahela River tributary), Allegheny County, Pennsylvania, longnose sucker collection records are restricted to a Youghiogheny River tributary drainage, the Casselman River Basin in Garrett County, Maryland and Somerset County, Pennsylvania. The most recent reported collection from Maryland was in 1978, and the species is considered to be extirpated from the State (Maryland Department of Natural Resources 2004). The petition concludes that since 2000, longnose suckers have only been collected in the Monongahela River Basin in Pennsylvania within reaches of four Casselman River tributary streams: Elklick Creek, Flaugherty Creek, Piney Creek, and Whites Creek. Taxonomy The petition references McPhail and Taylor
(1990)in asserting that across the species' range, longnose suckers are morphologically variable, with some evidence of eastern and western divergence across North America. However, no such variation is described for the population in the Monongahela River Basin. The Monongahela River Basin is geographically separated from other waters supporting this species by a watershed divide; the closest population is the one that occurs in the Lake Erie Basin, more than 257 kilometers
(km)(160 miles (mi)) to the north. The petitioners present information that theorizes that longnose suckers in the Monongahela River Basin became isolated from the main populations to the north through stream capture and changing flow patterns that occurred during the Wisconsin glacial retreat, and that this subpopulation may have persisted in the Monongahela River Basin for 15,000 years or more. The petitioners suggest that this period of isolation may have resulted in genetic differences from other longnose sucker populations. They indicate that the Salish sucker, a longnose sucker population native to the Frazier River and Puget Sound, Canada, appears to be genetically distinct from other northwestern longnose suckers. The petition uses this example to suggest that the Monongahela River population of the longnose sucker may also be genetically distinct from other longnose sucker populations. However, the petition does not present any genetic data or other specific information to support this hypothesis. Rather, the petition specifically requests that the Service make a “definitive determination of its taxonomic status.” Distinct Vertebrate Population Segments The petitioners have asked us to consider listing the longnose sucker in the Monongahela River Basin in Pennsylvania, Maryland, and West Virginia as endangered. Under the Act, we can consider for listing any species, subspecies, or distinct population segment
(DPS)of any species of vertebrate fish or wildlife that interbreeds when mature, if information is substantial to indicate that such action may be warranted. To implement the measures prescribed by the Act and its Congressional guidance (see Senate Report 151, 96th Congress, 1st Session), we developed a joint policy with the National Oceanic and Atmospheric Administration entitled “Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Act” (61 FR 4725; February 7, 1996). According to the Service's policy on distinct vertebrate population segments, the three elements considered regarding the potential recognition of a DPS as endangered or threatened are:
(1)The discreteness of the population segment in relation to the remainder of the species to which it belongs;
(2)the significance of the population segment to the species to which it belongs; and
(3)the population segment's conservation status in relation to the Act's standards for listing (i.e., when treated as if it were a species, is the population segment endangered or threatened?). Following is our evaluation of these elements in relation to the petitioned entity, the longnose sucker in the Monongahela River Basin. *Discreteness:* A population segment of a vertebrate species may be considered discrete if it is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors, or if it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. The petition states that the longnose sucker population in the Monongahela River Basin is the only population of this species recorded from the Ohio River Basin, and is markedly separated from the rest of the species' range, with the nearest population occurring across a major watershed boundary in the Lake Erie Basin at least 265 km (160 mi) to the north (Gilbert and Lee 1980; Page and Burr 1991). The petition further hypothesizes that the population in the Monongahela River Basin appears to be a glacial relic and may have been separated from the larger range of the species as much as 15,000 years ago (Hendricks et al. 1983). On the basis of a review of the information centered within the petition, we find that the petition presents substantial evidence to indicate that the species is markedly separated from other populations of the same taxon by physical factors. Therefore, we conclude that the longnose sucker population in the Monongahela River Basin meets the “discreteness” criterion. *Significance:* If a population segment is considered discrete under one or more of the conditions listed in the Service's DPS policy, its biological and ecological significance will then be considered in light of Congressional guidance that the authority to list DPS's be used “sparingly” while encouraging the conservation of genetic diversity. In carrying out this evaluation, the Service considers available scientific evidence of the potential DPS's importance to the taxon to which it belongs. This consideration may include, but is not limited to:
(1)Persistence of the DPS in an ecological setting unusual or unique for the taxon;
(2)evidence that loss of the DPS would result in a significant gap in the range of a taxon;
(3)evidence that the DPS represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or
(4)evidence that the DPS differs markedly from other populations of the species in its genetic characteristics. Each of these factors is discussed below, based on the information presented in the petition. *Persistence of the population segment in an ecological setting that is unique for the taxon.* Longnose suckers in the Monongahela River Basin appear to use habitat that is similar to stream habitats used by the species throughout its range. Although situated geographically to the south, the ecological setting is consistent with habitats described elsewhere in the species' range (i.e., cool, clear streams with gravel and cobble substrates). Therefore, on the basis of information provided in the petition, it is our determination that the Monongahela River population does not appear to exist in either an unusual or unique setting for the species. *Loss of the population segment would result in a significant gap in the range of taxon.* Both the historic, and current, range of longnose suckers in the Monongahela River Basin represents a very small percentage (less than one percent) of the species' overall global range. While the loss of this population would eliminate the species from the Monongahela River drainage, the species would continue to exist in over 99 percent of its range. As a result, we do not believe that a significant gap in the species' range would result. Furthermore, neither the petition nor information in our files indicates that loss of this population would result in a significant gap at the edge of the species range. *The population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range.