Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2007-03-22 · PROPOSED RULES · Unknown

Unknown. Interim rule and request for comments

48,462 words·~220 min read·/register/2007/03/22/07-1399

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2007-03-22.xml --- 72 55 Thursday, March 22, 2007 Contents AID Agency for International Development NOTICES Agency information collection activities; proposals, submissions, and approvals, 13468 07-1399 Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Forest Service See Natural Resources Conservation Service See Rural Business-Cooperative Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 13468 E7-5231 Animal Animal and Plant Health Inspection Service RULES Interstate transportation of animals and animal products (quarantine):
Brucellosis in cattle— State and area classifications, 13428-13429 E7-5230 Plant-related quarantine, domestic: Citrus canker, 13423-13428 E7-5229 Antitrust Antitrust Division NOTICES National cooperative research notifications: Institute of Electrical and Electronics Engineers, 13516 07-1397 Arctic Arctic Research Commission NOTICES Meetings, 13473-13474 07-1400 Army Army Department NOTICES Environmental statements; availability, etc.: Base closures and realignments— Fort Meade, MD, 13482-13483 07-1394 Fort Sam Houston, TX, 13482 07-1393 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 13495-13496 E7-5218 Meetings:
National Institute for Occupational Safety and Health— Long-Term Field Evaluation Program Concept, 13496-13497 E7-5216 Radiation and Worker Health Advisory Board, 13497 E7-5225 Reports and guidance documents; availability, etc.: National Institute for Occupational Safety and Health; new record schedule; implementation, 13497-13498 E7-5219 Coast Guard Coast Guard PROPOSED RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Kenosha Harbor, WI, 13450-13452 E7-5179 Commerce Commerce Department See Economic Development Administration See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See Technology Administration Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 13481 E7-5228 Defense Defense Department See Army Department RULES Federal Acquisition Regulation (FAR):
Commercial items; contract terms and conditions required to implement statute or executive orders, 13588-13589 07-1360 Contracts with religious entities, 13586-13588 07-1357 Introduction, 13584-13585 07-1359 Purchase orders; termination or cancellation, 13586 07-1356 Small Entity Compliance Guide, 13589-13590 07-1355 Wage Determinations OnLine; implementation, 13585 07-1358 Economic Economic Development Administration NOTICES Grants and cooperative agreements; availability, etc.:
Public Works and Economic Development Investments Program et al., 13474-13478 E7-5223 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.: Special education and rehabilitative services— Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities Program, 13483-13488 E7-5267 Employee Employee Benefits Security Administration NOTICES Employee benefit plans; individual exemptions: DeRose Dental Offices, Inc., S.C., 13517-13519 E7-5209 Fidelity Mutual Life Insurance Co., 13519-13526 E7-5208 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.:
Cerf Brothers Bag Co., Inc., 13526-13527 E7-5239 Flint Group North America Corp. et al., 13527-13529 E7-5236 LEGO Systems, Inc., 13529 E7-5238 Weyerhaeuser Co., 13529-13530 E7-5237 Employment Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 13530-13531 E7-5234 E7-5235 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Air programs: Ambient air quality standards, national— Exceptional events; data treatment, 13560-13581 E7-5156 Air programs;
State authority delegations: Mississippi, 13444-13446 E7-5261 Solid wastes: State underground storage tank program approvals— Colorado, 13446-13447 E7-5263 PROPOSED RULES Air pollution control; new motor vehicles and engines: Heavy duty engines; onboard diagnostic systems and requirements, 13458-13459 E7-5266 Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas: Michigan, Ohio, and West Virginia, 13452-13458 E7-5352 NOTICES Meetings:
Science Advisory Board, 13492 E7-5264 Executive Executive Office of the President See Presidential Documents See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness standards: Special conditions— Aviation Technology Group, Inc., Javelin Model No. 100 airplane, 13436-13438 E7-5183 Class E airspace; correction, E7-5180 13438-13440 E7-5185 E7-5186 Offshore airspace areas; correction, 13440 E7-5181 PROPOSED RULES Airworthiness directives:
Viking Air Ltd., 13448-13450 E7-5215 NOTICES Grants and cooperative agreements; availability, etc.: Airport Improvement Program; correction, 13550-13551 07-1391 Meetings: Commercial Space Transportation Advisory Committee, 13551 E7-5184 Federal Energy Federal Energy Regulatory Commission RULES Public utilities; annual charges revision, 13442-13444 E7-5052 NOTICES Electric rate and corporate regulation combined filings, 13490-13491 E7-5204 Environmental statements; availability, etc.:
Rockies Express Pipeline, LLC, et al., 13491-13492 E7-5200 *Applications, hearings, determinations, etc.:* Bay Gas Storage Co., Ltd., 13488-13489 E7-5203 Enbridge Pipelines (Louisiana Intrastate) LLC, 13489 E7-5202 Southern Natural Gas Co., 13489-13490 E7-5201 Federal Highway Federal Highway Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 13551-13552 E7-5187 Environmental statements; notice of intent: Prince George's and Charles Counties, MD, 13552 07-1398 Grants and cooperative agreements; availability, etc.:
Federal highway discretionary programs, 13552-13556 E7-5161 Federal Reserve Federal Reserve System NOTICES Agency information collection activities; proposals, submissions, and approvals, 13492-13495 E7-5192 Fish Fish and Wildlife Service PROPOSED RULES Migratory bird permits: Resident Canada goose populations; management, 13459-13464 E7-5199 NOTICES Comprehensive conservation plans; availability, etc.: Arrowwood National Wildlife Refuge, ND, 13508-13509 E7-5211 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 13498-13500 E7-5195 E7-5196 Committees; establishment, renewal, termination, etc.:
Public advisory committees— Voting members, 13500-13501 E7-5193 Meetings: Pulmonary-Allergy Drugs Advisory Committee, 13501-13502 E7-5194 Foreign Foreign Assets Control Office NOTICES Sanctions, blocked persons, specially-designated nationals, terrorists, narcotics traffickers, and foreign terrorist organizations: Belarus; additional designations, 13556 E7-5265 Forest Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 13468-13469 E7-5259 Committees; establishment, renewal, termination, etc.:
Roadless Area Conservation National Advisory Committee, 13469-13470 E7-5258 GSA General Services Administration RULES Federal Acquisition Regulation (FAR): Commercial items; contract terms and conditions required to implement statute or executive orders, 13588-13589 07-1360 Contracts with religious entities, 13586-13588 07-1357 Introduction, 13584-13585 07-1359 Purchase orders; termination or cancellation, 13586 07-1356 Small Entity Compliance Guide, 13589-13590 07-1355 Wage Determinations OnLine; implementation, 13585 07-1358 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard See U.S.
Citizenship and Immigration Services Indian Indian Affairs Bureau NOTICES Indian entities recognized as eligible to receive services from BIA; list, 13648-13652 E7-5220 Industry Industry and Security Bureau RULES Export administration regulations: Commerce Control List— Calculating computer performance; new formula implementation; adjusted peak performance in weighted TeraFLOPS; Bulgaria; XP and MT controls; correction, 13440-13442 E7-5271 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau NOTICES Meetings:
Invasive Species Advisory Committee, 13508 E7-5257 International International Trade Administration NOTICES Antidumping: Clad steel plate from— Japan, 13478-13479 E7-5269 Countervailing duties: Welded carbon steel standard pipe from— Turkey, 13479 E7-5270 International International Trade Commission NOTICES Import investigations: Folding gift boxes from— China, 13512-13513 E7-5176 Lighters, 13513-13514 E7-5175 Meetings; Sunshine Act, 13514-13515 07-1444 Justice Justice Department See Antitrust Division NOTICES Pollution control; consent judgments:
B&D Electric Co., Inc., et al., 07-1387 07-1388 13515-13516 07-1389 Joseph Vazzana, Sr. Estate, et al., 13516 07-1390 Labor Labor Department See Employee Benefits Security Administration See Employment and Training Administration See Employment Standards Administration See Mine Safety and Health Administration Land Land Management Bureau NOTICES Alaska Native claims selection: Choggiung Ltd., 13509-13510 E7-5224 Coal leases, exploration licenses, etc.: Utah, 13510 E7-5207 Oil and gas leases:
Colorado, E7-5241 13510-13512 E7-5245 E7-5246 Resource management plans, etc.: Carrizo Plain National Monument, CA, 13512 E7-5210 E7-5227 Mine Mine Safety and Health Administration RULES Mine Improvement and New Emergency Response Act; implementation: Civil penalties assessment; criteria and procedures, 13592-13646 07-1402 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation (FAR): Commercial items; contract terms and conditions required to implement statute or executive orders, 13588-13589 07-1360 Contracts with religious entities, 13586-13588 07-1357 Introduction, 13584-13585 07-1359 Purchase orders; termination or cancellation, 13586 07-1356 Small Entity Compliance Guide, 13589-13590 07-1355 Wage Determinations OnLine; implementation, 13585 07-1358 NIH National Institutes of Health NOTICES Meetings:
National Cancer Institute, 13502 07-1408 National Human Genome Research Institute, 13503 07-1410 07-1411 National Institute of Allergy and Infectious Diseases, 13504 07-1412 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 13503 07-1406 National Institute of Environmental Health Sciences, 13503-13504 07-1407 National Institute of General Medical Sciences, 13504 07-1409 Scientific Review Center, 13504-13505 07-1405 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Marine mammals:
Southern resident killer whales; recovery plan, 13464-13467 E7-5262 NOTICES Endangered and threatened species: Incidental take permits— North Carolina Marine Fisheries Division; sea turtles; commercial shrimp trawling without using turtle excluder devices from Browns Inlet to Rich Inlet, 13479-13480 E7-5272 NRCS Natural Resources Conservation Service NOTICES Environmental statements; notice of intent: Manoa Watershed, HI, 13470 E7-5255 Nuclear Nuclear Regulatory Commission NOTICES Reports and guidance documents; availability, etc.:
Preclosure safety analysis; information and reliability estimation level, 13534-13537 07-1404 *Applications, hearings, determinations, etc.:* Connecticut Yankee Atomic Power Co., 13531-13533 E7-5248 Exelon Generation Co., LLC, 13533-13534 E7-5247 Florida Power Corp.; correction, 13534 E7-5249 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Presidential Presidential Documents PROCLAMATIONS Caribbean Basin Economic Recovery Act and the African Growth and Opportunity Act; modifications (Proc. 8114), 13653-13669 07-1442 Railroad Railroad Retirement Board NOTICES Agency information collection activities; proposals, submissions, and approvals, 13540 E7-5240 Rural Rural Business-Cooperative Service NOTICES Grants and cooperative agreements; availability, etc.:
Renewable energy systems and energy efficiency improvements grants and guaranteed loans, 13470-13473 E7-5198 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 13540-13543 E7-5205 E7-5206 Boston Stock Exchange, Inc., 13544-13545 E7-5190 Chicago Stock Exchange, Inc., 13546-13547 E7-5191 Philadelphia Stock Exchange, Inc., 13547-13549 E7-5189 SBA Small Business Administration NOTICES Meetings: District and regional advisory councils— Buffalo, NY, 13549 E7-5222 State State Department NOTICES Committees; establishment, renewal, termination, etc.:
World Radiocommunication Conference, United States Delegation; expressions of interest, 13549-13550 E7-5253 Meetings: Shipping Coordinating Committee, 13550 E7-5252 Nonprofileration measures imposition: Chinese Government; permanent waiver, 13550 E7-5254 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 13505-13507 E7-5212 E7-5214 Technology Technology Administration NOTICES Meetings:
National Medal of Technology Nomination Evaluation Committee, 13480-13481 07-1436 Thrift Thrift Supervision Office RULES Community Reinvestment Act; implementation: Interagency uniformity, 13429-13436 E7-5188 Trade Trade Representative, Office of United States NOTICES World Trade Organization: European Union— Romania and Bulgaria; tariff concessions and applied duties; potential withdrawal and increase due to EU enlargement; hearing, 13538-13540 E7-5268 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration Treasury Treasury Department See Foreign Assets Control Office See Thrift Supervision Office MISSING FOR:
U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 13507-13508 E7-5251 Veterans Veterans Affairs Department NOTICES Meetings: Veterans’ Disability Benefits Commission, 13556-13557 07-1392 Separate Parts In This Issue Part II Environmental Protection Agency, 13560-13581 E7-5156 Part III Defense Department; General Services Administration; National Aeronautics and Space Administration, 13584-13590 07-1358 07-1359 07-1360 Part IV Labor Department, Mine Safety and Health Administration, 13592-13646 07-1402 Part V Interior Department, Indian Affairs Bureau, 13648-13652 E7-5220 Part VI Executive Office of the President, Presidential Documents, 13653-13669 07-1442 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 55 Thursday, March 22, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 301 [Docket No. APHIS-2007-0032] RIN 0579-AC38 Citrus Canker; Interstate Movement of Regulated Nursery Stock From Quarantined Areas AGENCY:
Animal and Plant Health Inspection Service, USDA. ACTION: Interim rule and request for comments. SUMMARY: We are amending the citrus canker quarantine regulations to explicitly prohibit, with limited exceptions, the interstate movement of regulated nursery stock from a quarantined area. The interstate movement of regulated nursery stock from an area quarantined for citrus canker poses a high risk of spreading citrus canker outside the quarantined area. We are including two exceptions to the prohibition.
We are allowing calamondin and kumquat plants, two types of citrus plants that are highly resistant to citrus canker, to move interstate from a quarantined area under a protocol designed to ensure that they are free of citrus canker prior to movement. We will also continue to allow the interstate movement of regulated nursery stock for immediate export, under certain conditions. This action is necessary to clarify our regulations and to address the risk associated with the interstate movement of regulated nursery stock from areas quarantined for citrus canker.
DATES: This interim rule is effective March 16, 2007. We will consider all comments that we receive on or before May 21, 2007. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0032 to submit or view public comments and to view supporting and related materials available electronically.
Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0032, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No.