* The Monongahela River population of the longnose sucker does not represent the only surviving natural occurrence of this species. According to the petition, the longnose sucker survives naturally throughout much of northern North America. Therefore, we have determined that this criterion is not relevant to this evaluation. *The discrete population segment differs markedly from other populations of the species in its genetic characteristics.* The petitioners speculate that longnose suckers from the Monongahela River Basin may be genetically distinct from longnose sucker populations to the north and west, and suggest that this population may be “stunted.” The petitioners suggest that because the Salish sucker ( *Catostomus catostomus* ), appears to be genetically distinct from longnose sucker populations elsewhere in the Frazier River and Puget Sound, Canada, that genetic differences may also exist between the Monongahela River Basin population of the longnose sucker and longnose suckers elsewhere. However, no data regarding quantitative or morphological analysis or literature citations were presented to support the genetic distinctiveness of the Monongahela River population of the longnose sucker, and the petition recommends that such studies be initiated. Therefore, on the basis of a review of the information provided in the petition, we have determined that there is insufficient evidence to suggest that the Monongahela River population of the longnose sucker differs markedly from other populations of the longnose sucker. Based on an evaluation of each of the criteria identified in the Service's DPS policy under significance relative to the information provided in the petition, we have determined that the Monongahela River Basin population of the longnose sucker does not meet the “significance” criterion under the Service's DPS policy. Because the Monongahela River Basin population of the longnose sucker fails to meet one of the first two criteria for a distinct vertebrate population segment per our policy (i.e., the significance criterion), we have determined that it is not a listable entity under the Act. We note that the petition also fails to present substantial information that the range of the longnose sucker within the Monongahela River Basin may be a significant portion of the range of the species. Therefore, we are not proceeding with an evaluation of its conservation status relative to the Act's standards for listing as endangered or threatened. The petition presented information for the five listing factors in section 4 of the Act in an effort to identify threats that may be leading to the decline of the Monongahela River population of the longnose sucker. These factors are pertinent only in cases where the organism being proposed for listing is a listable entity as defined by section 3(15) of the Act. Because the Monongahela River basin population does not meet the significance criterion for a DPS, and therefore not a listable entity, the five threat factors are not analyzed for that population here. Finding We have reviewed the information presented in the petition, and evaluated that information in relation to information readily available in our files. Based on this review, we find the petition does not present substantial information indicating that listing the Monongahela River population of *C. catostomus* may be warranted. This finding is based on the lack of evidence to indicate that the Monongahela River population of *C. catostomus* meets the criteria for being classified as a DPS. Although it is geographically and reproductively isolated, scientific evidence was not provided to document this population's biological or ecological significance under the Service's DPS policy. Therefore, we have concluded that the Monongahela River population of the longnose sucker is not a listable entity under section 3(15) of the Act. We will not commence a status review in response to this petition. We encourage interested parties to monitor the Monongahela River population's status and trends, and potential threats, and to implement actions that will contribute to this species' conservation. We also encourage interested parties to continue to gather data that will assist with these conservation efforts. New information regarding this population's potential consideration as a DPS should be submitted to the Field Supervisor, Pennsylvania Field Office (see ADDRESSES ). References Cited A complete list of all references cited herein is available, upon request, from the Pennsylvania Field Office, U.S. Fish and Wildlife Service (see ADDRESSES ). Author The primary author of this notice is Robert M. Anderson, Pennsylvania Field Office (see ADDRESSES ). Authority The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: February 23, 2007. Kenneth Stansell, Acting Director, Fish and Wildlife Service. [FR Doc. E7-4081 Filed 3-7-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 070302052-7052-01; I.D. 021307B] RIN 0648-AV09 Atlantic Highly Migratory Species; Atlantic Commercial Shark Management Measures AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: This proposed rule would establish the 2007 second and third trimester season quotas for large coastal sharks (LCS), small coastal sharks (SCS), and pelagic sharks based on over- or underharvests from the 2006 second and third trimester seasons. In addition, this rule proposes the opening and closing dates for the LCS fishery based on adjustments to the trimester quotas. The intended effect of these proposed actions is to provide advance notice of quotas and season dates for the Atlantic commercial shark fishery. DATES: Written comments will be accepted until March 28, 2007. Public hearings will be held from 6-8 p.m. on March 22 and March 28, 2007. ADDRESSES: Written comments on the proposed rule may be submitted to LeAnn Southward Hogan, Highly Migratory Species Management Division via: • E-mail: SF1.021307B@noaa.gov. • Mail: 1315 East-West Highway, Silver Spring, MD 20910. Please mark on the outside of the envelope “Comments on Proposed Rule for 2007 2nd & 3rd Trimester Season Lengths and Quotas.” • Fax: 301-713-1917. • Federal e-Rulemaking portal: *http://www.regulations.gov* . Include in the subject line the following identifier: I.D. 021307B. The hearing locations are: 1. March 22, 2007 from 6-8 p.m. Orlando Public Library, 101 E. Central Blvd., Orlando, FL 32801. 2. March 28, 2007 from 6-8 p.m. Town Hall, 407 Budleigh Street, Manteo, NC 27954. Copies of the draft Environmental Assessment
(EA)and other relevant document are available from the HMS website ( *http://www.nmfs.noaa.gov/sfa/hms/* ), or by contacting LeAnn Southward Hogan (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: LeAnn Southward Hogan or Karyl Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917. SUPPLEMENTARY INFORMATION: Background The Atlantic shark fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS recently finalized a Consolidated Highly Migratory Species
(HMS)Fishery Management Plan
(FMP)that consolidated and replaced previous FMPs for Atlantic Billfish and Atlantic Tunas, Swordfish, and Sharks. The HMS FMP is implemented by regulations at 50 CFR part 635. Currently, the Atlantic shark annual quotas, with the exception of pelagic sharks, are split among three regions based on historic landings (1999-2003). Consistent with 50 CFR 635.27(b)(1)(iii) and (iv), the annual LCS quota (1,017 mt dw) is split among the three regions as follows: 52 percent to the Gulf of Mexico, 41 percent to the South Atlantic, and 7 percent to the North Atlantic. The annual SCS quota (454 mt dw) is split among the three regions as follows: 10 percent to the Gulf of Mexico, 87 percent to the South Atlantic, and 3 percent to the North Atlantic. The regional quotas for LCS and SCS are divided equally between the trimester seasons in the South Atlantic and the Gulf of Mexico, and according to historical landings in the North Atlantic. Consistent with 50 CFR 635.27(b)(1)(vi), any over- or underharvest in a given region from the 2006 second and third trimester seasons will be carried over to the 2007 second and third trimester seasons in that region. Second and Third Trimester 2006 Landings Shark landings data for the second and third trimesters of 2006 are provided in Table 1. As a result of the over- and underharvests that occurred in the second and third trimester seasons of 2006, NMFS analyzed alternatives to adjust the 2007 second and third trimester seasons and quotas for the LCS and SCS fishery. Table 1- Landings in metric tons dressed weight (mt dw) for the 2nd and 3rd trimester seasons of 2006. Landings estimates are based on dealer reports received as of January 16, 2007. Second Trimester Season 2006 Species Group (Annual Quota) Region (Allocation) Quota (mt dw) Estimated Landings Percent Quota Taken Large Coastal Sharks (1,017) Gulf of Mexico (52 %) 201.1 343.9 171% South Atlantic (41 %) 151.7 207.4 136.7% North Atlantic (7 %) 66.3 59.9 90.3% Small Coastal Sharks
(454)Gulf of Mexico (10 %) 38.9 80.1 205.9% South Atlantic (87 %) 333.5 74.8 22.4% North Atlantic (3 %) 35.9 0 0 Blue Sharks
(273)No regional quotas 91 0.2 0.2% Porbeagle sharks
(92)30.7 0.3 1.0% Pelagic Sharks other than those above(488) 162.7 24.5 15.1% Third Trimester Season 2006 Species Group (Annual Quota) Region (Allocation) Quota (mt dw) Estimated Landings Percent Quota Taken Large Coastal Sharks (1,017) Gulf of Mexico (52 %) 225.6 351.8 155.9% South Atlantic (41 %) 50.3 108.7 216.1% North Atlantic (7 %) 3.3 5.8 175.8% Small Coastal Sharks
(454)Gulf of Mexico (10 %) 30.8 23 74.7% South Atlantic (87 %) 263.7 40.3 15.3% North Atlantic (3 %) 28.2 0 0% Blue Sharks
(273)No regional quotas 91 0 0.0% Porbeagle sharks(92) 30.7 0.8 2.6% Pelagic Sharks other than those above(488) 162.7 21.4 13.2% Quota Adjustments in the LCS and SCS Fishery The Agency conducted an Environmental Assessment
(EA)to analyze three LCS and four SCS alternatives for adjusting regional trimester quotas and other management measures based on the over- and underharvests that occurred in the LCS and SCS fisheries in the South Atlantic and Gulf of Mexico regions during the 2006 second and third trimester seasons. These measures are necessary to ensure that over- and underharvests from 2006 are accounted for and any impacts are analyzed. The base quotas established in Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks and maintained in the Consolidated HMS FMP would not be affected by this rulemaking. Rather, the base quotas would be changed via an amendment to the Consolidated HMS FMP. The Agency is preparing, in a separate action, an amendment to the 2006 Consolidated HMS FMP to implement management measures particularly for sandbar, dusky, and porbeagle sharks that address the results of recent stock assessments, including the need for rebuilding plans and other modifications to the management program. Therefore, the Agency is not proposing any modifications to fishing seasons or LCS quotas beyond the second and third trimesters of 2007, at this time. LCS Quota Adjustments The current regulations state that NMFS will adjust the next year's fishing season
(2007)and quotas for LCS to reflect actual landings during the previous fishing season
(2006)in any particular region. Due to the extensive overharvest of LCS in the 2006 second and third trimester seasons in the South Atlantic and Gulf of Mexico regions, limited quota would be available resulting in a short season in the South Atlantic region and no season in the Gulf of Mexico region for the 2007 second trimester. If NMFS were to not change the current regulations, then in the 2007 third trimester, both regions would experience short seasons. Moreover, under the current regulatory scheme, NMFS would open the mid-Atlantic shark closed area from July 6 - 20, 2007. As described in the rulemaking for the 2007 first trimester (71 FR 75122; December 14, 2006), re-opening the mid-Atlantic shark closed area in the month of July would likely have slightly negative ecological impacts because potential interactions with protected resources and other bycatch would be increased due to the displacement of fishing effort to an area that had been previously closed. Also, under the current regulatory scheme, NMFS would open the North Atlantic region for the month of July in the 2007 second trimester and close this region during the 2007 third trimester season due to overharvest during the 2006 third trimester season. Under this proposed rule, NMFS would combine the second trimester season quota with the third trimester season quota in the South Atlantic and Gulf of Mexico regions. NMFS would open the South Atlantic region for six weeks beginning August 1, 2007. This would close the entire South Atlantic region for the month of July and maintain any ecological benefits of the mid-Atlantic shark closure. NMFS is proposing to delay the start of the merged seasons until August 1, 2007, to allow for a longer season than was previously allowed, based on slower catch rates in August versus July. NMFS believes that an August start date would still provide opportunities for all fishermen in the South Atlantic to fish for LCS. Under this proposed rule, NMFS would open the Gulf of Mexico region for three weeks beginning September 1, 2007. This accommodates comments received by NMFS stating the desire for the Gulf of Mexico region to be open at a different time than the South Atlantic region. The proposed rule would provide for longer seasons than the current regulations thereby increasing fishing opportunities consistent with available quota. Under this proposed rule, NMFS would keep in place the North Atlantic regional quotas and opening dates. Under alternatives 2 and 3, the LCS season would be open at different times in different regions, which would prevent market gluts. SCS Quota Adjustments Under current regulations, NMFS would subtract the overharvest accrued (41.2 mt dw) in the Gulf of Mexico region during the 2006 second trimester season from the baseline quota (15.1 mt dw) for this region during the 2007 second trimester. Because the overharvest was greater than the baseline quota, NMFS would close the SCS fishery in the Gulf of Mexico during the 2007 second trimester. Under this proposed rule, NMFS would open the North Atlantic and South Atlantic regions on May 1, 2007, and would keep these regions open as long as quota was available in each region. Under existing regulations, NMFS would close the LCS and SCS commercial fishery in the Gulf of Mexico for the entire second trimester of 