APHIS-2007-0032. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Senior Operations Officer, Emergency Domestic Programs, Plant Protection and Quarantine, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1231;
(301)734-4387. SUPPLEMENTARY INFORMATION: Background Citrus canker is a plant disease that affects plants and plant parts, including fresh fruit, of citrus and citrus relatives (Family *Rutaceae* ). Citrus canker can cause defoliation and other serious damage to the leaves and twigs of susceptible plants. It can also cause lesions on the fruit of infected plants, which render the fruit unmarketable, and cause infected fruit to drop from the trees before reaching maturity. The aggressive A (Asiatic) strain of citrus canker can infect susceptible plants rapidly and lead to extensive economic losses in commercial citrus-producing areas. The regulations to prevent the interstate spread of citrus canker are contained in 7 CFR 301.75-1 through 301.75-14 (referred to below as the regulations). The regulations restrict the interstate movement of regulated articles from and through areas quarantined because of citrus canker and provide conditions under which regulated fruit and regulated seed may be moved from quarantined areas. On August 1, 2006, we published an interim rule in the **Federal Register** (71 FR 43345-43352, Docket No. APHIS-2006-0114) that designated the entire State of Florida as a quarantined area. The interim rule also amended the regulations governing the movement of regulated articles from a quarantined area to reflect the fact that the U.S. Department of Agriculture
(USDA)had announced on January 10, 2006, that the eradication program that USDA and the State of Florida had been pursuing was no longer a scientifically feasible option to address citrus canker. Eradication had become an infeasible option in Florida due to the rapid spread of citrus canker across that State that occurred during the hurricane seasons of 2004 and 2005. The amendments we made to our regulations in the August 2006 interim rule were consistent with the recommendations of the Citrus Health Response Program, whose goal is to improve the ability of the commercial citrus industry to produce, harvest, process, and ship healthy fruit in the presence of citrus canker. This program provides general guidance to regulatory officials and all sectors of the citrus industry on ways to safeguard against citrus canker and other citrus pests of concern. Regulations That Have Governed the Interstate Movement of Regulated Nursery Stock The Animal and Plant Health Inspection Service (APHIS) has historically not allowed the interstate movement of regulated nursery stock from areas quarantined for citrus canker, because that movement is considered to be the highest risk pathway for the spread of citrus canker. In virtually every case worldwide where citrus canker has been introduced into a new area, it has been through the movement of infected citrus nursery stock. If a citrus canker outbreak were to occur in another commercial citrus-producing area in the United States, the cost of eradicating the outbreak would be extremely high for both that State and the USDA, and citrus producers in that area could experience business interruptions and consequently lose substantial revenues. In § 301.75-2 of the regulations, paragraph
(a)prohibits the interstate movement of regulated articles except in accordance with the regulations. In addition, the regulations in § 301.75-6 have set out threshold conditions that must be met for the movement of regulated articles under §§ 301.75-7 and 301.75-8 from areas quarantined for citrus canker. These include requirements for surveying every regulated plant and regulated tree in every nursery in the quarantined area containing regulated plants and regulated trees at intervals of no more than 45 days and for treating personnel, vehicles, and equipment. The requirements in § 301.75-6 were intended to be threshold conditions for the interstate movement of regulated fruit, whose movement is subject to the additional conditions in § 301.75-7, and regulated seed, whose movement is subject to the additional conditions in § 301.75-8, from a quarantined area. The requirements of § 301.75-6, standing alone, did not serve to address the risk associated with the movement of regulated articles such as nursery stock from the quarantined area, however, since they did not include any provisions to ensure that the specific articles to be moved were free of citrus canker. In fact, these requirements were not intended to serve as necessary and sufficient conditions under which the movement of regulated articles such as nursery stock would be allowed. We have considered the interstate movement of nursery stock to be prohibited under § 301.75-2(a) because we have not had regulations in place that specifically set forth the conditions under which the interstate movement of nursery stock from a quarantined area would be allowed. However, the regulations have also not contained any provision specifically prohibiting the interstate movement of regulated nursery stock from the quarantined area. Given that, the general requirements in § 301.75-6 could also have been read as allowing the interstate movement of any regulated article not specifically named elsewhere in the regulations, including nursery stock, subject to the conditions in that section. As stated earlier, APHIS' intent has always been to prohibit the movement of all nursery stock except calamondin and kumquat plants from the quarantined area. (Our reasons for allowing the interstate movement of those plants are discussed later in this document under the heading “Protocol to Allow Interstate Movement of Calamondin and Kumquat Plants.”) Prior to the decision by the USDA that the eradication program was no longer a scientifically feasible option to address citrus canker in Florida, the State of Florida had placed restrictions on the intrastate movement of regulated nursery stock from the quarantined area. Under its authority, the State of Florida placed “stop-sale” orders on all nursery stock in the quarantined area, thus preventing its movement, and also destroyed any plants or trees that were infected with citrus canker as well as any regulated plants or trees that were located within 1,900 feet of an infected plant or tree. These intrastate movement restrictions effectively prohibited the movement of regulated nursery stock from the quarantined area. However, after the USDA decision and the subsequent designation of the entire State of Florida as a quarantined area, the State of Florida stopped routinely destroying infected and exposed trees and plants and issuing stop-sale orders for uninfected nurseries in the quarantined area, since the goal of the citrus canker program was no longer to eradicate citrus canker in Florida but to manage it. Therefore, we need to amend the regulations to explicitly prohibit, with limited exceptions, the interstate movement of regulated nursery stock, to codify our long-standing policy in that regard and to remove any ambiguity that may have arisen from the provisions in § 301.75-6. Accordingly, this interim rule prohibits the interstate movement of regulated nursery stock from a quarantined area. (This interim rule adds a definition of *nursery stock* to the definitions in § 301.75-1. The definition reads: “Living plants and plant parts intended to be planted, to remain planted, or to be replanted.” We are also amending the definition of *regulated fruit, regulated plant, regulated seed, regulated tree* so that it includes nursery stock. Thus, nursery stock derived from any citrus plant is considered to be regulated nursery stock.) We are including two exceptions to the prohibition: Calamondin and kumquat plants are allowed to move interstate from a quarantined area under a protocol designed to ensure that they are free of citrus canker prior to movement, and regulated nursery stock that is otherwise ineligible for interstate movement may be moved for immediate export. To codify these changes, we are amending § 301.75-6 to address the interstate movement of regulated nursery stock. The changes we are making to the regulations are discussed directly below. Amendments to § 301.75-6 To Address Regulated Nursery Stock As discussed earlier, prior to the effective date of this interim rule, § 301.75-6 set out threshold conditions that had to be met for the movement of regulated articles from the quarantined area under §§ 301.75-7 and 301.75-8. We are revising the title of the section to read “Interstate movement of regulated nursery stock from a quarantined area” to reflect its new focus. We have moved the requirements in paragraph
(b)to a new paragraph
(c)and amended the paragraph to refer generally to nursery stock rather than only to plants and trees. This paragraph, which was originally added to the regulations in the August 2006 interim rule, allows regulated nursery stock produced in a nursery located in a quarantined area that is not otherwise eligible for movement to be moved interstate for immediate export. To be moved under this paragraph, the regulated nursery stock must be accompanied by a limited permit issued in accordance with § 301.75-12 and must be moved in a container sealed by APHIS directly to the port of export in accordance with the conditions of the limited permit. We are replacing the remainder of § 301.75-6 with new regulations. Prior to our August 2006 interim rule, paragraph
(a)of § 301.75-6 required inspections at 45-day intervals of all regulated plants and regulated trees in nurseries within the quarantined area and annual inspections of all other regulated plants and regulated trees (except houseplants) within the quarantined area. In the “Background” section of the August 2006 interim rule, we stated that the level of inspection that had been required in § 301.75-6 “is necessary for a regulatory program focused on eradication but it is no longer appropriate in all cases given the current circumstances. Therefore, we are moving those requirements from § 301.75-6 to § 301.75-4(d).” That paragraph contains provisions under which an area less than an entire State may be designated as a quarantined area; our intention was to move all provisions in the regulations that were related to eradication to that paragraph, as we would normally pursue eradication only in an area less than an entire State. However, while we did add those requirements to § 301.75-4(d), only the provision regarding annual inspections was removed from § 301.75-6 in the August 2006 interim rule. Therefore, we are removing the provision regarding inspection of nurseries within the quarantined area from § 301.75-6 in this interim rule. Paragraph (a)(2) of § 301.75-6 has required that, in the quarantined area, all vehicles, equipment, and other articles used in providing inspection, maintenance, harvesting, or related services in any grove containing regulated plants or regulated trees be treated in accordance with § 301.75-11(d) upon leaving the grove. Paragraph (a)(2) has also required that all personnel who enter the grove or premises to provide these services must be treated in accordance with § 301.75-11(c) upon leaving the grove. These requirements are designed to protect groves from the artificial spread of citrus canker and are more properly located in § 301.75-7, i.e., in the regulations governing the interstate movement of fruit from the quarantined area, which require that regulated fruit come from a grove free of citrus canker in order to be eligible for interstate movement. Accordingly, we are moving the requirements that have been in § 301.75-6(a)(2) into paragraph
(a)of § 301.75-7. In this interim rule, we are revising paragraph
(a)of § 301.75-6 to state that regulated nursery stock may not be moved interstate from a quarantined area except for immediate export in accordance with newly redesignated paragraph
(c)of § 301.75-6, with the proviso that calamondin and kumquat plants may be moved interstate from a quarantined area in accordance with a new paragraph (b). The provisions of this paragraph (b), along with our reasons for including them in the regulations, are discussed in detail directly below. Protocol to Allow Interstate Movement of Calamondin and Kumquat Plants In a final rule published in the **Federal Register** on March 24, 1989 (54 FR 12175-12183), we made several changes to the citrus canker regulations, including adding provisions to allow the interstate movement of own-root-only calamondin and kumquat plants under limited permit to all areas of the United States except commercial citrus-producing areas. This final rule was published subsequent to a proposed rule we published in the **Federal Register** on October 21, 1988 (53 FR 41538-41549, Docket No. 88-105). We received 32 comments on that proposal, but none addressed the provisions for the interstate movement of calamondin and kumquat plants. Therefore, we adopted the proposed provisions in our final rule, without change. The provisions adopted in that final rule are similar to the provisions under which we are allowing the interstate movement of calamondin and kumquat plants in this interim rule. At the time the March 1989 final rule was published, the entire State of Florida was quarantined for citrus canker. However, in a final rule published in the **Federal Register** on September 11, 1990 (55 FR 37441-37453, Docket No. 90-114), we substantially revised the regulations to reflect the fact that the disease that had been called the Florida nursery strain of citrus canker was in fact a less serious disease called citrus bacterial spot. Therefore, in the September 1990 final rule, the area of Florida quarantined for citrus canker was reduced to a much smaller area where the Asiatic strain of citrus canker was present. The September 1990 final rule also removed the provisions allowing the interstate movement of calamondin and kumquat plants from quarantined areas. We did not provide a reason for removing those provisions in either the final rule or the proposed rule that preceded it. Because the reduction in the quarantined area meant that most nurseries in Florida were now eligible to move regulated nursery stock of any kind interstate without restrictions, it can be presumed that the change did not have much negative effect on the nursery stock industry in Florida. The August 2006 interim rule again quarantined the entire State of Florida for citrus canker, thus prohibiting the interstate movement of regulated nursery stock from all nurseries in the State. To provide any possible relief from these restrictions, we reexamined the movement of calamondin and kumquat plants and determined the safeguards that the protocol required for the interstate movement of these highly resistant plants would mitigate the risk of spreading citrus canker from a quarantined area through the interstate movement of these plants. We subsequently began allowing such movement through administrative action pending the development of regulations. This interim rule codifies that protocol. The biological basis for allowing the interstate movement of calamondin and kumquat plants remains the same: These two types of citrus are highly resistant to infection by the bacterium that causes citrus canker. 1 Additionally, we are requiring that these plants be produced in conditions that will further minimize the risk that they could be infected with citrus canker. Under paragraph
(b)of § 301.75-6, calamondin and kumquat plants may only be moved interstate if all of the following conditions are met: 1 See Gottwald, T.R., Graham, J.H., and Schubert, T.S. 2002. Citrus canker: The pathogen and its impact. Plant Health Progress doi:10.1094/PHP-2002-0812-01-RV. Available at *http://www.plantmanagementnetwork.org/pub/php/review/citruscanker/* . • The plants are own-root-only and have not been grafted or budded; • The plants are started, are grown, and have been maintained solely at the nursery from which they will be moved interstate. • If the plants are not grown from seed, then the cuttings used for propagation of the plants are taken from plants located on the same nursery premises or from another nursery that is eligible to produce calamondin and kumquat plants for interstate movement under the requirements of § 301.75-6(b). Cuttings may not be obtained from properties where citrus canker is present. • All citrus plants at the nursery premises have undergone State inspection and have been found to be free of citrus canker no less than three times. The inspections must be at intervals of 30 to 45 days, with the most recent inspection being within 30 days of the date on which the plants are removed and packed for shipment. • All vehicles, equipment, and other articles used in providing inspection, maintenance, or related services in the nursery must be treated in accordance with § 301.75-11(d) before entering the nursery to prevent the introduction of citrus canker. All personnel who enter the nursery to provide these services must be treated in accordance with § 301.75-11(c) before entering the nursery to prevent the introduction of citrus canker. • If citrus canker is found in the nursery, all regulated plants and plant material must be removed from the nursery and all areas of the nursery's facilities where plants are grown and all associated equipment and tools used at the nursery must be treated in accordance with § 301.75-11(d) in order for the nursery to be eligible to produce calamondin and kumquat plants to be moved interstate under § 301.75-6(b). Fifteen days after these actions are completed, the nursery may receive new calamondin and kumquat seed or cuttings from a nursery that is eligible to produce calamondin and kumquat plants for interstate movement under § 301.75-6(b). The bacterium that causes citrus canker is extremely unlikely to survive if left for 15 days without host material to infect. • The plants, except for plants that are hermetically sealed in plastic bags before leaving the nursery, are completely enclosed in containers or vehicle compartments during movement through the quarantined area. This requirement will prevent infection during transportation through the quarantined area. Paragraph
(b)also requires that the plants be moved under limited permit to ensure that they are only moved to areas other than commercial citrus-producing areas. This requirement is contained in paragraph (b)(8), which requires that the calamondin or kumquat plants or trees be accompanied by a limited permit issued in accordance with § 301.75-12. The statement “Limited permit: Not for distribution in AZ, CA, HI, LA, TX, and American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands of the United States” must be displayed on a plastic or metal tag attached to each plant, or on the box or container if the plant is sealed in plastic. In addition, this statement must be displayed on the outside of any shipping containers used to transport these plants, and the limited permit must be attached to the bill of lading or other shipping document that accompanies the plants. Section 301.75-12 contains general requirements for issuance and attachment of limited permits under the regulations. Paragraph
(b)of that section requires that the limited permit accompanying a regulated article be attached to the outside of the article, the outside of the container, or the waybill. As described in the previous paragraph, the protocol for the interstate movement of calamondin and kumquat trees imposes additional, specific requirements related to the limited permit that are designed to provide as much assurance as possible that the nursery stock will not be moved into a commercial citrus-producing area. Accordingly, we are amending § 301.75-12(b) to make it clear that the specific requirements for attaching limited permits to calamondin and kumquat plants supersede the general provisions of § 301.75-12(b). We believe these conditions will ensure the safe interstate movement of calamondin and kumquat plants from the quarantined area, as they did prior to the September 1990 final rule. Finally, we are also revising paragraph
(a)of § 301.75-2 to state that regulated articles may not be moved interstate from a quarantined area except in accordance with a protocol in §§ 301.75-6, 301.75-7, or 301.75-8; in accordance with § 301.75-4 if less than an entire State is designated as a quarantined area; or in accordance with the regulations in § 301.75-9 for scientific or experimental purposes only. We are making this change to clarify that the regulations prohibit the interstate movement from a quarantined area of all regulated articles other than those specifically addressed elsewhere in the regulations. If we determine that other regulated articles can be moved interstate from the quarantined area without spreading citrus canker, we will update the regulations to set out conditions for their movement. Miscellaneous Change We are also amending the definition of *nursery* . This definition has read: “Any premises, including greenhouses but excluding any grove, at which plants are grown or maintained for propagation or replanting.” We are amending this definition to replace the reference to plants with a reference to nursery stock, as defined in this interim rule. We are also removing the references to propagation and replanting. Any premises at which nursery stock is grown or maintained could be a source of nursery stock that is moved interstate, regardless of the intended use of that nursery stock, and should be required to fulfill all applicable provisions of the regulations. Emergency Action This rulemaking is necessary on an emergency basis to address the ambiguities in § 301.75-6 and the risk associated with the interstate movement of citrus nursery stock and other regulated articles from areas quarantined for citrus canker. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the **Federal Register** . We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the **Federal Register** . The document will include a discussion of any comments we receive and any amendments we are making to the rule. Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This interim rule codifies existing policies and clarifies the regulations to prohibit the interstate movement of regulated nursery stock from the quarantined area. Because the interstate movement of nursery stock from an area quarantined for citrus canker poses a high risk of spreading citrus canker outside the quarantined area, APHIS has prohibited this movement prior to the effective date of this interim rule. This change to the regulations will not have any effect on any entities, as it codifies existing procedures. In addition, the interim rule retains a provision of the regulations that allows the interstate movement of regulated nursery stock for immediate export, under certain conditions. The interim rule also provides for the interstate movement of calamondin and kumquat plants, two types of citrus plants that are highly resistant to citrus canker, if they are produced and moved under a protocol designed to ensure that they are free from citrus canker prior to movement. Prior to the publication of the August 2006 interim rule, which quarantined the entire State of Florida for citrus canker, the movement of all regulated nursery stock, including calamondin and kumquat plants, from the quarantined area was prohibited by Florida's statutes and regulations. However, since the publication of the August 2006 interim rule, APHIS has recognized the lower risk associated with the interstate movement of calamondin and kumquat plants by allowing them to move under the protocol designed to ensure that they are free of citrus canker, similar to how APHIS allowed that movement before the September 1990 final rule discussed earlier in this document reduced the area quarantined for citrus canker to an area less than the entire State of Florida. We have allowed the movement of calamondin and kumquat plants, subject to the protocol, through administrative action pending the development of regulations. Adding these provisions to the regulations in this interim rule simply codifies existing procedures. Because the changes to the regulations made by this interim rule will not have any effect on current quarantine operations, we expect that they will not have a significant economic impact on any entities, whether large or small. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule:
(1)Preempts all State and local laws and regulations that are inconsistent with this rule;
(2)has no retroactive effect; and
(3)does not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, we will publish a document in the **Federal Register** providing notice of the assigned OMB control number. We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses:
(1)Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and
(2)Docket No. APHIS-2007-0032, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. APHIS-2007-0032 and send your comments within 60 days of publication of this rule. This interim rule amends the citrus canker regulations to prohibit the interstate movement of nursery stock, except calamondin and kumquat plants produced in accordance with a production protocol and moved interstate to areas other than commercial citrus production areas. The imposition of the movement requirement will require regulated parties to secure limited permits for the interstate movement of calamondin and kumquat plants. We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:
(1)Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2)Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). *Estimate of burden:* Public reporting burden for this collection of information is estimated to average 0.0015 hours per response. *Respondents:* Citrus growers. *Estimated annual number of respondents:* 8. *Estimated annual number of responses per respondent:* 10,025. *Estimated annual number of responses:* 80,200. *Estimated total annual burden on respondents:* 120 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response). Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. List of Subjects in 7 CFR Part 301 Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. Accordingly, we are amending 7 CFR part 301 as follows: PART 301—DOMESTIC QUARANTINE NOTICES 1. The authority citation continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3. Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note). 2. Section 301.75-1 is amended by removing the definition of *regulated fruit, regulated plant, regulated seed, regulated tree,* revising the definition of *nursery,* and adding, in alphabetical order, new definitions of *nursery stock* and *regulated fruit, regulated nursery stock, regulated plant, regulated seed, regulated tree* to read as follows: § 301.75-1 Definitions. *Nursery.* Any premises, including greenhouses but excluding any grove, at which nursery stock is grown or maintained. *Nursery stock.* Living plants and plant parts intended to be planted, to remain planted, or to be replanted. *Regulated fruit, regulated nursery stock, regulated plant, regulated seed, regulated tree.* Any fruit, nursery stock, plant, seed, or tree defined as a regulated article. 3. In § 301.75-2, paragraph
(a)is revised to read as follows: § 301.75-2 General prohibitions.
(a)Regulated articles may not be moved interstate from a quarantined area except in accordance with a protocol in §§ 301.75-6, 301.75-7, or 301.75-8, or in accordance with § 301.75-4 if less than an entire State is designated as a quarantined area. Regulated articles may be moved in accordance with the regulations in § 301.75-9 for scientific or experimental purposes only. 4. Section 301.75-6 is revised to read as follows: § 301.75-6 Interstate movement of regulated nursery stock from a quarantined area.
(a)Regulated nursery stock may not be moved interstate from a quarantined area except for immediate export in accordance with paragraph
(c)of this section; *Provided* , that calamondin and kumquat plants may be moved interstate from a quarantined area in accordance with paragraph
(b)of this section.
(b)Calamondin ( *Citrus mitus* ) and kumquat ( *Fortunella* spp.) plants, with or without fruit attached, may be moved interstate from a quarantined area into any area of the United States except commercial citrus-producing areas if all of the following conditions are met:
(1)The plants are own-root-only and have not been grafted or budded;
(2)The plants are started, are grown, and have been maintained solely at the nursery from which they will be moved interstate.
(3)If the plants are not grown from seed, then the cuttings used for propagation of the plants are taken from plants located on the same nursery premises or from another nursery that is eligible to produce calamondin and kumquat plants for interstate movement under the requirements of this paragraph (b). Cuttings may not be obtained from properties where citrus canker is present.
(4)All citrus plants at the nursery premises have undergone State inspection and have been found to be free of citrus canker no less than three times. The inspections must be at intervals of 30 to 45 days, with the most recent inspection being within 30 days of the date on which the plants are removed and packed for shipment.
(5)All vehicles, equipment, and other articles used in providing inspection, maintenance, or related services in the nursery must be treated in accordance with § 301.75-11(d) before entering the nursery to prevent the introduction of citrus canker. All personnel who enter the nursery to provide these services must be treated in accordance with § 301.75-11(c) before entering the nursery to prevent the introduction of citrus canker.
(6)If citrus canker is found in the nursery, all regulated plants and plant material must be removed from the nursery and all areas of the nursery's facilities where plants are grown and all associated equipment and tools used at the nursery must be treated in accordance with § 301.75-11(d) in order for the nursery to be eligible to produce calamondin and kumquat plants to be moved interstate under this paragraph (b). Fifteen days after these actions are completed, the nursery may receive new calamondin and kumquat seed or cuttings from a nursery that is eligible to produce calamondin and kumquat plants for interstate movement under this paragraph (b).
(7)The plants, except for plants that are hermetically sealed in plastic bags before leaving the nursery, are completely enclosed in containers or vehicle compartments during movement through the quarantined area.
(8)The calamondin or kumquat plants or trees are accompanied by a limited permit issued in accordance with § 301.75-12. The statement “Limited permit: Not for distribution in AZ, CA, HI, LA, TX, and American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands of the United States” must be displayed on a plastic or metal tag attached to each plant, or on the box or container if the plant is sealed in plastic. In addition, this statement must be displayed on the outside of any shipping containers used to transport these plants, and the limited permit must be attached to the bill of lading or other shipping document that accompanies the plants.
(c)Regulated nursery stock produced in a nursery located in a quarantined area that is not eligible for movement under paragraph
(b)of this section may be moved interstate only for immediate export. The regulated nursery stock must be accompanied by a limited permit issued in accordance with § 301.75-12 and must be moved in a container sealed by APHIS directly to the port of export in accordance with the conditions of the limited permit. 5. Section 301.75-7 is amended by redesignating paragraph (a)(5) as paragraph (a)(6) and by adding a new paragraph (a)(5) to read as follows: § 301.75-7 Interstate movement of regulated fruit from a quarantined area.
(a)* * *
(5)All vehicles, equipment, and other articles used in providing inspection, maintenance, harvesting, or related services in the grove must be treated in accordance with § 301.75-11(d) upon leaving the grove. All personnel who enter the grove or premises to provide these services must be treated in accordance with § 301.75-11(c) upon leaving the grove. § 301.75-12 [Amended] 6. In § 301.75-12, the introductory text of paragraph (b)(1) is amended by removing the word “Certificates” and adding the words “Except as provided in § 301.75-6(b)(8) for calamondin and kumquat plants, certificates” in its place. Done in Washington, DC, this 16th day of March 2007. Nick Gutierrez, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-5229 Filed 3-21-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 78 [Docket No. APHIS-2006-0138] Brucellosis in Cattle; State and Area Classifications; Wyoming AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Affirmation of interim rule as final rule. SUMMARY: We are adopting as a final rule, without change, an interim rule that amended the brucellosis regulations concerning the interstate movement of cattle by changing the classification of Wyoming from Class A to Class Free. We have determined that Wyoming meets the standards for Class Free status. This action relieves certain restrictions on the interstate movement of cattle from Wyoming. DATES: Effective on March 22, 2007, we are adopting as a final rule the interim rule published at 71 FR 54402-54404 on September 15, 2006. FOR FURTHER INFORMATION CONTACT: Dr. Debbi A. Donch, Senior Staff Veterinarian, Ruminant Health Programs, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231;
(301)734-5952. SUPPLEMENTARY INFORMATION: Background Brucellosis is a contagious disease affecting animals and humans, caused by bacteria of the genus *Brucella* . The brucellosis regulations, contained in 9 CFR part 78 (referred to below as the regulations), provide a system for classifying States or portions of States according to the rate of *Brucella* infection present and the general effectiveness of a brucellosis control and eradication program. The classifications are Class Free, Class A, Class B, and Class C. States or areas that do not meet the minimum standards for Class C are required to be placed under Federal quarantine. In an interim rule 1 effective September 12, 2006, and published in the **Federal Register** on September 15, 2006 (71 FR 54402-54404, Docket No. APHIS-2006-0138), we amended the regulations by changing the classification of the State of Wyoming from Class A to Class Free. That action relieved certain restrictions on the interstate movement of cattle from Wyoming. 1 To view the interim rule and the comments we received, go to *http://www.regulations.gov* , click on the “Advanced Search” tab, and select “Docket Search.” In the Docket ID field, enter APHIS-2006-0138, then click “Submit.” Clicking on the Docket ID link in the search results page will produce a list of all documents in the docket. Comments on the interim rule were required to be received on or before November 14, 2006. We received one comment by that date, from an industry group. The commenter supported our determination that Wyoming has met the requirements to be classified as a Class Free State. The commenter also raised separate points related to this change in classification, which we will address in this document. The interim rule stated that the last brucellosis-infected herd of cattle in Wyoming was depopulated in December 2004. The commenter stated that, because the requirements for Class Free classification state that all cattle herds in a Class Free State or area must remain free of field strain *Brucella abortus* for 12 consecutive months, Wyoming should have been upgraded to the Class Free classification much earlier than September 2006. In addition to satisfying the requirement for freedom in paragraph (b)(1) of the criteria for a Class Free State or area in § 78.1, the Animal and Plant Health Inspection Service (APHIS) must determine that a State or area meets all the other requirements in those criteria prior to classifying a State or area as Class Free. This process can take some time, but it would not be appropriate to classify a State or area as Class Free until the process is completed. The commenter also referred to surveillance programs and risk mitigation measures that are in place to address the risk associated with reservoirs of brucellosis in wild animals in Sublette, Teton, Lincoln, Fremont, Hot Springs, and Park Counties in Wyoming. The commenter stated that APHIS required that this surveillance and risk mitigation be undertaken in order for Wyoming to be reclassified as a Class Free State. The commenter stated that the regulations and the Animal Health Protection Act (7 U.S.C. 8301-8317) do not give APHIS the authority to impose such requirements in order to achieve Class Free status. The commenter inaccurately characterizes the origin of these surveillance programs and risk mitigation measures. APHIS' review of the Wyoming brucellosis program recommended that surveillance programs and risk mitigation measures be established to address the risk of infection transmitted from wild animals. We also recommended that the State of Wyoming develop a memorandum of understanding with APHIS to implement these programs and measures. The State of Wyoming recognized the risk associated with the reservoirs of brucellosis that exist in wild animals in parts of that State and took action in cooperation with APHIS. We based our decision to reclassify Wyoming as a Class Free State for brucellosis on the State's compliance with the requirements in the regulations regarding Class Free status. Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change. This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act. Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866. List of Subjects in 9 CFR Part 78 Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and recordkeeping requirements, Transportation. PART 78—BRUCELLOSIS Accordingly, we are adopting as a final rule, without change, the interim rule that amended 9 CFR part 78 and that was published at 71 FR 54402-54404 on September 15, 2006. Done in Washington, DC, this 16th day of March 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-5230 Filed 3-21-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Part 563e [No. 2007-03] RIN 1550-AC08 Community Reinvestment Act—Interagency Uniformity AGENCY: Office of Thrift Supervision, Treasury (OTS), Treasury. ACTION: Final rule. SUMMARY: In this final rule, OTS is changing its Community Reinvestment Act
(CRA)regulations in four areas to reestablish uniformity between its regulations and those of the other federal banking agencies. OTS is making these revisions to its CRA rule to promote consistency and help facilitate objective evaluations of CRA performance across the banking and thrift industries. Consistent standards will allow the public to make more effective comparisons of bank and thrift CRA performance. Additionally, OTS is incorporating changes that reinforce CRA objectives consistent with the ongoing performance of savings associations in meeting the financial services needs of the communities they serve. To advance these objectives OTS is aligning its CRA rule with the rule adopted by the banking agencies by:
(1)Eliminating the option of alternative weights for lending, investment, and service under the large, retail savings association test;
(2)defining small savings associations with between $250 million and $1 billion in assets as “intermediate small savings associations” and establishing a new community development test for them;
(3)indexing the asset threshold for small and intermediate small savings associations annually based on changes to the Consumer Price Index (CPI); and
(4)clarifying the impact on a savings association's CRA rating if OTS finds evidence of discrimination or other illegal credit practices. DATES: This rule is effective on July 1, 2007. FOR FURTHER INFORMATION CONTACT: Celeste Anderson, Senior Project Manager, Compliance and Consumer Protection,
(202)906-7990; Richard Bennett, Counsel, Regulations and Legislation Division,
(202)906-7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: A. Background The CRA requires the federal banking and thrift agencies to assess the record of each insured depository institution of meeting the credit needs of its entire community, including low- and moderate-income neighborhoods, consistent with the safe and sound operation of the institution, and to take that record into account when evaluating an application by the institution for a deposit facility. 12 U.S.C. 2903. In 1995, when OTS, the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation
(FDIC)(collectively, the four agencies) adopted major amendments to regulations implementing the CRA, they committed to reviewing the amended regulations in 2002 for their effectiveness in placing performance over process, promoting consistency in evaluations, and eliminating unnecessary burden. 60 FR 22156, 22177 (May 4, 1995). The four agencies indicated that they would determine whether and, if so, how the regulations should be amended to better evaluate financial institutions' performance under the CRA, consistent with the Act's authority, mandate, and intent. The four agencies initiated their public review in July 2001 with publication in the **Federal Register** of an advance notice of proposed rulemaking (ANPR). 66 FR 37602 (July 19, 2001). In the ANPR, the agencies requested comment on whether the regulations were effective in meeting the stated goals of the 1995 rulemaking and whether any changes should be made to the rules. The agencies also solicited comment on a wide variety of issues including the large retail institution test, the small institution test, the community development test for limited purpose and wholesale institutions, strategic plans, performance context, assessment areas, affiliate activities, and data collection and maintenance of public files. After nearly three years of discussions, in February 2004, the four agencies published a notice of proposed rulemaking. 69 FR 5729 (Feb. 6, 2004). Through it, the Agencies proposed to raise the small institution asset threshold to $500 million without regard to holding company affiliation; to amend the regulations to provide that certain discriminatory, illegal, or abusive credit practices would adversely affect the evaluation of the institution's CRA performance; and to enhance the data disclosed in CRA public evaluations and CRA disclosure statements. On July 16, 2004, the OCC and the Board announced that they would not proceed with their respective February 2004 proposals. The OCC did not formally withdraw the proposal, but did not adopt it. The Board formally withdrew its proposal. On August 18, 2004, OTS published a final rule that raised the small savings association asset threshold to $1 billion without regard to holding company affiliation effective October 1, 2004. 69 FR 51155 (Aug. 18, 2004). On August 20, 2004, the FDIC issued another proposed rule. 69 FR 51611 (Aug. 20, 2004). The FDIC proposed to raise the small institution asset threshold to $1 billion, while adding a community development activity criterion to the small institution test for banks with assets greater than $250 million up to $1 billion. It also proposed to expand the definition of “community development” to encompass a broader range of activities in rural areas. On November 24, 2004, OTS proposed further CRA regulatory reforms. 69 FR 68257 (Nov. 24, 2004). Like the FDIC, it proposed to expand the definition of “community development” to encompass certain community development activities in underserved nonmetropolitan areas. OTS also solicited comment on expanding the definition of “community development” to encompass certain community development activities in areas affected by natural or other disasters or other major community disruptions without regard to whether those areas or the individuals served were low- or moderate-income. Further, OTS solicited comment on providing additional flexibility in the CRA examinations of large retail institutions. On March 2, 2005, OTS adopted a final rule effective April 1, 2005, that provided additional flexibility under the large retail savings association test allowing savings associations to choose to be evaluated under weights that differed from the standard previously adopted by the agencies whereby approximately 50 percent weight was placed on lending, 25 percent weight on services, and 25 percent weight on investments. 70 FR 10023 (Mar. 2, 2005). After OTS adopted final rules on CRA regulatory reform, the other agencies also amended their CRA rules. On August 2, 2005, following their publication of a notice of proposed rulemaking (70 FR 12148, 12149 (Mar. 11, 2005)), the OCC, the Board, and the FDIC (collectively, the three agencies) issued a joint final rule amending their CRA regulations. 70 FR 44256 (Aug. 2, 2005). The three agencies' August 2005 final rule extended eligibility for streamlined lending evaluations and the exemption from data reporting to banks under $1 billion, without regard to holding company assets. The three agencies' final rule expanded the definition of “community development” to include certain activities in underserved rural areas and disaster areas. The three agencies' final rule contained some differences from provisions OTS had proposed or finalized. It provided that the three agencies would separately evaluate and rate the community development records of institutions between $250 million and $1 billion (termed “intermediate small banks” by the three agencies), but under a new, more streamlined basis than under the large retail institution test. Under this new test, the three agencies no longer require an intermediate small bank to collect and report data on small business or small farm loans or on the location of certain nonmetropolitan mortgage loans. However, the new test contains two components, a lending test and a community development test. The three agencies' final rule also refined one aspect of the February 2004 joint proposal to provide that evidence of discrimination or evidence of credit practices that violate an applicable law, rule, or regulation could adversely affect an agency's evaluation of a bank's CRA performance. The final rule included an illustrative list of such practices. Further, it provided that the asset thresholds would be adjusted annually for inflation, based on changes to the Consumer Price Index. On April 12, 2006, OTS adopted a further final rule revising the definition of “community development” to reduce burden and provide greater flexibility to meet community needs. The revised definition is the same as the definition that the Board, OCC, and FDIC adopted in their August 2, 2005 final rule. B. OTS's November 2006 Proposal On November 24, 2006, OTS issued a new proposed rule. In the SUPPLEMENTARY INFORMATION to that rule, OTS stated its belief that its rule changes over the past three years had achieved regulatory burden reduction. All four agencies have reduced the regulatory burden associated with the CRA regulations through steps such as amending the definition of small bank. However, OTS also stated its belief that consistent standards applied equally across the banking and thrift industries could facilitate objective evaluations of CRA performance and ensure accurate assessments of institutions that operate in the same market. As a result, OTS proposed to align its CRA regulation with those of the other federal banking agencies to best serve the interests of insured depository institutions and their communities by providing for consistency in regulation and compliance. In issuing the proposal, OTS noted that savings associations have an excellent record in the provision of credit, investments, and services in their markets, particularly in low- to moderate-income communities. OTS observed that in its experience, as a percentage of their total assets, savings associations far outdistance banks and other lenders in originating multi-family housing loans, a vehicle frequently utilized to provide affordable housing. 1 OTS stated its belief that savings associations would continue to serve their markets, including low- and moderate-income communities, regardless of the applicable CRA rules. 1 OTS calculated that as of June 30, 2006, savings association had 4.41% of their assets in multifamily loans whereas commercial banks had only 1.03% of their assets in multifamily loans. OTS proposed changes to its CRA regulations in four areas. While the preamble addressed each area in turn, the SUPPLEMENTARY INFORMATION highlighted that the overriding question OTS posed to commenters with respect to each area was whether the benefits of greater regulatory uniformity and any other benefits outweigh any potential disadvantages. OTS also invited comment on all aspects of the proposal, including whether OTS should make any variations to the approach adopted by the other federal banking agencies in any of these areas. 1. Alternative Weights OTS's March 2005 final rule provided additional flexibility for the weights given to lending, services, and investments for each examination under the large retail savings association test. OTS issued guidance on April 7, 2005, explaining the methodology it would apply through Thrift Bulletin 85 (April 7, 2005). The other three agencies have not adopted this approach. In its November 24, 2006 proposal, OTS proposed to eliminate alternative weights to facilitate uniformity in the assessment of CRA performance between banks and thrifts. Most large institutions elected to continue to allocate weights under the three performance categories of lending, investments, and services. OTS noted that if the agency eliminated the alternative weight option for large savings associations, large savings associations would retain flexibility to focus their CRA efforts with emphasis on lending, just as they have in the past. For example, a savings association with outstanding performance in lending and services would still receive an “outstanding” CRA rating overall, even if it makes few or no qualified investments. Additionally, a savings association with a poor record on the service test and few or no qualified investments would still receive a “satisfactory” CRA rating overall if its lending is at least highly satisfactory. The SUPPLEMENTARY INFORMATION recounted how a savings association with a strong lending record has always been able to receive at least a “low satisfactory” rating on the investment test while making few or no qualified investments due to limits on savings associations' investment authority. This policy originated in the preamble to 1995 CRA rule. Because of differences between savings associations and other financial institutions ( *e.g.* , the qualified thrift lender test and lending and investment limits on commercial loans and community development investments) a savings association could receive at least a “low satisfactory” rating on the investment test without making qualified investments depending upon its lending performance. 60 FR at 22163. Similarly, the 2001 Interagency Q&A Regarding Community Reinvestment indicates that a savings association that has made few or no qualified investments due to its limited investment authority may still receive a satisfactory rating under the investment test if it has a strong lending record. Q&A 21(b)(4), 66 FR 36620, 36631 (July 12, 2001). The SUPPLEMENTARY INFORMATION explained that if OTS were to eliminate the alternative weight option, these principles would continue to apply. The SUPPLEMENTARY INFORMATION also pointed out that a savings association that would like OTS to evaluate its performance based on even more flexible criteria could opt for a strategic plan. While a strategic plan for a large retail savings association should generally address all three performance categories (lending, service, and investment), a different emphasis, including a focus on one or more performance categories, may be appropriate. The CRA rule specifically provides—and would continue to provide—that such a focus may be appropriate if responsive to the characteristics and credit needs of its assessment area, considering public comment and the savings association's capacity and constraints, product offerings, and business strategy. 