2007. Under 635.27(b)(1)(vi)(A)( *1* ), NMFS may transfer up to 10 percent of the underharvested quota from the South Atlantic region to the Gulf of Mexico region. However, this would result in a Gulf of Mexico quota of -0.23 mt dw and was not further analyzed because it does not address the entire overharvest that occurred in the Gulf of Mexico region and would result in the same impacts as the existing regulations. Under this proposed rule, NMFS would change the SCS regional quota percentages in the South Atlantic and Gulf of Mexico regions due to recent overharvests in the Gulf of Mexico region and continued underharvest of the available quota in the South Atlantic region. Currently, the regional quota percentages are 87 percent in the South Atlantic region and 10 percent in the Gulf of Mexico region, which gives each of the regions 395 mt dw, and 45.4 mt dw, of the base quota, respectively. The change in regional quota percentages would allocate the SCS base quota of 454 mt dw based on recent landings in both the South Atlantic and Gulf of Mexico regions and split the available quota between the two regions. Therefore, under this proposed rule, the 2007 regional SCS quotas would be 3 percent in the North Atlantic (13.6 mt dw, 29,983 lb dw), 49 percent (222.5 mt dw, 490,524 lb dw) in the South Atlantic, and 48 percent (217.9 mt dw, 480,382 lb dw) in the Gulf of Mexico. The rule also includes a quota transfer, which would cover the 41.2 mt dw overharvest of SCS that occurred in the Gulf of Mexico region during 2006. Redistributing the quota among regions would more equally allocate the total SCS quota, and is expected to have little impact on SCS mortality in each respective region or status of SCS stocks in general. As the total SCS quota has to date never been fully harvested, the impacts of a slight increase in fishing effort would not significantly affect these stocks, and should prevent future overharvest in the Gulf of Mexico region while not leading to an overharvest in the South Atlantic region. Annual Landings Quotas Pursuant to Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks, and the Final Consolidated HMS FMP, the 2007 annual base landings quotas are 1,017 mt dw (2,242,078 lb dw) for LCS and 454 mt dw (1,000,888.4 lb dw) for SCS. The 2007 quota levels for pelagic, blue, and porbeagle sharks are 488 mt dw (1,075,844.8 lb dw), 273 mt dw (601,855.8 lb dw), and 92 mt dw (202,823.2 lb dw), respectively. This proposed rule does not propose any changes to these overall base landings quotas. Table 2 describes the proposed adjusted quotas for LCS, and Table 3 describes the proposed adjusted quotas for SCS and pelagic sharks for the various regions (if applicable) for the second and third trimester seasons of 2007 adjusted for over- and underharvests that occurred during the second and third trimester seasons of 2006 (Table 1). Existing regulations do not allow underharvests of pelagic sharks to be carried forward to the next fishing management period. As of January 16, 2007, approximately 47.2 mt dw had been reported landed in the 2006 second and third trimester fishing seasons in total for pelagic, blue, and porbeagle sharks combined. Thus, the pelagic shark quota does not need to be reduced consistent with the current regulations 50 CFR 635.27(b)(1)(vi)(B). The 2007 second and third trimester seasons quotas for pelagic, blue, and porbeagle sharks are proposed to be 162.7 mt dw (358,688 lb dw), 91 mt dw (200,619 lb dw), and 30.7 mt dw (67,681 lb dw), respectively. Proposed Regional Quotas for LCS Consistent with 50 CFR 635.27(b)(1)(iii), the annual LCS quota (1,017 mt dw) is split among the regions as follows: 52 percent to the Gulf of Mexico, 41 percent to the South Atlantic, and 7 percent to the North Atlantic. Consistent with 50 CFR 635.27(b)(1)(vi)(A)( *3* ), the LCS quota for the Gulf of Mexico and South Atlantic regions is further split equally (33.3 percent/season) between the three trimester fishing seasons, and the quota for the North Atlantic is further split according to historical landings of 4, 88, and 8 percent for the first, second, and third trimester seasons, respectively. Under the proposed rule, the South Atlantic LCS regional quota for the 2007 second trimester (83.2 mt dw) would be combined with the 2007 third trimester quota (80.5 mt dw) for a total quota of 163.7 mt dw (360,893 lb dw). Under this rule, the Gulf of Mexico regional LCS quota for the 2007 second trimester (33.2 mt dw) would be merged with the 2007 third trimester quota (49.9 mt dw) for a total of 83.1 mt dw (183,202 lb dw). The North Atlantic LCS quota for the 2007 second trimester would be 69.0 mt dw (152,117 lb dw) and there would be a closure in the North Atlantic region during the 2007 third season (Table 2). Proposed Regional Quotas for SCS Consistent with 50 CFR 635.27(b)(1)(iv), the annual SCS quota (454 mt dw) is split among the regions as follows: 10 percent to the Gulf of Mexico region, 87 percent to the South Atlantic region and 3 percent to the North Atlantic region. Also consistent with 50 CFR 635.27 (b)(1)(vi)(A)( *3* ), the SCS quota for the Gulf of Mexico and South Atlantic regions is further split equally (33.3 percent/season) between the three trimester fishing seasons in each of the regions, and the quota for the North Atlantic is further split of 4, 88 and 8 percent for the first, second, and third trimester seasons, respectively. This rule proposes a change to the SCS regional quota percentages in the South Atlantic and Gulf of Mexico regions for 2007 and in the future. The new SCS quota percentage allocations would be 49 percent in the South Atlantic and 48 percent in the Gulf of Mexico. This change would give the South Atlantic an 2007 annual base quota of 222.5 mt dw (490,524 lb dw) (454 mt dw x .49%) and a trimester quota of 74.1 mt dw (163,361 lb dw) (222.5 mt dw x .333). The Gulf of Mexico would have an annual base quota of 217.9 mt dw (480,382 lb dw) (454 mt dw x .48%) and a trimester quota of 72.6 mt dw (160,054 lb dw) (217.9 mt dw x .333). Proposed Fishing Season Notification for the Second and Third Trimester Seasons 2007 The 2007 LCS second trimester season in the North Atlantic region is proposed to open on July 6, 2007, and would close on July 31, 2007, at ll:30 pm local time. The 2007 third trimester in the North Atlantic region would be closed (Table 2). The 2007 LCS fishery in the South Atlantic would have a merged second and third trimester season that is proposed to open on August 1, 2007, and would close September 15, 2007, at 11:30 pm local time (Table 2). NMFS is proposing to delay the start of the merged season until August 1, 2007, to allow for a longer season based on slower catch rates in August versus July. The 2007 LCS fishery in the Gulf of Mexico would also have a merged second and third trimester season that is proposed to open on September 1, 2007, and would close on September 22, 2007, at 11:30 p.m. local time (Table 2). NMFS is proposing to delay the start of the merged season until September 1, 2007, to accommodate comments received by NMFS stating the desire for the South Atlantic region to be open at a different time than the Gulf of Mexico region. The September 1, 2007, open date would also allow for a longer season based on slower catch rates in September versus July. The second and third trimester fishing seasons of 2007 for SCS, pelagic sharks, blue sharks, and porbeagle sharks in the northwestern Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, are proposed to open on May 1, 2007, and September 1, 2007, respectively (Table 3). When quotas are projected to be reached for the SCS, pelagic, blue, or porbeagle sharks, the Assistant Administrator