12 CFR 563e.27(f)(ii). 2. Community Development Test OTS's August 2004 final rule raised the small savings association asset threshold from $250 million to $1 billion and eliminated consideration of holding company affiliation. This change enabled OTS to evaluate the CRA performance of savings associations with $250 million or more, but less than $1 billion, in assets under the small savings association test. In contrast to OTS, the other three agencies imposed a different community development test for institutions with $250 million or more, but less than $1 billion, in assets, called “intermediate small banks.” Under their test, the three agencies evaluate an intermediate small bank's lending performance under the small bank lending criteria, but they also evaluate the bank's community development performance under the following criteria: • The number and amount of community development loans; • The number and amount of qualified investments; • The extent to which the bank provides community development services; and • The bank's responsiveness through such activities to community development lending, investment, and services needs. OTS proposed to adopt the intermediate small institution test. In the supplementary information to the November 24, 2006 proposal, OTS stated its belief that intermediate small savings associations are responsive to the community development needs within the communities they serve. The adoption of the intermediate small institution test would provide a more comprehensive framework for assessing the community development performance of intermediate small savings associations than the small savings association performance criteria. In addition, adopting the intermediate small institution test would assist the public in making a reasonable comparison of community development performance between banks and savings associations operating in the same market. OTS explained that it anticipated that if it adopted this test, it would allow flexibility. This proposal did not prescribe a required threshold for community development loans, qualified investments, and community development services. Instead, OTS explained that based on the savings association's assessment of community development needs in its assessment area(s), it would be able to engage in those categories of community development activities that are responsive to observed needs and consistent with the savings association's capacity. Savings associations that have been providing community development loans and services, would find that OTS would continue to give those activities credit when OTS evaluates compliance under the new test. Further, as under the large retail institution test, examiners would take into account statutory and supervisory limitations on a savings association's ability to engage in any lending, investment, and service activities. For example, OTS could still deem a savings association that has made few or no qualified investments due to limits on investment authority to have satisfied the criterion in the community development component of the test regarding “the number and amount of qualified investments” if the institution has a strong lending record. 3. Indexing Asset Thresholds The SUPPLEMENTARY INFORMATION to the November 24, 2006 proposal pointed out that OTS had not previously proposed to index the relevant asset thresholds for purposes of determining whether an institution is small or large. In contrast, the three agencies' final rule provides that they annually adjust the asset thresholds for small and intermediate small banks based on changes to the Consumer Price Index (CPI). Therefore, to ensure consistency in the standards for evaluating small and intermediate savings associations, OTS proposed to index the asset threshold consistent with the approach adopted by the other federal banking agencies. As the three agencies explained in the preamble to their March 11, 2005 proposed rule (70 FR at 12151), there is precedent for indexing asset thresholds to the CPI. Under the Home Mortgage Disclosure Act, 12 U.S.C. 2801 *et seq.* , institutions under a certain asset threshold are exempt from HMDA requirements. The threshold is adjusted annually to the CPI and rounded to the nearest multiple of $1 million. 12 U.S.C. 2808. 4. Discriminatory or Other Illegal Credit Practices The SUPPLEMENTARY INFORMATION to the November 24, 2006 proposal referred to the preamble to OTS's August 2004 final rule, which explained why OTS had withdrawn one part of its portion of the February 2004 joint proposed rule. The withdrawn language would have added regulatory text providing that evidence that an institution or affiliate engages in discriminatory, illegal, or abusive credit practices would adversely affect the evaluation of the institution's CRA performance. Opposition came from financial institutions and consumer groups. OTS indicated in August 2004 that it would continue to rely on the more general provision in its rule that evidence of discriminatory or other illegal credit practices adversely affects the performance evaluation as interpreted in interagency Q&A 28(c)-1, 66 FR at 36640. The language adopted by the other three agencies in their August 2005 final rule stated that with respect to discrimination in affiliate lending, the three agencies would reduce a rating based on discrimination in an affiliate's loans made inside the institution's assessment area where the loans have been considered as part of the institution's lending performance. The three agencies explained in the preamble to their August 2, 2005 final rule (70 FR at 44263) that a bank may not elect to include as part of its CRA evaluation affiliate loans outside the bank's assessment area. OTS proposed to amend its CRA rule to reflect this approach. C. The Comments 1. Overview of the Comments OTS received 66 comments in total on the proposed rule from: One member of Congress in support; three trade associations, one in support (or at least not opposed) and two opposed; three savings associations opposed; 58 from individuals and organizations dedicated to consumer, affordable housing, and community development causes in support; and one national bank in support. Fifty-four commenters supported all aspects of the proposal. Another six supported everything except indexing of asset thresholds. One trade association did not oppose the proposal and supported indexing of asset thresholds. Two other trade associations supported indexing of asset thresholds; one of these also supported the provision on discriminatory or other illegal credit practices. In contrast, two trade associations and two large savings associations opposed eliminating alternative weights. Those trade associations and one intermediate small savings association (as defined by the final rule) opposed imposing the new community development test on intermediate small institutions. Most who commented recommend that the changes take effect right away. In contrast, one trade association supported a two-year transition period for large and intermediate small savings associations. Another trade association requested a transition period of at least one examination cycle for intermediate small institutions if OTS changes its rule. One organization that advocates for community reinvestment said it did not object to OTS waiting six months to a year before conducting more exams for large or intermediate small savings associations. 2. Comments in Support of Proposal Many of the commenters who supported the proposal raised similar points. The member of Congress who supported all aspects of the proposal, explained that it would restore uniformity and eliminate temptation to flip charters based on different CRA standards. That letter urged OTS to adopt the proposed changes as soon as possible. The industry trade association that supported (or at least did not oppose) the proposal explained that while it prefers OTS's approach on alternative weights and would have preferred that the other federal banking agencies had adopted OTS's rule, it realizes that the other federal banking agencies have not done so. It credited OTS with breaking the interagency logjam and allowing much needed progress on CRA. But it explained that given the position of the other agencies, it understood OTS's desire to make its rule uniform with the others. It added that uniformity would eliminate confusion for bankers and examiners and that consistency among the agencies would outweigh the benefits of only OTS offering alternative weights. This commenter supported indexing asset thresholds and did not oppose the provision on discriminatory or other illegal credit practices for uniformity. This commenter urged OTS, however, to provide a two-year transition period for large thrifts that relied on alternate weights and intermediate small thrifts that relied on the streamlined lending test to give them time to adjust their policies and procedures. One national organization that advocates for community reinvestment submitted a detailed letter and its comments were echoed by dozens of others dedicated to consumer protection, affordable housing, and community development causes. This organization supported all aspects of the proposal for several reasons including:
(1)It would increase lending, investing, and services in low- and moderate-income communities;
(2)establishing the same CRA standards are necessary for the public to be able to effectively compare performance;
(3)weaker standards for thrifts make it difficult to hold thrifts accountable for responding to community needs;
(4)different standards increase the possibility of some shirking their CRA obligations;
(5)the large bank test has worked well;
(6)the anti-predatory lending provision is necessary to penalize thrifts through lower CRA ratings if they engage in illegal, discriminatory, and abusive lending practices;
(7)research demonstrates that OTS's different rule resulted in declines by thrifts in community development lending, investments, and the number of branches in low- and moderate-income communities; and
(8)there is more CRA exam rating grade inflation for thrifts under OTS's rule. (A few other comment letters referred to this research as well.) While most of this organization's supporters urged OTS to make the changes effective immediately, the organization said that it did not object to OTS waiting six months to a year before conducting any more exams for mid-size and large thrifts to let them adjust to the new exams and find and execute community development financing and service activities. It also suggested that OTS could use performance context to take into account that a thrift's community development activities might be on the low side for the period in which the thrift was covered by the different rules because of the rules that existed during that period. One national organization that advocates for affordable housing lending supported all aspects of the proposal. It stated that consistency among regulators helps communities and institutions maximize the opportunities to make loans and sell services and that consistency among regulators avoids a regulatory “race to the bottom.” Many other commenters echoed these sentiments. OTS also received several letters from housing authorities supporting the proposal except for indexing asset thresholds. These commenters argued that over time, indexing would exempt more large thrifts from the large retail exam and more intermediate small thrifts from the new community development test. 3. Comments Opposed to Proposal The industry trade associations that opposed eliminating alternative weights and imposing the new community development test for intermediate small thrifts made several arguments:
(1)Uniformity is not necessary to ensure that savings associations meet the credit needs of their communities;
(2)OTS's current rule significantly reduces burden, which outweighs potential benefits, if any, of uniformity; and
(3)the extensive narratives in OTS's examination reports make savings associations' performance readily comparable to banks' even if the tests applied are different. These commenters advocated that the other federal banking agencies should adopt OTS's rule to create uniformity. With specific regard to alternative weights, they commented that it is necessary and appropriate for large savings association to have a flexible test given differences between the thrift charter and bank charters. This flexibility simply recognizes that thrifts have always been evaluated somewhat differently from banks under the OTS policy of granting savings associations with strong lending records at least a low satisfactory rating on the investment test even if they make few or no qualified investments. One trade association specifically criticized the new CD test for creating an additional layer of regulatory complexity. Another urged OTS to provide a transition period of at least one examination cycle for those intermediate small institutions that had reallocated their CRA activities relying on the ability to comply with the streamlined lending test. One trade association concluded, based on its analysis, that applying the small institution test to savings associations up to $1 billion in assets had not resulted in a reduction of their commitments to their communities. Another indicated, however, that if OTS changed its rule to realign with the other federal banking agencies, the change would not have a negative effect on the way savings associations are already meeting the credit needs of their communities. These commenters both supported indexing asset thresholds; one also supported the provision on discriminatory or other illegal credit practices. The thrifts that commented made similar arguments. One also expressed a specific concern about relying on the OTS policy of granting savings associations with strong lending records at least a low satisfactory rating on the investment test even if they make few or no qualified investments due to limits on savings associations' investment authority. This thrift suggested that unless the alternative weight option is retained in the rule, OTS might, at any time, discontinue the policy or begin requiring a savings association to make an individualized showing of how restrictions on investment authority have limited that particular thrift's investments. D. Today's Final Rule The comments largely supported the proposal. Having carefully considered the comments, OTS is revising its rule for the same reasons it issued the proposal as discussed in part B of this SUPPLEMENTARY INFORMATION . OTS believes the revisions will promote consistency and help facilitate objective evaluations of CRA performance across the banking and thrift industries. Consistent standards will allow the public to make more effective comparisons of bank and thrift CRA performance. Additionally, the revisions reinforce principal objectives of the CRA. OTS would like to address some of the specific comments. While some commenters submitted information to support claims that alternative weights and the extension of the streamlined small institution test to institutions with assets of less than $1 billion had a negative impact on community development, others submitted information to support claims that changes did not have a negative impact. OTS believes the experience with these innovations was too brief to be conclusive either way. However, the revisions reinforce CRA objectives consistent with long standing performance of savings associations in providing access to credit, making investments, and providing services that support the communities they serve. Regarding the elimination of alternative weights, OTS wishes to reassure the commenter who expressed concern about relying on the OTS policy of granting savings associations with strong lending records at least a low satisfactory rating on the investment test even if they make few or no qualified investments due to limits on savings associations' investment authority. OTS notes—as discussed in detail in part B.1. of this SUPPLEMENTARY INFORMATION —that this policy is long-standing. Further, it is a direct outgrowth of section 563e.21(b) of the CRA rule, which addresses the performance context. As discussed in part B.2. of this SUPPLEMENTARY INFORMATION , OTS will apply a similar approach under the new community development test for intermediate small savings associations. OTS highlights that in one small respect, today's final rule departs slightly from the proposal. That departure concerns indexing asset thresholds. As proposed, the regulation provides that OTS will publish annual adjustments to these dollar figures based on the year-to-year change in the average of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPIW), not seasonally adjusted, for each twelve-month period ending in November, with rounding to the nearest million. 12 CFR 563e.12(u)(2). Since OTS's proposal, however, the OCC, Board, and FDIC updated their regulations to make this annual adjustment. 71 FR 78335 (December 29, 2006). The preamble to their joint rule noted that during the one-year period ending November 2006, the CPIW increased by 3.32 percent. As a result, they revised their rule to provide that beginning January 1, 2007, banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.033 billion are “small banks.” Small banks with assets of at least $258 million as of December 31 of both of the prior two calendar years and less than $1.033 billion as of December 31 of either of the prior two calendar years are “intermediate small banks.” To enable OTS to adjust the asset thresholds applicable for savings associations consistently with the other federal banking agencies, the rule text provides that savings associations that, as of December 31 of either of the prior two calendar years, had assets of less than $1.033 billion are “small savings associations.” Small savings associations with assets of at least $258 million as of December 31 of both of the prior two calendar years and less than $1.033 billion as of December 31 of either of the prior two calendar years are “intermediate small savings associations.” These inflation-adjusted asset thresholds will take effect once today's final rule takes effect on July 1, 2007. 2 2 Until July 1, 2007, the small savings association asset threshold OTS applies remains at $1 billion. E. Effective Date Today's final rule takes effect July 1, 2007. The rule changes will apply to examinations that begin in the third quarter of 2007. However, OTS recognizes that some savings associations may have adjusted their CRA-related programs in reliance on the availability of the alternative weight option under the large retail savings association test and on the availability of the streamlined small institution test for institutions with up to $1 billion in assets (inflation adjusted). Rather than providing a long delay in effective date as a few commenters requested, OTS will provide relief in another way. OTS examiners will take the elimination of the alternative weight option under the large retail savings association test and the elimination of the streamlined small institution test for institutions with $250 million to $1 billion in assets (inflation adjusted) into consideration as part of the performance context when conducting examinations of savings associations affected, since these regulatory changes could have impacted their operations. Section 563e.21(b) of the CRA rule provides that OTS applies the CRA tests in the context of various factors including “(7) Any other information deemed relevant by the OTS.” OTS deems these two changes to its CRA relevant for performance context purposes. The period during which OTS's rules allow for alternative weights under the large retail savings association test started April 1, 2005 and ends July 1, 2007. Accordingly, for CRA examinations under the large retail savings associations test that encompass all or part of this period, OTS examiners will take into account in performance context that a reduction in investment or service performance during this period could be attributable in part to reliance on the alternative weight option. The period during which OTS's rules applied the small savings association test to savings associations between $250 million and $1 billion in assets started October 1, 2004 and ends July 1, 2007. For CRA examinations of intermediate small savings associations under the new community development test that encompass all or part of this period, OTS examiners will take into account in performance context that a reduction in investment or service performance during this period could be attributable in part to reliance on the availability of the small savings association test. OTS further notes that under section 563e.21(a)(3), savings associations that prefer to be evaluated under the large retail savings association test have that option, but only if they collect and report data required under section 563e.42. The large retail savings association test applied to savings associations with between $250 million and $1 billion in assets before October 1, 2004. Thus, evaluation under the large retail savings association test would be an option available to intermediate small savings associations if they collected and reported data for each year covered by the performance evaluation. Regulatory Analysis Paperwork Reduction Act In accordance with the requirements of the Paperwork Reduction Act of 1995, OTS may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget
(OMB)control number. This collection of information is currently approved under OMB Control Number 1550-0012. This final rule would not change the collection of information. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS certifies that the final rule will not have a significant economic impact on a substantial number of small entities. None of the provisions impose any additional paperwork or regulatory reporting requirements. Eliminating the option of alternative weights only affects savings associations with assets of $1 billion or more. Imposing a community development test for intermediate small savings associations only affects savings associations with assets of $250 million up to $1 billion. Likewise, indexing the asset thresholds only affect savings associations with around $250 million in assets or more. In contrast, the Small Business Administration
(SBA)has defined “small entities” for banking purposes as those with assets of $165 million or less. 13 CFR 121.201. Incorporating language into the rule regarding discriminatory or illegal credit practices has no impact whatsoever. It does not change the laws or regulations applicable to savings associations that prohibit discriminatory or illegal conduct. It simply affects the way OTS considers noncompliance with these laws and regulations as part of the CRA performance evaluation. Executive Order 12866 Determination OTS has determined that this proposal is not a significant regulatory action under Executive Order 12866. Unfunded Mandates Reform Act of 1995 Determination Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (Unfunded Mandates Act) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. OTS has determined that this rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more. Accordingly, OTS has not prepared a budgetary impact statement nor specifically addressed the regulatory alternatives considered. List of Subjects in 12 CFR Part 563e Community development, Credit, Investments, Reporting and recordkeeping requirements, Savings associations. Office of Thrift Supervision 12 CFR Chapter V For the reasons outlined in the preamble, the Office of Thrift Supervision amends part 563e of chapter V of title 12 of the Code of Federal Regulations as set forth below: PART 563e—COMMUNITY REINVESTMENT 1. The authority citation for part 563e continues to read as follows: Authority: 12 U.S.C. 1462a, 1463, 1464, 1467a, 1814, 1816, 1828(c), and 2901 through 2907. 2. In § 563e.12 revise paragraph (u), to read as follows: § 563e.12 Definitions.