(AA)will file notification of closures at the Office of the **Federal Register** at least 14 days before the effective date, consistent with 50 CFR 635.28(b)(2). Table 2. LCS Proposed season lengths and quotas for the second and third trimester seasons of 2007 LCS Proposed merged 2 nd and 3 rd trimester opening dates Proposed merged 2 nd & 3 rd trimester Closing Dates Proposed merged 2 nd & 3 rd trimester Quotas South Atlantic August 1, 2007 September 15, 2007 163.70 mt dw 360,893 lb dw Gulf of Mexico September 1, 2007 September 22, 2007 83.1 mt dw 183,202 lb dw North Atlantic July 6, 2007 July 31, 2007 69.0 mt dw 152,117 lb d Closed 3 rd Season Closed 3 rd Season CLOSED Table 3. SCS and Pelagic sharks proposed season lengths and quotas for the second and third trimester seasons of 2007 2007 2 nd Trimester Opening Dates Closing Dates 2007 2 nd Tri. Adjusted Quota SCS South Atlantic (49%) May 1, 2007 To be determined as necessary 291.6 mt dw 642,861 lb dw SCS Gulf of Mexico (48%) May 1, 2007 To be determined as necessary 72.6 mt dw 160,054 lb dw SCS North Atlantic (3%) May 1, 2007 To be determined as necessary 36.2 mt dw 79,807 ld dw Blue Sharks May 1, 2007 To be determined as necessary 91.0 mt dw 200,619 lb dw Porbeagle May 1, 2007 To be determined as necessary 30.7 mt dw 67, 681 lb dw Pelagic Sharks May 1, 2007 To be determined as necessary 162.7 mt dw 358,688 lb dw 2007 3rd Trimester Opening Dates Closing Dates 2007 3 rd Tri. Adjusted Quota SCS South Atlantic (49%) September 1, 2007 To be determined as necessary 297.5 mt dw 655,869 lb dw SCS Gulf of Mexico (48%) September 1, 2007 To be determined as necessary 80.4 mt dw 177,250 lb dw SCS North Atlantic (3%) September 1, 2007 To be determined as necessary 29.4 mt dw 64,815 lb dw Blue Sharks September 1, 2007 To be determined as necessary 91.0 mt dw 200,619 lb dw Porbeagle September 1, 2007 To be determined as necessary 30.7 mt dw 67, 681 lb dw Pelagic Sharks September 1, 2007 To be determined as necessary 162.7 mt dw 358,688 lb dw Request for Comments Comments on this proposed rule may be submitted at public hearings, via email, mail, or fax by March 28, 2007. NMFS will hold two public hearings to receive comments from fishery participants and other members of the public regarding this proposed rule. These hearings will be physically accessible to people with disabilities. Request for sign language interpretation or other auxiliary aids should be directed to LeAnn Southward Hogan at
(301)713-2347 at least 5 days prior to the hearing date. The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each meeting, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; attendees will be called to give their comments in the order in which they register to speak; the attendees should not interrupt one another). The NMFS representative will attempt to structure the meeting so that all attending member of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and, if they do no, they will be asked to leave the meeting. For individuals unable to attend a hearing, NMFS also solicits written comments on this proposed rule (see DATES and ADDRESSES ). Classification NMFS has preliminarily determined that this action is consistent with section 304(b)(1) of the Magnuson-Stevens Fishery Conservation and Management Act, including the National Standards, and other applicable law. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. In compliance with Section 603 of the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis was prepared for this rule. The IRFA analyzes the anticipated economic impacts of the preferred actions and any significant alternatives to the proposed rule that could minimize economic impacts on small entities. A summary of the IRFA is below. The full IRFA and analysis of economic and ecological impacts, are available from NMFS (see ADDRESSES ). In compliance with section 603 (b)(1) of the Regulatory Flexibility Act, the purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act, to adjust the LCS and SCS regional and trimester quotas and propose season lengths for LCS, SCS, and pelagic sharks for the second and third trimesters of 2007 based on under- and overharvests that occurred during the second and third trimesters of 2006. This rule does not change the overall annual base quotas. In compliance with section 603 (b)(2) of the Regulatory Flexibility Act, the objective of the proposed rulemaking is, to ensure that the season lengths and quotas for the second and third trimester of 2007 for LCS, SCS, and pelagic sharks are in place by the end of the first trimester of 2007 consistent with the regulations established in the 2003 Amendment to the 1999 FMP for Atlantic Tunas, Swordfish and Sharks. Section 603 (b)(3) requires Agencies to provide an estimate of the number of small entities to which the rule would apply. This rule could directly affect commercial shark fishermen on the Atlantic Ocean in the United States. There are approximately 549 (235 directed and 314 incidental) shark permit holders. Additionally, approximately 253 commercial shark dealers could be indirectly affected by this proposed rule. All of these permit holders and dealers are considered small entities according to the Small Business Administration=s standard for defining a small entity. Other small entities involved in HMS fisheries such as processors, bait houses, and gear manufacturers might also be indirectly affected by the proposed regulations. This proposed rule does not contain any new reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). Similarly, this proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). One of the requirements of an IRFA, under Section 603 of the Regulatory Flexibility Act, is to describe any alternatives to the proposed rule that accomplish the stated objectives and that minimize any significant economic impacts (5 U.S.C. 603 (c)). Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four categories for alternatives that must be considered. These categories are:
(1)establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)use of performance rather than design standards; and
(4)exemptions from coverage for small entities. In order to meet the objectives of this proposed rule, consistent with Magunson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in additional reporting or compliance requirements (category two above). NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed seven different alternatives in this proposed rulemaking and provides justification for selection of the preferred alternative to achieve the desired objective. The alternatives include: maintain existing procedures for LCS quota management (alternative 1, No Action), merge the second trimester season quota with the third trimester season quota in the South Atlantic and open the combined season August 1, 2007 (alternative 2), merge the second trimester season quota with the third trimester season quota in the Gulf of Mexico region and open the combined season September 1, 2007 (alternative 3), maintain existing procedures for SCS quota management (alternative 4, No Action), transfer a portion of the South Atlantic's regional 2007 second trimester SCS underharvest to the Gulf of Mexico region (alternative 5), transfer a portion of the South Atlantic's regional 2007 second trimester SCS underharvest to the Gulf of Mexico region as well as give the Gulf of Mexico region additional SCS quota for the 2007 second trimester season (alternative 6), and reallocate the SCS regional quota percentages in the South Atlantic region from 87 percent to 49 percent and in the Gulf of Mexico region from 10 percent to 48 percent and transfer a portion of the South Atlantic's regional 2007 second trimester SCS underharvest to the Gulf of Mexico region (alternative 7). Merging the second and third trimester seasons for LCS for both the South Atlantic (alternative 2) and the Gulf of Mexico (alternative 3) regions and also reallocating the SCS regional quota percentages between the South Atlantic and Gulf of Mexico regions for the second and third trimesters while also transferring a portion of the South Atlantic's regional second trimester underharvest to the Gulf of Mexico (alternative 7) are the preferred alternatives. Alternatives Considered for LCS Alternative 1 is considered the no action alternative since it would maintain existing procedures for addressing regional trimester over and underharvests of LCS when establishing the regional quotas and seasons for the second and third trimesters of 2007 and it would also open the mid Atlantic shark closed area in July, subject to available quota for the second trimester in 2007. This alternative is not preferred in part because it would result in negative economic impacts for the South Atlantic region and Gulf of Mexico region, compared to the preferred alternative. The no action alternative does not create any new economic burdens on the shark commercial industry that was not included in previous rulemaking. Regardless, the unexpected magnitude of the 2006 second trimester overharvest would result in no commercial fishing for LCS in the entire Gulf of Mexico region during the second trimester of 2007 since the available adjusted quota would be taken in approximately two days. Furthermore, overharvest during the second trimester in 2006 in the South Atlantic region would result in a reduced second trimester quota of 83.2 mt dw and therefore the fishing season would be adjusted and shortened to last only from July 6 to July 20, 2007. If not for the overharvest in 2006, the second trimester quota allocation would have been 138.9 mt of LCS in the South Atlantic region. Instead, the adjusted quota under this alternative would be 83.2 mt dw, which is 55.7 mt dw less than it would have been under the base quota allocation. To estimate the value of changes in revenues from the 2007 available quota, the median ex vessel prices from 2003 to 2006 for each region reported in Table 6.6 of the draft EA were used to forecast 2007 shark prices since this multi year average smoothes out temporary market volatility. Using a median ex vessel price of $0.48 per pound dressed weight of LCS and $12.28 per pound for shark fin reported via HMS dealer reports from 2003 to 2006 for the South Atlantic region and adjusted for inflation, the value of the 55.7 mt dw reduction from the baseline quote allocation would have been approximately $55,996 for LCS flesh (95 percent of the quota weight) and $75,398 for shark fins (based on the 5 percent shark fin to carcass regulation). Therefore, the 2006 overharvest is estimated to have a direct revenue impact on South Atlantic regional commercial shark fishing activity of approximately $131,393. However, it should be noted that due to the overharvest, fishermen received more revenue in the 2006 second trimester than previously expected. Since the actual prices received for the 2006 second trimester are available, those prices were used to calculate the “extra” revenues generated from the overharvest in the second trimester of 2006. Using the median ex vessel prices for the second trimester of 2006 of $0.40 and $10.00 for LCS flesh and shark fins, respectively, for the South Atlantic region the estimated revenue for the second trimester in 2006 from the 55.7 mt dw in overharvest was $108,162. Due to this extra revenue in 2006, a shortened second trimester for 2007 would result in disrupted revenue flows and result in negative economic impacts. If not for the overharvest in the second trimester of 2006 in the Gulf of Mexico region, the second trimester quota available would have been 176.1 mt of LCS in the Gulf of Mexico region. However, due to the overharvest, the adjusted quota is 33.2 mt for LCS. Because of the small size of this quota, no fishing season is feasible due to safety at sea concerns and potential derby fishing conditions. Using a median ex vessel price of $0.44 for LCS and $17.05 for shark fin reported HMS dealer reports from 2003 to 2006 for the Gulf of Mexico region and adjusted for inflation, the value of the 176.1 mt dw baseline quota for the second trimester of 2007 is approximately $162,282 for LCS flesh (95 percent of the quota weight) and $330,969 for shark fins (based on the 5 percent shark fin to carcass regulation). Therefore, the 2006 overharvest is estimated to have a direct revenue impact on Gulf of Mexico regional commercial shark fishing activity of approximately $493,251. Using the median ex vessel prices for the second trimester of 2006 of $0.40 and $13.00 for LCS flesh and shark fins, respectively, for the Gulf of Mexico region, the estimated revenue for the second trimester in 2006 from the 142.9 mt dw (176.1 33.2 mt dw) in overharvest was $324,491. However, a closure during the second trimester of 2007 would result in disrupted revenue flows and result in negative economic impacts. The quota for the second trimester of 2007 is not impacted by overharvests in the North Atlantic region. However, in the 2007 third trimester, the North Atlantic region would be closed to fishing because of overharvest in the third trimester of 2006. The base quota allocation for the third trimester would have been 5.7 mt dw if not for the overharvest. Using an average between the median ex vessel price in the South Atlantic and the Gulf of Mexico regions from 2003 to 2006 adjusted for inflation, the approximate value of this quota allocation would have been $14,709. This minor economic impact is offset by the extra revenue received in 2006 as a result of the 2.5 mt dw overharvest in the third trimester worth $6,451. However, it should also be noted that the third season was closed in 2006. During the third trimester of 2006, there was also an overharvest in the South Atlantic region. This resulted in the base quota allocation being reduced from 138.9 mt dw to an adjusted quota of 80.5 mt dw for the third trimester. Using a similar calculation as above, the economic impact of the overharvest would be a reduced third quarter value of revenues of approximately $137,762. However, it should be noted that fishermen received revenue sooner under the 2006 third trimester overharvest than they normally would have received. Using the median ex vessel prices for the third trimester of 2006 of $0.45 and $8.00 for LCS flesh and shark fins, respectively for the