(u)*Small savings associations* —(1) *Definition* . *Small savings association* means a savings association that, as of December 31 of either of the prior two calendar years, had assets of less than $1.033 billion. *Intermediate small savings association* means a small savings association with assets of at least $258 million as of December 31 of both of the prior two calendar years and less than $1.033 billion as of December 31 of either of the prior two calendar years.
(2)*Adjustment* . The dollar figures in paragraph (u)(1) of this section shall be adjusted annually and published by the OTS, based on the year-to-year change in the average of the Consumer Price Index for Urban Wage Earners and Clerical Workers, not seasonally adjusted, for each twelve-month period ending in November, with rounding to the nearest million. § 563e.21 [Amended] 3. Amend § 563e.21(a)(1) by removing “, and to the extent consistent with § 563e.28(d)”. 4. Revise § 563e.26 to read as follows: § 563e.26 Small savings association performance standards.
(a)*Performance criteria* —(1) *Small savings associations with assets of less than $250 million* . The OTS evaluates the record of a small savings association that is not, or that was not during the prior calendar year, an intermediate small savings association, of helping to meet the credit needs of its assessment area(s) pursuant to the criteria set forth in paragraph
(b)of this section.
(2)*Intermediate small savings associations* . The OTS evaluates the record of a small savings association that is, or that was during the prior calendar year, an intermediate small savings association, of helping to meet the credit needs of its assessment area(s) pursuant to the criteria set forth in paragraphs
(b)and
(c)of this section.
(b)*Lending test* . A small savings association's lending performance is evaluated pursuant to the following criteria:
(1)The savings association's loan-to-deposit ratio, adjusted for seasonal variation, and, as appropriate, other lending-related activities, such as loan originations for sale to the secondary markets, community development loans, or qualified investments;
(2)The percentage of loans and, as appropriate, other lending-related activities located in the savings association's assessment area(s);
(3)The savings association's record of lending to and, as appropriate, engaging in other lending-related activities for borrowers of different income levels and businesses and farms of different sizes;
(4)The geographic distribution of the savings association's loans; and
(5)The savings association's record of taking action, if warranted, in response to written complaints about its performance in helping to meet credit needs in its assessment area(s).
(c)*Community development test* . An intermediate small savings association's community development performance also is evaluated pursuant to the following criteria:
(1)The number and amount of community development loans;
(2)The number and amount of qualified investments;
(3)The extent to which the savings association provides community development services; and
(4)The savings association's responsiveness through such activities to community development lending, investment, and services needs.
(d)*Small savings association performance rating* . The OTS rates the performance of a savings association evaluated under this section as provided in Appendix A of this part. 5. Amend § 563e.28 by: a. Removing “paragraphs (b), (c), and
(d)of this section” in paragraph
(a)and by adding in lieu thereof “paragraphs
(b)and
(c)of this section”; b. Removing paragraph (d); c. Revising paragraph
(c)to read as follows: § 563e.28 Assigned ratings.
(c)*Effect of evidence of discriminatory or other illegal credit practices* .
(1)The OTS's evaluation of a savings association's CRA performance is adversely affected by evidence of discriminatory or other illegal credit practices in any geography by the savings association or any affiliate whose loans have been considered as part of the savings association's lending performance. In connection with any type of lending activity described in § 563e.22(a), evidence of discriminatory or other credit practices that violate an applicable law, rule, or regulation includes, but is not limited to:
(i)Discrimination against applicants on a prohibited basis in violation, for example, of the Equal Credit Opportunity Act or the Fair Housing Act;
(ii)Violations of the Home Ownership and Equity Protection Act;
(iii)Violations of section 5 of the Federal Trade Commission Act;
(iv)Violations of section 8 of the Real Estate Settlement Procedures Act; and
(v)Violations of the Truth in Lending Act provisions regarding a consumer's right of rescission.
(2)In determining the effect of evidence of practices described in paragraph (c)(1) of this section on the savings association's assigned rating, the OTS considers the nature, extent, and strength of the evidence of the practices; the policies and procedures that the savings association (or affiliate, as applicable) has in place to prevent the practices; any corrective action that the savings association (or affiliate, as applicable) has taken or has committed to take, including voluntary corrective action resulting from self-assessment; and any other relevant information. 6. In Appendix A to part 563e, revise paragraph
(d)to read as follows: Appendix A to Part 563e—Ratings
(d)*Savings associations evaluated under the small savings association performance standards* .—(1) *Lending test ratings* .
(i)*Eligibility for a satisfactory lending test rating* . The OTS rates a small savings association's lending performance “satisfactory” if, in general, the savings association demonstrates:
(A)A reasonable loan-to-deposit ratio (considering seasonal variations) given the savings association's size, financial condition, the credit needs of its assessment area(s), and taking into account, as appropriate, other lending-related activities such as loan originations for sale to the secondary markets and community development loans and qualified investments;
(B)A majority of its loans and, as appropriate, other lending-related activities, are in its assessment area;
(C)A distribution of loans to and, as appropriate, other lending-related activities for individuals of different income levels (including low- and moderate-income individuals) and businesses and farms of different sizes that is reasonable given the demographics of the savings association's assessment area(s);
(D)A record of taking appropriate action, when warranted, in response to written complaints, if any, about the savings association's performance in helping to meet the credit needs of its assessment area(s); and
(E)A reasonable geographic distribution of loans given the savings association's assessment area(s).
(ii)*Eligibility for an “outstanding” lending test rating.* A small savings association that meets each of the standards for a “satisfactory” rating under this paragraph and exceeds some or all of those standards may warrant consideration for a lending test rating of “outstanding.”
(iii)*Needs to improve or substantial noncompliance ratings.* A small savings association may also receive a lending test rating of “needs to improve” or “substantial noncompliance” depending on the degree to which its performance has failed to meet the standard for a “satisfactory” rating.
(2)*Community development test ratings for intermediate small savings associations.* —(i) *Eligibility for a satisfactory community development test rating.* The OTS rates an intermediate small savings association's community development performance “satisfactory” if the savings association demonstrates adequate responsiveness to the community development needs of its assessment area(s) through community development loans, qualified investments, and community development services. The adequacy of the savings association's response will depend on its capacity for such community development activities, its assessment area's need for such community development activities, and the availability of such opportunities for community development in the savings association's assessment area(s).
(ii)*Eligibility for an outstanding community development test rating.* The OTS rates an intermediate small savings association's community development performance “outstanding” if the savings association demonstrates excellent responsiveness to community development needs in its assessment area(s) through community development loans, qualified investments, and community development services, as appropriate, considering the savings association's capacity and the need and availability of such opportunities for community development in the savings association's assessment area(s).
(iii)*Needs to improve or substantial noncompliance ratings.* An intermediate small savings association may also receive a community development test rating of “needs to improve” or “substantial noncompliance” depending on the degree to which its performance has failed to meet the standards for a “satisfactory” rating.
(3)*Overall rating.* —(i) *Eligibility for a satisfactory overall rating.* No intermediate small savings association may receive an assigned overall rating of “satisfactory” unless it receives a rating of at least “satisfactory” on both the lending test and the community development test.
(ii)*Eligibility for an outstanding overall rating.*
(A)An intermediate small savings association that receives an “outstanding” rating on one test and at least “satisfactory” on the other test may receive an assigned overall rating of “outstanding.”
(B)A small savings association that is not an intermediate small savings association that meets each of the standards for a “satisfactory” rating under the lending test and exceeds some or all of those standards may warrant consideration for an overall rating of “outstanding.” In assessing whether a bank's performance is “outstanding,” the OTS considers the extent to which the savings association exceeds each of the performance standards for a “satisfactory” rating and its performance in making qualified investments and its performance in providing branches and other services and delivery systems that enhance credit availability in its assessment area(s).
(iii)*Needs to improve or substantial noncompliance overall ratings.* A small savings association may also receive a rating of “needs to improve” or “substantial noncompliance” depending on the degree to which its performance has failed to meet the standards for a “satisfactory” rating. Dated: March 16, 2007. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. E7-5188 Filed 3-21-07; 8:45 am] BILLING CODE 6720-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE263; Special Conditions No. 23-203-SC] Special Conditions: Aviation Technology Group, Incorporated, Javelin Model No. 100; Firewalls for Fuselage Mounted Engines and Fire Extinguishing for Aft Fuselage Mounted Engines AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. SUMMARY: These special conditions are issued for the Aviation Technology Group, Incorporated, Javelin Model No. 100 airplane. This airplane will have novel or unusual design features associated with aft mounted engine fire protection. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: *Effective Date:* March 12, 2007. FOR FURTHER INFORMATION CONTACT: Leslie B. Taylor, Regulations & Policy Branch, ACE-111, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Kansas City, Missouri 64106; telephone
(816)329-4134; facsimile
(816)329-4090, e-mail at *leslie.b.taylor@faa.gov* . SUPPLEMENTARY INFORMATION: Background On February 25, 2005, Aviation Technology Group, Incorporated applied for a type certificate for their new Javelin Model No. 100. The Javelin Model No. 100 is a two-place acrobatic airplane with two fuselage mounted turbofan engines. Part 23 historically addressed fire protection on multiengine airplanes based on the assumption that the engines are sufficiently separated to essentially eliminate the possibility of an engine fire spreading to another engine. On traditional multiengine airplanes, this has been achieved by locating engines on the wings separated by the fuselage. This configuration ensures that an engine fire on one side does not migrate to the opposite engine. This configuration also protects the opposite engine from heat radiating from the engine fire. Prevention, identification, and containment are traditional means of fire protection. Prevention has been provided through minimizing the potential for ignition of flammable fluids and vapors. Identification has been provided by locating engines within the pilots' primary field of view and/or with the incorporation of fire detection systems. This has provided both rapid detection of a fire and confirmation when it was extinguished. Containment has been provided through the isolation of designated fire zones through flammable fluid shutoff valves and firewalls. This philosophy also ensures that components of the engine control system will function effectively to permit a safe shutdown of an engine. However, containment has only been demonstrated for 15 minutes. If a fire occurs in traditional part 23 airplanes, the appropriate corrective action is to land as soon as possible. For a small, simple airplane originally envisioned by part 23, it is possible to descend and land within 15 minutes. Thus, the occupants can safely exit the airplane before the firewall is breached. These simple airplanes normally have the engine located away from critical flight control systems and primary structure. This has ensured that, throughout a fire event, a pilot can continue safe flight, and it has made the prediction of fire effects relatively easy. Title 14 CFR part 23, did not envision the type of configuration of the Javelin Model No. 100 airplane. Type Certification Basis If the Administrator finds that the applicable airworthiness regulations in 14 CFR part 23 do not contain adequate or appropriate safety standards for the Javelin Model No. 100 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Javelin Model No. 100 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The Javelin Model No. 100 will incorporate the following novel or unusual design features: The Javelin Model No. 100 incorporates two turbofan engines located side-by-side in compartments in the aft fuselage. Discussion of Comments Notice of proposed special conditions No. 23-07-01-SC for the Aviation Technology Group, Incorporated, Javelin Model No. 100 airplanes was published on January 8, 2007 (72 FR 660). One comment was received. It agreed with the proposed special conditions. No change was requested. Applicability As discussed above, these special conditions are applicable to the Javelin Model No. 100. Should Aviation Technology Group, Incorporated, apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Aviation Technology Group, Incorporated, Javelin Model No. 100 airplanes. *Title:* Firewalls for Fuselage Mounted Engines and Fire Extinguishing for Aft Fuselage Mounted Engines. Fire Isolation and Extinguishing The fire protection system of the airplane must include features to isolate each fire zone from any other zone and the airplane to maintain isolation of the engines during a fire. Therefore, these special conditions mandate that the firewall required by § 23.1191 be extended to provide firewall isolation between either engine. These special conditions require that heat radiating from a fire originating in any fire zone must not affect components, airframe structure, systems, or flight controls in adjacent compartments in a way that endangers the airplane. Each fire zone should be ventilated to prevent the accumulation of flammable vapors. It must also be designed such that it will not allow entry of flammable fluids, vapors, or flames from other fire zones. It must be designed such that it does not create an additional fire hazard from the discharge of vapors or fluids. 1. SC 23.1195—Add the requirements of § 23.1195 while deleting “For commuter category,” adding the requirement to “minimize the probability of re-ignition,” and deleting the statement “An individual ‘one-shot' system may be used.” 23.1195, Fire Extinguishing Systems
(a)Fire extinguishing systems must be installed and compliance shown with the following:
(1)Except for combustor, turbine, and tailpipe sections of turbine-engine installations that contain lines or components carrying flammable fluids or gases for which a fire originating in these sections is shown to be controllable, a fire extinguisher system must serve each engine compartment;
(2)The fire extinguishing system, the quantity of extinguishing agent, the rate of discharge, and the discharge distribution must be adequate to extinguish fires and minimize the probability of re-ignition;
(3)The fire extinguishing system for a nacelle must be able to simultaneously protect each compartment of the nacelle for which protection is provided.
(b)If an auxiliary power unit is installed in any airplane certificated to this part, that auxiliary power unit compartment must be served by a fire extinguishing system meeting the requirements of paragraph (a)(2) of this section. 2. SC 23.1197—Add the requirements of § 23.1197 while deleting “For commuter category airplanes.” 23.1197, Fire Extinguishing Agents The following applies:
(a)Fire extinguishing agents must—
(1)Be capable of extinguishing flames emanating from any burning fluids or other combustible materials in the area protected by the fire extinguishing system; and
(2)Have thermal stability over the temperature range likely to be experienced in the compartment in which they are stored.
(b)If any toxic extinguishing agent is used, provisions must be made to prevent harmful concentrations of fluid or fluid vapors (from leakage during normal operation of the airplane or as a result of discharging the fire extinguisher on the ground or in flight) from entering any personnel compartment, even though a defect may exist in the extinguishing system. This must be shown by test except for built-in carbon dioxide fuselage compartment fire extinguishing systems for which—
(1)Five pounds or less of carbon dioxide will be discharged under established fire control procedures into any fuselage compartment; or
(2)Protective breathing equipment is available for each flight crewmember on flight deck duty. 3. SC 23.1199—Add the requirements of § 23.1199 while deleting “For commuter category airplanes.” 23.1199, Extinguishing Agent Containers The following applies:
(a)Each extinguishing agent container must have a pressure relief to prevent bursting of the container by excessive internal pressures.
(b)The discharge end of each discharge line from a pressure relief connection must be located so that discharge of the fire-extinguishing agent would not damage the airplane. The line must also be located or protected to prevent clogging caused by ice or other foreign matter.
(c)A means must be provided for each fire extinguishing agent container to indicate that the container has discharged or that the charging pressure is below the established minimum necessary for proper functioning.
(d)The temperature of each container must be maintained, under intended operating conditions, to prevent the pressure in the container from—
(1)Falling below that necessary to provide an adequate rate of discharge; or
(2)Rising high enough to cause premature discharge.
(e)If a pyrotechnic capsule is used to discharge the fire extinguishing agent, each container must be installed so that temperature conditions will not cause hazardous deterioration of the pyrotechnic capsule. 4. SC 23.1201—Add the requirements of § 23.1201 while deleting “For commuter category airplanes.” 23.1201, Fire Extinguishing System Materials The following apply:
(a)No material in any fire extinguishing system may react chemically with any extinguishing agent so as to create a hazard.
(b)Each system component in an engine compartment must be fireproof. Issued in Kansas City, Missouri, on March 12, 2007. James E. Jackson, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-5183 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-25008; Airspace Docket No. 06-ACE-6] RIN 2120-AA66 Modification of Class E Airspace; Kaiser/Lake, Ozark, MO AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This technical amendment corrects a final rule published in the **Federal Register** on August 8, 2006 (71 FR 44885), Docket No. FAA-2006-25008, Airspace Docket No. 06-ACE-6. In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. Also, the corresponding dates that refer to the Order should state “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * * September 1, 2005, and effective September 16, 2005”. This technical amendment corrects those errors. DATES: *Effective Date:* 0901 UTC, March 22, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On August 8, 2006, a final rule was published in the **Federal Register** , Docket No. FAA-2006-25008, Airspace Docket No. 06-ACE-6 that amended Title 14 Code of Federal Regulations part 71 by modifying the Class E airspace area at Kaiser/Lake Ozark, MO (71 FR 44885). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. In addition, the corresponding dates that refer to the Order are incorrect. Instead of “* * * September 1, 2005, and effective September 16, 2005”, the dates should read “* * * September 1, 2006, and effective September 15, 2006 * * *”. Amendment to Final Rule Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for Docket No. FAA-2006-25008, Airspace Docket No. 06-ACE-6, as published in the **Federal Register** on August 8, 2006 (71 FR 44885), is corrected as follows: On page 44885, column 3, lines 16, 18 and 19, and page 44886, column 2, lines 17, 18 and 19, amend the language to read: § 71.1 [Amended] • “* * * FAA Order 7400.9P” instead of “FAA Order 7400.9N * * *”. • “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * * September 1, 2005, and effective September 16, 2005 * * *”. Issued in Washington, DC, March 14, 2007. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E7-5186 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23902; Airspace Docket No. 06-AGL-01] RIN 2120-AA66 Modification of Class E Airspace; Fremont, MI AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This technical amendment corrects a final rule published in the **Federal Register** on July 18, 2006 (71 FR 40652), Docket No. FAA-2006-23902, Airspace Docket No. 06-AGL-01. In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. Also, the corresponding dates that refer to the Order should state “* * * September 1, 2006, and effective September 15, 2006 * * *”, instead of “* * * September 1, 2005, and effective September 16, 2005”. This technical amendment corrects those errors. DATES: *Effective Date:* 0901 UTC, March 22, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On July 18, 2006, a final rule was published in the **Federal Register** , Docket No. FAA-2006-23902, Airspace Docket No. 06-AGL-01, that amended Title 14 Code of Federal Regulations part 71 by modifying Class E Airspace; Fremont, MI (71 FR 40652). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. In addition, the corresponding dates that refer to the Order are incorrect. Instead of “* * * September 1, 2005, and effective September 16, 2005”, the dates should read “* * * September 1, 2006, and effective September 15, 2006 * * *”. Amendment to Final Rule Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for Docket No. FAA-2006-23902, Airspace Docket No. 06-AGL-01, as published in the **Federal Register** on July 18, 2006 (71 FR 40652), is corrected as follows: On page 40653, column 1, lines 38 and 39, and column 2, lines 34, 36 and 37, amend the language to read: § 71.1 [Amended] “* * * FAA Order 7400.9P” instead of “FAA Order 7400.9N * * *”. “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * *September 1, 2005, and effective September 16, 2005 * * *”. Issued in Washington, DC, March 14, 2007. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E7-5182 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23709; Airspace Docket No. 06-AAL-02] RIN 2120-AA66 Establishment of Class E Airspace; Willow, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This technical amendment corrects a final rule published in the **Federal Register** on August 1, 2006 (71 FR 43356), Docket No. FAA-2006-23709, Airspace Docket No. 06-AAL-02. In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. Also, the corresponding dates that refer to the Order should state “* * * September 1, 2006, and effective September 15, 2006 * * *”, instead of “* * * September 1, 2005, and effective September 15, 2005”. This technical amendment corrects those errors. DATES: *Effective Date:* 0901 UTC, March 22, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On August 1, 2006, a final rule was published in the **Federal Register** , Docket No. FAA-2006-23709, Airspace Docket No. 06-AAL-02, that amended Title 14 Code of Federal Regulations part 71 by establishing Class E Airspace; Willow, AK (71 FR 43356). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. In addition, the corresponding dates that refer to the Order are incorrect. Instead of “* * * September 1, 2005, and effective September 15, 2005”, the dates should read “* * * September 1, 2006, and effective September 15, 2006 * * *”. Amendment to Final Rule Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for Docket No. FAA-2006-23709, Airspace Docket No. 06-AAL-02, as published in the **Federal Register** on August 1, 2006 (71 FR 43356), is corrected as follows: On page 43357, column 1, lines 11, 12, 13 and 14, and column 2, lines 36, 38 and 39, amend the language to read: § 71.1 [Amended] “* * * FAA Order 7400.9P” instead of “FAA Order 7400.9N * * *”. “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * * September 1, 2005, and effective September 15, 2005 * * *”. Issued in Washington, DC, March 14, 2007. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E7-5180 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-24869; Airspace Docket No. 06-ACE-4] RIN 2120-AA66 Modification of Class E Airspace; Wellington Municipal Airport, KS AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This technical amendment corrects a final rule published in the **Federal Register** on June 5, 2006 (71 FR 32271), Docket No. FAA-2006-24869, Airspace Docket No. 06-ACE-4. In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. Also, the corresponding dates that refer to the Order should state “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * * September 1, 2005, and effective September 16, 2005”. This technical amendment corrects those errors. DATES: *Effective Date:* 0901 UTC, March 22, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On June 5, 2006, a final rule was published in the **Federal Register** , Docket No. FAA-2006-24869, Airspace Docket No. 06-ACE-4, that amended Title 14 Code of Federal Regulations part 71 by modifying the Class E Airspace area at Wellington Municipal Airport, KS (71 FR 32271). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. In addition, the corresponding dates that refer to the Order are incorrect. Instead of “* * * September 1, 2005, and effective September 16, 2005”, the dates should read “* * * September 1, 2006, and effective September 15, 2006 * * *”. Amendment to Final Rule Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for Docket No. FAA-2006-24869, Airspace Docket No. 06-ACE-4, as published in the **Federal Register** on June 5, 2006 (71 FR 32271), is corrected as follows: On page 32271, column 3, lines 34, 36 and 37, on page 32272, column 2, lines 32, 33, and 34, amend the language to read: § 71.1 [Amended] “* * * FAA Order 7400.9P” instead of “FAA Order 7400.9N * * *”. “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * * September 1, 2005, and effective September 16, 2005 * * *”. Issued in Washington, DC, March 14, 2007. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E7-5185 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-23872; Airspace Docket No. 06-AAL-9] RIN 2120-AA66 Establishment of Offshore Airspace Area 1485L and Revision of Control 1485H; Barrow, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This technical amendment corrects a final rule published in the **Federal Register** on June 30, 2006 (71 FR 37492), Docket No. FAA-2006-23872, Airspace Docket No. 06-AAL-9. In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9O. The correct reference is FAA Order 7400.9P. This technical amendment corrects those errors. DATES: *Effective Date:* 0901 UTC, March 22, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On June 30, 2006, a final rule was published in the **Federal Register** , Docket No. FAA-2006-23872, Airspace Docket No. 06-AAL-9 that amended Title 14 Code of Federal Regulations part 71 by establishing and revising offshore airspace; Barrow, AK (71 FR 37492). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9O. The correct reference is FAA Order 7400.9P. Amendment to Final Rule Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for Airspace Docket No. FAA-2006-23872, Airspace Docket No. 06-AAL-9, as published in the **Federal Register** on June 30, 2006 (71 FR 37492), is corrected as follows: On page 37493, column 1, line 30, and column 3, line 41, amend the language to read: § 71.1 [Amended] “FAA Order 7400.9P” instead of “FAA Order 7400.9O”. Issued in Washington, DC, March 14, 2007. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E7-5181 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 740, 748 and 774 [Docket No. 070308049-7056-01] RIN 0694-AD98 Corrections to Rule that Implemented the New Formula for Calculating Computer Performance: Adjusted Peak Performance
(APP)in Weighted TeraFLOPS AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule; correction. SUMMARY: This rule corrects errors that were published on April 24, 2006, in the rule that implemented the new formula for calculating computer performance in Weighted TeraFLOPS (71 FR 20876). These errors include references to Missile Technology controls that were removed by the April 24, 2006 rule, as well as errors related to scope of controls and license exceptions described in certain Export Control Classification Numbers. DATES: *Effective Dates:* This rule is effective: March 22, 2007. FOR FURTHER INFORMATION CONTACT: For questions of a technical nature contact: Joseph Young, Office of National Security and Technology Transfer Controls at 202-482-4197 or e-mail: *jyoung@bis.doc.gov* . For questions of a non-technical nature contact: Sharron Cook, Office of Exporter Services at 202-482-2440 or e-mail: *scook@bis.doc.gov.* SUPPLEMENTARY INFORMATION Background A rule published on April 24, 2006, added to the Export Administration Regulations
(EAR)provisions that implemented the new formula for calculating computer performance in Weighted TeraFLOPS (WT). That rule included the removal of missile technology
(MT)controls on certain commodities in Export Control Classification Number
(ECCN)4A003. Since publication, however, it was observed that some references to MT controls were inadvertently left in Note 1 of the License Requirement section and in the License Exception LVS eligibility section. This rule removes references to MT controls from 4A003. In addition, because of the removal of MT controls from ECCNs 4A003 and 4D001 in the April 24, 2006 rule, the sentence in section 740.7 of the EAR (License Exception APP) that states “Technology for computers controlled for missile technology
(MT)reasons are not eligible for License Exception APP” is no longer necessary and is therefore removed by this rule. This rule corrects and simplifies the headings of ECCNs 4E001 and 4D001 by removing specific ECCN references and pointing to the List of Items Controlled section to determine the technology and software controls for these ECCNs. In addition, this rule revises the National Security control text by removing specific references to ECCNs and simplifying it to read “NS applies to entire entry.” This rule also corrects and simplifies the License Exception TSR eligibility text in the License Exception section of ECCN 4D001 to read “Yes, for `software' described in 4D001.b with an `Adjusted Peak Performance' (`APP') equal to or less than 0.1 WT.” A similar revision is made to correct and simplify the License Exception TSR eligibility text in ECCN 4E001. This rule also removes a duplicate paragraph in paragraph
(c)of Supplement No. 2 to part 748, which was unintentionally left in this paragraph. Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 3, 2006, 71 FR 44551 (August 7, 2006), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. Rulemaking Requirements 1. This final rule has been determined to be not significant for purposes of E.O. 12866. 2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget
(OMB)Control Number. This rule involves two collections of information subject to the PRA. One of the collections has been approved by OMB under control number 0694-0088, “Multi-Purpose Application,” and carries a burden hour estimate of 58 minutes for a manual or electronic submission. The other of the collections has been approved by OMB under control number 0694-0106, “ Reporting and Recordkeeping Requirements under the Wassenaar Arrangement,” and carries a burden hour estimate of 21 minutes for a manual or electronic submission. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to OMB Desk Officer, New Executive Office Building, Washington, DC 20503; and to the Office of Administration, Bureau of Industry and Security, Department of Commerce, 14th and Pennsylvania Avenue, NW., Room 6883, Washington, DC 20230. 3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132. 4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Sharron Cook, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044, or to *scook@bis.doc.gov* . List of Subjects 15 CFR Parts 740 and 748 Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 774 Exports, Reporting and recordkeeping requirements. Accordingly, parts 740, 748 and 774 of the Export Administration Regulations (15 CFR parts 730-799) are amended as follows: PART 740—[AMENDED] 1. The authority citation for 15 CFR part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; Sec. 901-911, Pub. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006). § 740.7 [Amended] 2. Section 740.7 is amended by removing the last sentence in paragraph (a)(2). PART 748—[AMENDED] 3. The authority citation for 15 CFR part 748 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006). Supplement No. 2 to Part 748 [Amended] 4. Supplement No. 2 to part 748 is amended by removing the undesignated paragraph following the introductory text of paragraph (c). PART 774—[AMENDED] 5. The authority citation for 15 CFR part 774 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 *et seq.* ; 22 U.S.C. 287c, 22 U.S.C. 3201 *et seq.* , 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006). Supplement No. 1 to Part 774 [Amended] 6. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4—Computers, Export Control Classification Number
(ECCN)4A003 is amended by revising the License Requirements section and the License Exceptions section, to read as follows: 4A003 “Digital computers”, “electronic assemblies”, and related equipment therefor, as follows, and specially designed components therefor. License Requirements *Reason for Control:* NS, CC, AT, NP. Control(s) Country chart NS applies to 4A003.b and .c NS Column 1. NS applies to 4A003.a, .e, and .g NS Column 2. CC applies to “digital computers” for computerized finger-print equipment CC Column 1. AT applies to entire entry (refer to 4A994 for controls on “digital computers” with a APP $ 0.00001 but # to 0.75 WT) AT Column 1. NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies. Note 1: For all destinations, except those countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, no license is required
(NLR)for computers with an “Adjusted Peak Performance” (“APP”) not exceeding 0.75 Weighted TeraFLOPS
(WT)and for “electronic assemblies” described in 4A003.c that are not capable of exceeding an “Adjusted Peak Performance” (“APP”) exceeding 0.75 Weighted TeraFLOPS
(WT)in aggregation, except certain transfers as set forth in § 746.3 (Iraq). Note 2: Special Post Shipment Verification reporting and recordkeeping requirements for exports of computers to destinations in Computer Tier 3 may be found in § 743.2 of the EAR. License Exceptions LVS: $5000; N/A for 4A003.b and .c. GBS: Yes, for 4A003.e, and .g and specially designed components therefor, exported separately or as part of a system. APP: Yes, for computers controlled by 4A003.a or .b, and “electronic assemblies” controlled by 4A003.c, to the exclusion of other technical parameters, with the exception of 4A003.e (equipment performing analog-to-digital conversions exceeding the limits of 3A001.a.5.a). See § 740.7 of the EAR. CIV: Yes, for 4A003.e, and .g. 7. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4—Computers, Export Control Classification Number
(ECCN)4D001 is amended by revising the Heading, the License Requirements section, and the License Exceptions section, to read as follows: 4D001 Specified “software”, see List of Items Controlled. License Requirements *Reason for Control:* NS, CC, AT, NP. Control(s) Country chart NS applies to entire entry NS Column 1. CC applies to “software” for computerized finger-print equipment controlled by 4A003 for CC reasons CC Column 1. AT applies to entire entry AT Column 1. NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies. License Exceptions CIV: N/A TSR: Yes, for “software” described in 4D001.b with an “Adjusted Peak Performance” (“APP”) equal to or less than 0.1 WT. APP: Yes to specific countries (see § 740.7 of the EAR for eligibility criteria) 8. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4—Computers, Export Control Classification Number
(ECCN)4E001 is amended by revising the Heading, the License Requirements section, and the License Exceptions section, to read as follows: 4E001 Specified “technology”, see List of Items Controlled. License Requirements *Reason for Control:* NS, MT, CC, AT, NP. Control(s) Country chart NS applies to entire entry NS Column 1. MT applies to “technology” for items controlled by 4A001.a and 4A101 for MT reasons MT Column 1. CC applies to “technology” for computerized fingerprint equipment controlled by 4A003 for CC reasons CC Column 1. AT applies to entire entry AT Column 1. NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies. *License Requirement Notes:* See § 743.1 of the EAR for reporting requirements for exports under License Exceptions. License Exceptions CIV: N/A TSR: Yes, for “technology” described in 4E001.b with an “Adjusted Peak Performance” (“APP”) equal to or less than 0.1 WT. APP: Yes to specific countries (see § 740.7 of the EAR for eligibility criteria). Eileen M. Albanese, Director, Office of Exporter Services. [FR Doc. E7-5271 Filed 3-21-07; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 382 [Docket No. RM00-7-012] Revision of Annual Charges to Public Utilities (Westar Energy, Inc. and Kansas Gas and Electric Company) Issued March 15, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule; order on remand and announcement of policy. SUMMARY: In this order, the Federal Energy Regulatory Commission (Commission) addresses issues raised by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on remand in *Westar Energy Inc.,* Docket No. RM87-3-000. The Commission here affirms its regulation at 18 CFR 382.201 (2006), adopted in Order No. 641, allowing correction of transmission volumes, but in response to the remand allows Westar Energy, Inc. to submit corrected transmission volumes out-of-time. The Commission clarifies going forward that it will accept timely FERC Reporting Requirement No. 582 (FERC 582) corrections but will accept only those late-filed FERC 582 corrections that are discovered through a Commission-conducted audit and that correct previously under-reported transmission volumes. When a public utility underreports, it is assessed comparatively smaller annual charges, and other public utilities are assessed relatively larger annual charges thereby subsidizing those utilities who underreport. DATES: *Effective Date:* This order on remand is effective March 15, 2007. FOR FURTHER INFORMATION CONTACT: Jennifer Rinker, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6563. SUPPLEMENTARY INFORMATION: *Before Commissioners:* Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Order on Remand and Announcing Policy on Submission of Corrected Electric Annual Charge-Related Data 1. This order addresses issues raised by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on remand. 1 The Commission here affirms its regulation allowing correction of transmission volumes, 2 adopted in Order No. 641, 3 but in response to the remand allows Westar Energy, Inc. (Westar) to submit corrected transmission volumes out-of-time. The Commission clarifies going forward that it will accept timely FERC Reporting Requirement No. 582 (FERC 582) corrections but will accept only those late-filed FERC 582 corrections that are discovered through a Commission-conducted audit and that correct previously under-reported transmission volumes. 4 1 *Westar Energy Inc.,* Docket No. RM87-3-000 (Apr. 8, 2004) (unpublished letter order), *reh'g denied sub nom. Revision of Annual Charges to Public Utilities (Westar Energy, Inc. and Kansas Gas and Electric Company),* 111 FERC ¶ 61,086 (2005), *remanded sub nom. Westar Energy, Inc.* v. *FERC,* 473 F.3d 1239 (D.C. Cir. 2007). 2 18 CFR 382.201 (2006). 3 *Revision of Annual Charges to Public Utilities,* Order No. 641, FERC Stats. & Regs. ¶ 31,109 (2000), *reh'g denied,* Order No. 641-A, 94 FERC ¶ 61,290 (2001). 4 When a public utility underreports, it is assessed comparatively smaller annual charges, and other public utilities are assessed relatively larger annual charges. The effect is that the underreporting utility pays less than its fair share of the Commission's costs, and is effectively subsidized by other utilities who will pay more than their fair share of the Commission's costs. Background 2. As required by Section 3401 of the Omnibus Budget Reconciliation Act of 1986, 5 the Commission's regulations provide for the payment of annual charges by public utilities. 6 The Commission intends that its electric annual charges in any fiscal year will recover the Commission's estimated electric regulatory program costs (other than the costs of regulating Federal Power Marketing Agencies