South Atlantic region, the estimated revenue for the third trimester in 2006 from the 58.4 mt in overharvest was $100,425. During the third trimester of 2006, there was also an overharvest in the Gulf of Mexico region. This resulted in the base quota allocation being reduced from 176.1 mt dw to an adjusted quota of 49.9 mt dw for the third trimester. Using a similar calculation as above, the economic impact of the overharvest would be a reduced third quarter value of revenues of approximately $353,482. However, it should be noted thatdue to the overharvest, fishermen received more revenue in the 2006 third trimester than previously expected. Using the median ex vessel prices for the third trimester of 2006 of $0.40 and $17.00 for LCS flesh and shark fins, respectively for the Gulf of Mexico region, the estimated revenue for the third trimester in 2006 from the 126.2 mt in overharvest was $342,214. Despite this extra revenue in 2006, a shortened third trimester for 2007 would result in disrupted revenue flows and result in negative economic impacts. Overall, the economic impact of reduced 2007 LCS quota for the South Atlantic, Gulf of Mexico, and North Atlantic regions for the second and third trimesters of 2007 would result in a total economic impact of $1,130,597 in reduced revenues. However, this is partially offset by the extra revenues generated in the second and third trimesters of 2006 estimated to be worth $881,644. Some of the impacts from these reduced revenues might be mitigated somewhat for vessels that can fish in other regions or fisheries. However, these opportunities will likely be limited and result in additional costs associated with adjusting current fishing practices. Alternative 2, the preferred alternative, which would merge the second trimester season in the South Atlantic region with the third trimester season quota in the South Atlantic region, could minimize the economic costs associated with the South Atlantic regional overharvest. The 83.2 mt dw adjusted quota for the second trimester would be combined with the 80.5 mt dw adjusted quota for the third trimester in the South Atlantic to provide a combined 163.7 mt dw season starting on August 1, 2007, that is proposed to last until September 15, 2007. There does not appear to be any significant seasonality to LCS and shark fin ex vessel prices. Therefore, revenues under this alternative would likely be at least the same as having two separate seasons. The combined seasons would provide for a total of six weeks to fish the LCS quota in the South Atlantic region versus only five weeks (split into two seasons) under the no action alternative. This would afford more flexibility in addressing market conditions for LCS, and thus potentially allow for greater profits. However, there could be negative impacts on business planning as a result of the season starting in August versus the expected July start date. Fishing operations may face cash flow problems covering their fixed costs as they wait for the later starting combined season, unless they are able to generate cash flows in other fisheries in the interim. Starting the season in August essentially extends the Mid Atlantic closure to the whole region from July to August. This could have negative economic impacts, especially since catch rates have been historically higher in July than in August. The positive aspects of merging the two seasons include reduced operating costs since fishermen would only need to prepare the vessel once instead of twice and they are more likely to have a viable market for LCS given the season would be longer. Alternative 3 is similar to Alternative 2 in that it would merge the second trimester season with the third trimester season quota, but is instead for the Gulf of Mexico region. The merged season would combine the second trimester season quota of 33.2 mt dw with the third trimester season quota of 49.9 mt dw to create a three week long season starting September 1, 2007, that would have 83.1 mt dw of quota. This preferred alternative would have the benefit of extending the third season by one week versus under Alternative 1. Since Alternative 3 has the same start date as Alternative 1, there would not be any impact on that portion of the Gulf of Mexico region. Alternative 3 also allows the 33.2 mt dw quota of the second season to be fished. Under Alternative 1, the season for that 33.2 mt dw of quota would have been closed. Using a median ex vessel price of $0.44 for LCS and $17.05 for shark fin reported HMS dealer reports from 2003 to 2006 for the Gulf of Mexico region and adjusted for inflation, the value of harvesting this 33.2 mt dw of quota would be approximately $92,992 in revenue. In addition, by providing for a three week combined fishing season, this alternative would afford more flexibility in addressing market conditions for LCS. Alternatives Considered for SCS Alternative 4 is considered the no action alternative since it would maintain existing procedures for addressing regional trimester over and underharvests for SCS when establishing the regional quotas and seasons for the second and third trimesters of 2007. No change in economic impacts would be realized in the North Atlantic and South Atlantic regions since those regions would be open, with ample quota, throughout the entire second and third trimesters of 2007 under the status quo. This alternative is not preferred, as it would result in greater negative economic impacts for the Gulf of Mexico region, compared to the preferred alternative. The no action alternative would not create any new economic burdens on the SCS commercial industry that were not included in previous rulemaking. Regardless, the size of the 2006 second trimester overharvest in the Gulf of Mexico region would result in no commercial fishing for SCS in the entire Gulf of Mexico region during the second trimester of 2007. Even after a ten percent quota transfer from the South Atlantic second season underharvest, the 25.87 mt dw of transferred quota is not sufficient to address the 41.2 mt dw of overharvest in the Gulf of Mexico region during the second trimester season of 2006. If not for the overharvest in 2006, the 2007 second trimester quota allocation would have been 15.1 mt dw of SCS in the Gulf of Mexico region. Instead, the adjusted quota under Alternative 4 would be negative 26.1 mt dw resulting in a closed fishing season. Using a median ex vessel price of $0.44 per pound dress weight for SCS and $17.05 per pound for shark fin reported in HMS dealer reports from 2003 to 2006 for the Gulf of Mexico region and adjusted for inflation, the value of this harvest (15.1 mt dw) would have been approximately $13,915 for SCS flesh (95 percent of the quota weight) and $28,380 for shark fins (based on the 5 percent shark fin to carcass regulation). Therefore, the 2006 overharvest is estimated to have a direct revenue impact on Gulf of Mexico regional commercial shark fishing activity of approximately $42,295. However, it should be noted that due to the overharvest, fishermen received more revenue in the 2006 second trimester than previously expected. Alternative 5 would transfer a portion of the South Atlantic's regional 2007 second trimester SCS underharvest (41.2 mt dw) to the Gulf of Mexico region to cover the Gulf of Mexico's regional 2006 second trimester