(PMAs)and electric regulatory program costs recovered through electric filing fees) for that fiscal year. In the next fiscal year the Commission adjusts the annual charges up or down, as appropriate, both to eliminate any over-or under-recovery of the Commission's actual costs and to eliminate any over-or under-charge of any particular public utility. The Commission accomplishes this by recalculating the annual charges and carrying over any over-or under-charge from the prior year as a credit or debit on the next fiscal year's annual charges bill. 7 5 42 U.S.C. 7178 (2000). 6 18 CFR 382.201 (2006). 7 18 CFR 382.201 (2006); *see,* *e.g.* , Order No. 641, FERC Stats. & Regs. ¶ 31,109 at 31,841-42; *accord Annual Charges under the Omnibus Budget Reconciliation Act of 1986 (CNG Power Services),* 87 FERC ¶ 61,074 at 61,302
(1999)( *CNG* ); *Annual Charges Under the Omnibus Budget Reconciliation Act of 1986 (Phibro Inc.* ), 81 FERC ¶ 61,308 at 62,424-25 (1997). 3. In calculating annual charges, the Commission determines its total electric regulatory program costs and subtracts all PMA-related costs and electric filing fee collections to determine its collectible electric regulatory program costs. That amount is charged to public utilities that provide transmission service. Public utilities that provide transmission service and thus are subject to annual charges must submit FERC 582 to the Office of the Secretary by April 30 of each year, providing data for the previous calendar year. 8 The reports include their transmission of electric energy in interstate commerce, as measured by:
(1)Unbundled wholesale transmission;
(2)unbundled retail transmission; and
(3)bundled wholesale power sales which, by definition, include a transmission component, where the transmission component is not separately reported as unbundled transmission. 8 18 CFR 382.201 (2006). 4. Importantly, the Commission uses that data to allocate its collectible electric regulatory program costs among all public utilities that provide transmission service; changing the amount owed by one public utility has an effect on the amount owed by all of the others. The Commission issues bills for annual charges based on each public utility's transmission service (as reported in the FERC 582) as compared to the total of all public utilities' transmission service, and the bills must be paid within 45 days of the date on which the Commission issues the bills. 9 The regulations allow public utilities to make corrections to their previously filed FERC 582s, but they must do so within a specified time: 9 *See,* *e.g.* , Order No. 641, FERC Stats. & Regs. ¶ 31,109 at 31,848-20; Order No. 641-A, 94 FERC at 62,037. Corrections to the information reported on [FERC] 582, as of January 1, 2002, must be submitted under oath to the Office of the Secretary on or before the end of each calendar year in which the information was originally reported (i.e., on or before the last day of the year that the Commission is open to accept such filings). 10 10 18 CFR 382.201(c)(2) (2006). The Commission adjusts the annual charges in the following fiscal year (FY), using this corrected information, in order to eliminate any over or under recovery both of the Commission's actual costs and of the charges to each public utility. 11 11 *See* Order No. 641, FERC Stats & Regs. ¶ 31,109 at 31,857; *Revision of Annual Charges to Public Utilities (California Independent System Operator, Inc.* ), 101 FERC ¶ 61,043 at 61,163, *reh'g dismissed,* 101 FERC ¶ 61,326 at P 9
(2002)( *CAISO* ); *accord CNG,* 87 FERC at 61,303. Earlier Filings and Orders 5. On December 18, 2003, Westar submitted a corrected FERC 582 for both 2002 and 2003, correcting the data reported for the years 2001 and 2002, respectively. Westar explained that its internal review, prompted by a change in the Commission's reporting requirements, revealed that it had over-reported transmission in several particulars. Westar requested a waiver of the Commission's regulations, observing that the Commission had permitted another company, Kansas City Power and Light Company (KCPL), to file a correction for calendar year 2001 in 2003. 12 12 *Kansas City Power & Light,* Docket No. FA03-17-000 (August 14, 2003). 6. By letter order dated April 8, 2004, the Director of the Commission's Division of Financial Services, Office of the Executive Director, accepted Westar's corrections for FY 2003 (reporting corrected calendar year 2002 transmission data), but rejected Westar's proposed corrections for FY 2002 (reporting corrected calendar year 2001 transmission data) on the ground that it was untimely under section 382.201(c)(2) of the Commission's regulations. On May 7, 2004, Westar sought rehearing. 7. The Commission subsequently denied rehearing for four reasons: *first,* the Commission's regulations expressly provided that corrections be made by the end of the calendar year in which the information was originally filed; *second,* the broader interest in preserving the finality of annual charges weighed against Westar's individual interest in allowing an untimely correction; *third,* the Commission had offered no assurances that it would correct erroneously filed information beyond the deadline for filing corrected information expressly spelled out in the regulations; and *fourth,* Westar and KCPL were not similarly situated because the Commission itself caused KCPL's late filing and it would, therefore, have been inequitable to reject KCPL's out-of-time corrections to the detriment of the company. 13 13 111 FERC ¶ 61,086 at P 10-12. 8. Westar filed a petition for review with the D.C. Circuit, and on January 16, 2007, the D.C. Circuit vacated and remanded the Commission's not allowing Westar's corrected FERC 582 for FY 2002, finding the Commission's order provided no basis “in fact or in logic for the Commission's refusal to treat Westar as it had treated KCPL.” 14 14 473 F.3d. at 1243. Discussion 9. In light of the D.C. Circuit's finding, and to bring this matter to an expeditious conclusion, the Commission will allow Westar to submit the corrected FY 2002 transmission volumes that the Commission had previously rejected because they had been filed out-of-time. 10. The Commission does, however, reiterate its continued commitment to the policy reflected in part 382 of the Commission's regulations, namely that corrected transmission volumes must be filed by the end of the calendar year in which the transmission volumes were originally filed. This is what the Commission's regulations require. 15 The court found, while vacating and remanding the Commission's determination as to Westar, that the first three of the Commission's four reasons for denying Westar's request both alone and together justify this policy:
(1)The regulations expressly required filing of corrections by a date certain;
(2)waiving the deadline would undermine the certainty that the annual charges would not be indefinitely subject to change; and
(3)the Commission has never suggested it would ignore the deadline spelled out in its regulations. 16 15 18 CFR 382.201(c)(2) (2006). 16 473 F.3d. at 1241-42. As noted above, it was the Commission's failure to adequately explain the fourth reason that led to the remand. 11. We also announce a policy, going forward, as to when we will waive the regulation and allow untimely submissions. The Commission's policy going forward will be to grant waiver and accept only those late-filed corrections discovered through a Commission-conducted audit in order to remedy an underreporting of transmission volumes (and thus where other utilities have subsidized the underreporting utility). 12. As stated above, the Commission allocates its collectible electric regulatory program costs among public utilities. A reduction in the amount owed by one utility necessarily has an effect, an increase, on the amount owed by all of the others. Therefore, if a utility does not accurately report its transmission volumes, the Commission cannot charge it appropriately. 17 The allocation of costs based on transmission volumes creates a natural incentive for utilities to underreport their transmission volumes in a given year. Just as public utilities have a natural incentive to “abuse their market power,” 18 so, by analogy, public utilities subject to reporting transmission volumes for purposes of calculating their proportionate share of the Commission's collectible electric regulatory program costs have similar incentives to underreport their transmission volumes and thereby reduce the costs allocated to them. The effect of such underreporting is an inequitable subsidization by other utilities of any utility that underreported. The agency's audit process provides a check on that natural incentive. Therefore, the Commission will allow late-filed corrections resulting from an audit revealing that a utility has underreported its transmission volumes and consequently forced other utilities to bear costs that should have been borne by the underreporting utility. The Commission thus retains its ability to make right the situation where the remainder of the industry has paid amounts which rightfully were owed by another. 19 17 As we have noted, the transmission volumes utilities report are the utilities' data. These data are, moreover, filed under oath. 18 CFR 382.201(c)(1) (2006); *see Revision of Annual Charges to Public Utilities (PJM Interconnection),* 105 FERC ¶ 61,093 at P 8 (2003); *Midwest Independent Transmission System Operator, Inc.,* 103 FERC ¶ 61,048 at P 13-14, *reh'g denied,* 104 FERC ¶ 61,060 (2003); *CAISO,* 101 FERC ¶ 61,326 at P 9; *CAISO,* 101 FERC ¶ 61,043 at P 10. While utilities are thus required to report complete and accurate data (by April 30 of each year), we nevertheless recognize that utilities may err in their reporting, and so we allow corrections to be filed up to eight months following their original filing, *i.e.* , by the end of the calendar year. 18 *Pennsylvania Elec. Co.* v. *FERC,* 11 F.3d 207, 211 n.5 (D.C. Cir. 1993); *Nat'l Fuel Gas Supply Corp.* v. *FERC,* 468 F.3d 831, 834-835 (D.C. Cir. 2006); *United Distribution Cos.* v. *FERC,* 88 F.3d 1105, 1122 & n.4 (D.C. Cir. 1996); *Associated Gas Distribs.* v. *FERC,* 824 F.2d 981, 1010 (D.C. Cir. 1987). 19 If the Commission finds that the underreporting was intentional, it may seek to invoke its civil penalty authority as well. 13. However, the reverse is not true. Overreporting does not raise the same concerns as underreporting; if a company overreports its transmission volumes and fails to file corrections by the deadline, it does so to its detriment and harms no one but itself. Errors of overreporting discovered after the deadline, by Commission-conducted audit or otherwise, thus may not be corrected. The D.C. Circuit acknowledged that any one of the first three justifications provided by the Commission, described above, justify a Commission policy of not accepting a corrected FERC 582 after the deadline. Indeed, the Commission need not have structured its regulation to allow corrections at all. The data the utilities must report is, after all, the utilities' data, and that data must be filed under oath; in other words, full and complete reporting at the outset should be the norm. The Commission, however, elected to build leniency into its requirement to submit transmission volumes, in the form of an 8-month window from the April 30 filing deadline to the December 31 corrections deadline. That 8-month window provides more than sufficient time for utilities to identify and correct their overreporting. *The Commission orders:*
(A)The Commission hereby grants waiver of the annual charges reporting requirement, FERC 582, to allow Westar to submit corrected information for FY 2002 (reporting corrected calendar year 2001 transmission data). The upcoming annual charges will be calculated to reflect this corrected information.
(B)The Secretary is hereby directed to publish this order in the **Federal Register** . By the Commission. Philis J. Posey, Acting Secretary. [FR Doc. E7-5052 Filed 3-21-07; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [MSN-2006-1; FRL-8290-4] New Stationary Sources; Supplemental Delegation of Authority to the Mississippi Department of Environmental Quality AGENCY: Environmental Protection Agency (EPA). ACTION: Delegation of authority. SUMMARY: The Mississippi Department of Environmental Quality (MSDEQ or agency) has requested that EPA delegate authority for implementation and enforcement of existing New Source Performance Standards
(NSPS)which have been previously adopted by the agency but have remained undelegated by EPA, and has requested that EPA approve the mechanism for delegation (adopt-by-reference) of future NSPS. The purpose of MSDEQ's request for approval of its delegation mechanism is to streamline existing administrative procedures by eliminating any unnecessary steps involved in the Federal delegation process. With this NSPS delegation mechanism in place, a new or revised NSPS promulgated by EPA will become effective in the State of Mississippi on the date the NSPS is adopted-by-reference pursuant to a rulemaking of the MSDEQ, if the agency adopts the NSPS without change. “Adopt-by-reference” means the EPA promulgated standard has been adopted directly into the State regulations by reference to the Federal law. No further agency requests for delegation will be necessary. Likewise, no further **Federal Register** notices will be published. In this action, EPA is delegating authority to MSDEQ for implementation and enforcement of existing NSPS which have been previously adopted by MSDEQ and which are identified in the Supplementary Information section below. In addition, EPA is approving MSDEQ's “adopt-by-reference” mechanism for delegation of future NSPS. DATES: *Effective Date:* The effective date is March 22, 2007. ADDRESSES: Copies of the request for delegation of authority are available for public inspection during normal business hours at the following locations: Environmental Protection Agency, Region 4, Air Toxics and Monitoring Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303; Mississippi Department of Environmental Quality, P.O. Box 10385, Jackson, Mississippi 39289-0385. Effective immediately, all requests, applications, reports and other correspondence required pursuant to the delegated standards should not be submitted to the Region 4 office, but should instead be submitted to the following address: Mississippi Department of Environmental Quality, P.O. Box 10385, Jackson, Mississippi 39289-0385. FOR FURTHER INFORMATION CONTACT: Keith Goff, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960, 404-562-9137. Mr. Goff can also be reached via electronic mail at *goff.keith@epa.gov.* SUPPLEMENTARY INFORMATION: Sections 101, 110, 111(c)(1), and 301 of the Clean Air Act authorize EPA to delegate authority to implement and enforce the standards set out in 40 CFR Part 60, NSPS. On November 30, 1981, EPA initially delegated the authority for implementation and enforcement of the NSPS program to the MSDEQ. This agency has subsequently requested a delegation of authority for implementation and enforcement of the previously adopted, undelegated part 60 NSPS categories listed below. 1. 40 CFR part 60, subpart Eb, adopted January 25, 1996. 2. 40 CFR part 60, subpart Ec, adopted January 22, 1998. 3. 40 CFR part 60, subpart WWW, adopted August 22, 1996. 4. 40 CFR part 60, subpart AAAA, adopted August 22, 2002. 5. 40 CFR part 60, subpart CCCC, adopted August 22, 2002. EPA's review of Mississippi's pertinent laws, rules, and regulations has shown them to be adequate for implementation and enforcement of these existing, previously adopted, undelegated NSPS. Based on this review, EPA has determined that delegation of the above-referenced NSPS is appropriate, with the non-delegable exceptions noted below. All sources subject to the delegable requirements in these NSPS subparts will now be under the jurisdiction of the MSDEQ, although EPA reserves the right to implement the Federal NSPS directly and continues to retain concurrent enforcement authority. The NSPS subparts and portions of subparts that may not be delegated, and are therefore not delegated by this action are: 1. Subpart A—§ 60.8(b)
(2)and (3), § 60.11(e)
(7)and (8), § 60.13 (g),
(i)and (j)(2) 2. Subpart B—§ 60.22, § 60.27, and § 60.29 3. Subpart Da—§ 60.45a 4. Subpart Db—§ 60.44b(f), § 60.44b(g), § 60.49b(a)(4) 5. Subpart Dc—§ 60.48c(a)(4) 6. Subpart Ec—§ 60.56c(i) 7. Subpart J—§ 60.105(a)(13)(iii), § 60.106(i)(12) 8. Subpart Ka—§ 60.114a 9. Subpart Kb—§ 60.111b(f)(4), § 60.114b, § 60.116b(e)(3)
(iii)and (iv), § 60.116b(f)(2)(iii) 10. Subpart O—§ 60.153(e) 11. Subpart EE—§ 60.316(d) 12. Subpart GG—§ 60.334(b)(2), § 60.335(f)(1) 13. Subpart RR—§ 60.446(c) 14. Subpart SS—§ 60.456(d) 15. Subpart TT—§ 60.466(d) 16. Subpart UU—§ 60.474(g) 17. Subpart VV—§ 60.482-1(c)(2) and § 60.484 18. Subpart WW—§ 60.496(c) 19. Subpart XX—§ 60.502(e)(6) 20. Subpart AAA—§ 60.531, § 60.533, § 60.534, § 60.535, § 60.536(i)(2), § 60.537, § 60.538(e), § 60.539 21. Subpart BBB—§ 60.543(c)(2)(ii)(B) 22. Subpart DDD—§ 60.562-2(c) 23. Subpart III—§ 60.613(e) 24. Subpart NNN—§ 60.663(e) 25. Subpart RRR—§ 60.703(e) 26. Subpart SSS—§ 60.711(a)(16), § 60.713(b)(1)(i), § 60.713(b)(1)(ii), § 60.713(b)(5)(i), § 60.713(d), § 60.715(a), § 60.716 27. Subpart TTT—§ 60.723(b)(1), § 60.723(b)(2)(i)(C), § 60.723(b)(2)(iv), § 60.724(e), § 60.725(b) 28. Subpart VVV—§ 60.743(a)(3)(v)(A) and (B), § 60.743(e), § 60.745(a), § 60.746 29. Subpart WWW— § 60.754(a)(5) 30. Subpart CCCC—§ 60.2030(c) In addition, EPA is approving MSDEQ's “adopt-by-reference'' delegation mechanism for future NSPS. EPA's review of the pertinent laws, rules, and regulations for the agency has shown them to be adequate for implementation and enforcement of existing, previously adopted, undelegated NSPS and future NSPS. Future NSPS regulations will contain a list of sections that cannot be delegated for that subpart. With this NSPS “adopt-by-reference” delegation mechanism in place, a new or revised NSPS promulgated by EPA will become effective in the State of Mississippi on the date the NSPS is adopted-by-reference pursuant to a rulemaking of the Mississippi Department of Environmental Quality, if the agency adopts the NSPS without change. EPA reserves the right to implement the Federal NSPS directly and continues to retain concurrent enforcement authority. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this action delegates pre-existing requirements under Federal law and does not impose any additional enforceable duty beyond that required by Federal law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely delegates the implementation and enforcement of an existing Federal standard and approves a delegation mechanism for future Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule, as that term is defined in 5 U.S.C. 804(3). In reviewing delegation requests and mechanisms for delegation, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a delegation request or disapprove a proposed delegation mechanism for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a delegation request or proposed delegation mechanism, to use VCS in place of a delegation request or proposed delegation mechanism that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). This action granting delegation authority for implementation and enforcement of existing NSPS and approving a delegation mechanism for future NSPS is issued under the authority of sections 101, 110, 111, and 301 of the Clean Air Act, 42 U.S.C. 7401, 7410, 7411, and 7601. Authority: 42 U.S.C. 7401 *et seq.* Dated: March 1, 2007. Russell L. Wright, Jr., Acting Regional Administrator, Region 4. [FR Doc. E7-5261 Filed 3-21-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 281 [FRL-8290-7] Colorado; Final Approval of State Underground Storage Tank Program AGENCY: Environmental Protection Agency. ACTION: Notice of Final Determination on the State of Colorado's Application for Final Approval. SUMMARY: The State of Colorado has applied for approval of the underground storage tank program under Subtitle I of the Resource Conservation and Recovery Act (RCRA). The Environmental Protection Agency