overharvest. The Gulf of Mexico would then have the equivalent of their base quota of 15.1 mt dw for the 2007 second trimester. This would eliminate the economic impact of a closure in the Gulf of Mexico region in 2007 unlike under the no action alternative. The South Atlantic region would still have an adjusted third trimester quota of 349 mt dw, which is much greater than the amount that region actually harvested in the second season of 2006. The only economic impacts would come from potential future impacts to the South Atlantic region as a result of the 41.2 mt dw transfer of their underhavest to the Gulf of Mexico region if in the future the South Atlantic harvests more SCS than is accommodated by their lowered final adjusted quota. Alternative 6 would transfer a portion of the South Atlantic's regional 2007 second trimester SCS underharvest (41.2 mt dw) to the Gulf of Mexico region to cover the Gulf of Mexico's regional 2006 second trimester SCS overharvest as well as give the Gulf of Mexico region additional SCS quota of 15.1 mt dw from the South Atlantic region for a total of 30.2 mt dw for the 2007 second trimester. This additional quota transfer would likely not provide enough quota to prevent an overharvest during the 2007 second trimester. However, this additional quota (15.1 mt dw) would provide the Gulf of Mexico region with an additional $42,294 in potential revenue from SCS. It would also further reduce the underharvest carry forward of SCS in the South Atlantic as a result of the larger transfer. There could be future economic impacts in the South Atlantic region if one day they need that quota. Alternative 7 would take a different approach. Under Alternative 7, NMFS would reallocate the SCS regional quota percentages in the South Atlantic region from 87 percent to 49 percent and in the Gulf of Mexico region from 10 percent to 48 percent for both the 2007 second and third trimester seasons and in the future. In addition, there would also be transfer of underharvest in the South Atlantic regional 2007 second trimester quota to cover the Gulf of Mexico's regional second trimester overharvest. This alternative is the preferred alternative. There would be no change in the total base quota available for all regions in the second and third trimester season under this alternative versus alternative 4 (No Action). In addition, the adjusted 2007 second and third trimester regional quota would stay the same for the North Atlantic region. The key change would involve the quota amounts for South Atlantic and Gulf of Mexico regions. The 2007 second trimester quota in the South Atlantic region would decrease from 390.2 mt dw (Alternative 4) to 291.6 mt dw of SCS and the 2007 third trimester quota would decrease from 354.9 mt dw (Alternative 4) to 297.5 mt dw. Using the 2003 to 2006 median ex vessel prices of $0.67 lbs dw for flesh and the 2003 to 2006 median ex vessel prices for shark fin of $12.28 for SCS in the South Atlantic region, there would be a decrease of $200,425 in potential revenues for the second trimester season and $158,245 decrease in potential revenues in the third trimester season. However, it should be noted that the South Atlantic region has not harvested SCS in amounts approaching even these lowered trimester quota levels in the past few years. The 2007 second trimester quota in the Gulf of Mexico region would go from -26.1 mt dw (which would close this region) under the alternative 4 (No Action) scenario in the second trimester season to 72.6 mt dw of SCS under this alternative. In addition, the 2007 third trimester quota would increase from 22.9 mt dw to 80.4 mt dw. Using the 2003 to 2006 median ex vessel prices of $0.44 lbs dw for flesh and the 2003 to 2006 median ex vessel prices for shark fins of $17.05 for SCS in the Gulf of Mexico region, there would be an increase of $203,350 in potential revenues for the second trimester season and $161,506 increase in potential revenues in the third trimester season. This reallocation of quota would allow the SCS fishery to remain open in the Gulf of Mexico region and would prevent future overharvest of quota in that region while not leading to an overharvest in the South Atlantic region. Overall, Alternative 7 would increase revenues for SCS by transferring quota from a region of underharvest to a region that is currently overharvesting their SCS quota. The reallocation of regional quota percentages would provide greater regional equity in future base quota allocations. This would help mitigate overharvesting of the quota in the Gulf of Mexico region. However, there could be future impacts to the South Atlantic region as a result of the reallocation of the SCS regional quota percentage to the Gulf of Mexico region if in the future the South Atlantic harvests more than this proposed lower regional quota allocation percentage. List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties. Dated: March 5, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority: 16 U.S.C. 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* 2. In § 635.27, paragraphs (b)(1)(i), (b)(1)(iv), (b)(1)(vi)(A) introductory text, are revised to read as follows: § 635.27 Quotas.
(b)* * *
(1)* * *
(i)*Fishing seasons* . The commercial quotas for large coastal sharks, small coastal sharks, and pelagic sharks will be split among three fishing seasons: January 1 through April 30, May 1 through August 31, and September 1 through December 31. NMFS may consider merging any of the fishing seasons pursuant to paragraph (b)(1)(vi) of this section.
(iv)*Small coastal sharks* . The annual commercial quota for small coastal sharks is 454 mt dw, unless adjusted pursuant to paragraph (b)(1)(vi) of this section. This annual quota is split among the regions as follows: 48 percent to the Gulf of Mexico, 49 percent to the South Atlantic, and 3 percent to the North Atlantic.
(vi)*Annual adjustments* .
(A)NMFS will adjust the next year's fishing season quotas for large coastal, small coastal, and pelagic sharks to reflect actual landings during any fishing season in any particular region. For example, a commercial quota underharvest or overharvest in the fishing season in one region that begins January 1 will result in an equivalent increase or decrease in the following year's quota for that region for the fishing season that begins January 1. NMFS may consider merging any of the fishing seasons and relevant quotas in any region when there is limited available quota in one or more seasons. [FR Doc. 07-1085 Filed 3-5-07; 2:13 pm]
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51 references not yet in our index
- 14 CFR 39
- 18 CFR 358
- 468 F.3d 831
- 30 CFR 920
- 32 CFR 903
- Pub. L. 104-4
- Pub. L. 96-354
- Pub. L. 95-511
- 33 CFR 110
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- 33 CFR 165
- Pub. L. 107-295
- 413 F.3d 3
- 40 CFR 2
- 40 CFR 51
- 893 F.2d 901
- 40 CFR 9
- Pub. L. 104-113
- 40 CFR 52
- 42 USC 7401-7671q
- 43 CFR 4
- 43 CFR 4.414
- 43 CFR 4.415
- 455 F.2d 432
- 563 F.2d 413
- 43 CFR 4.337
- 43 CFR 4.433
- 43 CFR 4.474(c)
- 43 CFR 4.1276(a)
- 40 CFR 1500
- 40 CFR 1508.4
- 40 CFR 1507.3
- 30 CFR 723
- 44 CFR 67
- 44 CFR 67.4(a)
- 44 CFR 60.3
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F. App'x468 F.3d 831
F. App'x413 F.3d 3
F. App'x893 F.2d 901
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