(EPA)has reviewed the Colorado application and has reached a final determination that Colorado's underground storage tank program satisfies all of the requirements necessary to qualify for approval under the regulations. Thus, the EPA is granting final approval to the State of Colorado to operate its Underground Storage Tank Program for petroleum and hazardous substances. DATES: *Effective Date:* Final approval for the State of Colorado's Underground Storage Tank Program is effective on April 23, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R08-UST-2006-0295. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available *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 form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the following addresses:
(1)Colorado Department of Labor & Employment, Division of Oil and Public Safety, Public Records Center, 633 17th Street, Suite 200, Denver, CO 80202 from 8 a.m. to Noon, and
(2)U.S. EPA, Library, Region 8, 1595 Wynkoop Street, Room 2139, Denver, CO 80202-1129 from 10 a.m. to 4 p.m. We recommend that you contact Francisca Chambus, UST Team, at 303.312.6782 before visiting the Region 8 office. FOR FURTHER INFORMATION CONTACT: Francisca Chambus U.S. EPA, Region 8, MC: 8P-W-GW, 1595 Wynkoop Street, Denver, CO 80202-1129 or at 303.312.6782. SUPPLEMENTARY INFORMATION: I. Background Section 9004 of the Resource Conservation and Recovery Act
(RCRA)authorizes EPA to approve State underground storage tank programs to operate in the State in lieu of the Federal underground storage tank
(UST)program. Program approval may be granted by EPA pursuant to RCRA section 9004(b), if the Agency finds that the State program: Is “no less stringent” than the Federal program for the seven elements set forth at RCRA section 9004(a)(1) through (7); includes the notification requirements of RCRA section 9004(a)(8); and provides for adequate enforcement of compliance with UST standards of RCRA section 9004(a). Note that RCRA sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in states with programs approved by EPA under RCRA section 9004. Thus, the Agency retains its authority under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State authorized analogues to these provisions. II. Colorado The Colorado Department of Labor & Employment, Division of Oil & Public Safety
(OPS)is the lead implementing agency for the UST program in Colorado. On November 13, 2002 the EPA received Colorado's application for State Program Approval
(SPA)of Colorado's UST program. EPA reviewed their application and determined it to be complete. On November 27, 2006, the EPA published a tentative decision announcing its intent to grant Colorado final approval. Along with the tentative determination, EPA announced the availability of the application for public comment and provided notice that a public hearing would be provided if significant public interest was shown. EPA did not receive any comments or requests for a public hearing. III. Decision I conclude that the State of Colorado's application for final program approval meets all of the statutory and regulatory requirements established by Subtitle I of RCRA. Accordingly, Colorado is granted final approval to operate its Underground Storage Tank Program in lieu of the Federal program. This final determination to approve the Colorado program applies to all areas within the State except for land within formal Indian reservations located within or abutting the State of Colorado, including: the Ute Mountain Ute and Southern Ute Indian Reservations, any off-reservation land held in trust by the United States for an Indian tribe; and any other areas that are “Indian country” within the meaning of 18 U.S.C. 1151. The State of Colorado now has the responsibility for managing underground storage tank facilities within its borders and carrying out all aspects of the UST program except for facilities located within “Indian Country,” where EPA will retain regulatory authority. Colorado also has primary enforcement responsibility, although EPA retains the right to conduct inspections under section 9005 of RCRA 42 U.S.C. 6991d and to take enforcement actions under section 9006 of RCRA 42 U.S.C. 6991e. IV. Statutory and Executive Order Reviews This rule only applies to the Colorado Department of Labor & Employment's underground storage tank program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law (see Supplementary Information). Therefore, this rule complies with applicable executive orders and statutory provisions as follows. 1. *Executive Order 12866:* Regulatory Planning Review—The Office of Management and Budget has exempted this rule from its review under Executive Order
(EO)12866. 2. *Paperwork Reduction Act:* This rule does not impose an information collection burden under the Paperwork Reduction Act. 3. *Regulatory Flexibility Act:* After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. *Unfunded Mandates Reform Act:* Because this rule codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act. 5. *Executive Order 13132:* Federalism—EO 13132 does not apply to this rule because it will not have federalism implications ( *i.e.* , 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). 6. *Executive Order 13175:* Consultation and Coordination with Indian Tribal Governments—EO 13175 does not apply to this rule because it will not have tribal implications ( *i.e.* , 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). 7. *Executive Order 13045:* Protection of Children from Environmental Health & Safety Risks: This rule is not subject to EO 13045 because it is not economically significant and it is not based on health or safety risks. 8. *Executive Order 13211:* Actions that Significantly Affect Energy Supply, Distribution, or Use: This rule is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866. 9. *National Technology Transfer and Advancement Act:* Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 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 ( *e.g.* , 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 is not considering the use of any voluntary consensus standards. List of Subjects in 40 CFR Part 281 Environmental protection, Administrative practice and procedure, Hazardous materials, State program approval, Underground storage tanks. Authority: This notice is issued under the authority of Sections 2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6974(b), and 6991(c). Dated: March 15, 2007. Kerrigan G. Clough, Deputy Regional Administrator, Region 8. [FR Doc. E7-5263 Filed 3-21-07; 8:45 am] BILLING CODE 6560-50-P 72 55 Thursday, March 22, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27193; Directorate Identifier 2007-CE-009-AD] RIN 2120-AA64 Airworthiness Directives; Viking Air Limited (Type Certificate No. A-806 Previously Held by deHavilland Inc.) Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III 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 that would supersede an existing AD. 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: A report has been received of stress corrosion cracking occurring in the wing lift strut lower clevis fitting, part number C2W-1097A. 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 23, 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: George J. Duckett, Aerospace Engineer, FAA, New York Aircraft Certification Office, 10 Fifth Street, Valley Stream, New York 11581; telephone:
(516)228-7325; fax:
(516)794-5531. 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-2007-27193; Directorate Identifier 2007-CE-009-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 We issued AD 88-08-02, Amendment 39-5889, to address an unsafe condition on the products listed above. Since we issued AD 88-08-02, additional airplanes have been identified that need to be added to the Applicability section. Viking Air Limited has issued Revision C to Service Bulletin No. 2/41 that changes the inspection method from dye penetrant to fluorescent penetrant. Viking Air Limited has also issued Service Bulletin 2/55 that allows for eddy current inspections, which extend the repetitive inspection intervals. Transport Canada, which is the aviation authority for Canada, has issued AD No. CF-1985-08R4, dated September 28, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: A report has been received of stress corrosion cracking occurring in the wing lift strut lower clevis fitting, part number C2W-1097A. The MCAI requires: This AD revision is being issued to allow operators the option of continuing with the existing inspection intervals in accordance with CF-85-08R3 (Part A) or incorporating the improved alternate inspection method in accordance with Part B, to permit an increase in inspection intervals. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Viking Air Limited has issued Service Bulletin S/B No. 2/41, Revision “C”, dated June 23, 2006; and Service Bulletin No. 2/55, dated June 23, 2006. The actions described in these service bulletins 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 392 products of U.S. registry. We also estimate that it would take about 7 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $219,520, or $560 per product. In addition, we estimate that any necessary follow-on actions would take about 7 work-hours and require parts costing $6,227 for each wing strut assembly, for a cost of $6,787 per wing strut assembly. 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 removing Airworthiness Directive
(AD)88-08-02, Amendment 39-5889, and adding the following new AD: **Viking Air Limited (Type Certificate No. A-806 previously held by deHavilland Inc.):** Docket No. FAA-2007-27193; Directorate Identifier 2007-CE-009-AD. Comments Due Date
(a)We must receive comments by April 23, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, all serial numbers, that:
(1)Are certificated in any category; and
(2)Are equipped with wing lift strut assemblies, part numbers (P/Ns) C2W1103, C2W1103A, C2W1104, or C2W1104A. Subject
(d)Air Transport Association of America
(ATA)Code 57: Wings. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: A report has been received of stress corrosion cracking occurring in the wing lift strut lower clevis fitting, part number C2W-1097A. Retained Requirements of AD 88-08-02
(f)For all Models DHC-2 Mk. I and DHC-2 Mk. III airplanes certificated in any category that are equipped with wing lift strut assemblies, P/Ns C2W1103, C2W1103A, C2W1104, or C2W1104A: Within 100 hours time-in-service
(TIS)or one month after May 11, 1988 (the effective date of AD 88-08-02), whichever occurs first, and thereafter at intervals not to exceed 500 hours TIS or 12 calendar months, whichever occurs first:
(1)Remove wing strut assemblies, C2W1103 or C2W1103A and C2W1104 or C2W1104A from the airplane and prepare the assemblies for inspection as described in the “ACCOMPLISHMENT INSTRUCTIONS” section of DeHavilland Service Bulletin (S/B) No. 2/41, Revision A, dated August 14, 1987.
(2)Conduct a dye penetrant inspection with a 10-power glass for cracks in the lugs of the lower attachment clevis fitting.
(3)If cracks are found, prior to further flight replace the complete strut assembly with a strut assembly of the same part number that has had the lower clevis fitting inspection using the dye penetrant procedure and has been found free of cracks, or strut assembly C2W1115-1 or C2W1115-2, as appropriate.
(4)If no cracks are found, clean the lower clevis fitting and reinstall the wing strut assembly.
(5)If wing strut assembly C2W1115-1 or C2W1115-2 is installed, the recurring inspection specified in paragraph
(f)of this AD is no longer required. New Requirements of This AD: Actions and Compliance
(g)Unless already done, do either
(1)or
(2)of the following actions:
(1)*Inspection using fluorescent penetrant method:* Perform the Accomplishment Instructions of Viking Air Ltd. Service Bulletin No. 2/41, Revision C, dated June 23, 2006.
(i)*For airplanes previously affected by AD 88-08-02:* Inspect within 12 calendar months after the last inspection required by AD 88-08-02 or within 30 days after the effective date of this AD, whichever occurs later, and thereafter at intervals not to exceed 12 calendar months.
(ii)*For airplanes not previously affected by AD 88-08-02:* Inspect within the next 100 hours time-in-service
(TIS)or 12 calendar months after the effective date of this AD, whichever occurs first, and thereafter at intervals not to exceed 12 calendar months.
(2)*Inspection using eddy current method:* Perform the Accomplishment Instructions of Viking Air Ltd. SB No. 2/55, dated June 23, 2006.
(i)*For airplanes previously affected by AD 88-08-02:* Inspect within 12 calendar months after the last inspection required by AD 88-08-02 or within 30 days after the effective date of this AD, whichever occurs later, and thereafter at intervals not to exceed 24 calendar months.
(ii)*For airplanes not previously affected by AD 88-08-02:* Inspect within 100 hours TIS or 12 calendar months after the effective date of this AD, whichever occurs first, and thereafter at intervals not to exceed 24 calendar months.
(3)If cracks are found during any inspection required by either paragraph (g)(1) or (g)(2) of this AD, before further flight:
(i)Replace the complete strut assembly with a strut assembly of the same part number that has had the lower clevis fitting inspected using either the fluorescent penetrant method specified in paragraph (g)(1) of this AD or the eddy current method specified in paragraph (g)(2) of this AD and is found free of cracks; or
(ii)Replace the complete strut assembly with strut assembly C2W1115-1 or C2W1115-2, as appropriate. Installing wing strut assembly C2W1115-1 or C2W1115-2 as replacement parts terminates the recurring inspections required in paragraphs (g)(1) and (g)(2) of this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(h)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office, FAA, ATTN: George J. Duckett, Aerospace Engineer, 10 Fifth Street, Valley Stream, New York 11581; telephone:
(516)228-7325; fax
(516)794-5531, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)AMOCs approved for AD 88-08-02 are not approved for this AD.
(3)*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.
(4)*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
(i)Refer to MCAI Transport Canada AD CR-1985-08R4, dated September 28, 2006; and Viking Air Limited Service Bulletin S/B No. 2/41, Revision “C”, dated June 23, 2006; and Service Bulletin No. 2/55, dated June 23, 2006; for related information. Issued in Kansas City, Missouri, on March 15, 2007. David R. Showers, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-5215 Filed 3-21-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-003] RIN 1625-AA00 Safety Zone; Kenosha Harbor, Kenosha, WI AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish a temporary safety zone in Kenosha Harbor at the east end of the south pier. This zone is intended to restrict vessels from portions of Lake Michigan and Kenosha Harbor during a fireworks display on August 11, 2007. This zone is necessary to protect the public from the hazards associated with fireworks displays. DATES: Comments and related material must reach the Coast Guard on or before April 23, 2007. ADDRESSES: You may mail comments and related material to Commander, Coast Guard Sector Lake Michigan (spw), 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207. The Sector Lake Michigan 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 the Sector Lake Michigan Prevention Department between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at
(414)747-7154. 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 [CGD09-07-003], 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 the Sector Lake Michigan Prevention Department 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 This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Lake Michigan has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks. Discussion of Proposed Rule A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Kenosha Days of Discovery fireworks display. The fireworks display will occur between 8 p.m. (local) and 10 p.m. (local) on August 11, 2007. The safety zone for the fireworks will encompass all waters of Lake Michigan and Kenosha Harbor within a 300 yard radius of position 42°35′14″ N, 087°48′29″ W (NAD 83). All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16. 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 Coast Guard will only use this safety zone for two hours on the date specified. This safety zone has been designed to allow vessels to transit unrestricted to portions of the harbor not affected by the zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this zone. 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 proposed rule would affect the following entities, some of which might be small entities: The owners of vessels intending to transits or anchor in a portion of Kenosha Harbor between 8 p.m. (local) and 10 p.m. (local) on August 11, 2007. The safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only 2 hours. Vessel traffic can safely pass around the safety zone. 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 CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at
(414)747-7154. 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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect the 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 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. This proposed rule establishes a regulated navigation area and as such is covered by this paragraph. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . 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 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, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T09-003 to read as follows: § 165.T09-003 Safety Zone, Kenosha Harbor, Kenosha, WI.
(a)*Location.* The following area is a temporary safety zone: all waters of Lake Michigan and Kenosha Harbor within a 300-yard radius of position 42°35′14″ N, 087°48′29″ W (NAD 83).
(b)*Effective period.* This regulation is effective from 8 p.m. (local) on August 11, 2007 to 10 p.m. (local), on August 11, 2007.
(c)*Regulations.*
(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or his designated on-scene representative.
(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or his designated on-scene representative.
(3)The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Lake Michigan or his on-scene representative. Dated: March 8, 2007. Bruce C. Jones, Captain, U.S. Coast Guard, Commander, Coast Guard Sector Lake Michigan. [FR Doc. E7-5179 Filed 3-21-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-HQ-OAR-2007-0170; FRL-8290-9] Supplemental Proposed Rulemaking on 8-Hour Ozone Redesignations for Various Areas in Michigan, Ohio and West Virginia AGENCY: Environmental Protection Agency (EPA). ACTION: Supplemental proposed rule. SUMMARY: On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour ozone standard. This supplemental proposed rulemaking sets forth EPA's views on the potential effect of the Court's ruling on a number of proposed redesignation actions. This rulemaking applies to eighteen 8-hour ozone nonattainment areas in Michigan, Ohio and West Virginia, for which EPA has proposed approval of the States' redesignation requests. For the reasons set forth in the notice, EPA proposes to find that the Court's ruling does not alter any requirements relevant to these proposed redesignations that would prevent EPA from finalizing these redesignations. The EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that may be filed, imposes no impediment to moving forward with redesignation of these areas to attainment, because in either circumstance, redesignation is appropriate under the relevant redesignation provisions of the Clean Air Act
(CAA)and EPA's longstanding policies regarding redesignation requests. DATES: Comments must be received on or before April 6, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0170 by one of the following methods: • *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. • *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-2007-0170. The 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. FOR FURTHER INFORMATION CONTACT: Butch Stackhouse, Air Quality Policy Division, Office of Air Quality Planning and Standards, State and Locals Program Group, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number
(919)541-5208; e-mail address: *stackhouse.butch@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? This action applies to you if you are a State that has proposed areas for redesignation from nonattainment to attainment of the 8-hour ozone standard, but EPA has not yet finalized such actions. *This action is applicable therefore to the following States:* Michigan; Ohio, and West Virginia. This supplemental proposed rulemaking applies to eighteen 8-hour ozone nonattainment areas, sixteen of which were designated nonattainment for the 8-hour ozone standard and classified under Subpart 1 of Part D of the CAA, and which were previously designated Unclassifiable/Attainment, or Attainment subject to a CAA section 175A maintenance plan under the 1-hour standard. EPA has published proposed rulemakings to redesignate these areas to attainment for the 8-hour ozone standard. The areas and dates of proposed rulemakings for these areas are: Parkersburg-Marietta, OH-WV (Washington County, OH), request submitted on November 17, 2006 and proposed on January 17, 2007, 72 FR 1956, previously Unclassifiable/Attainment for the 1-hour standard; Parkersburg-Marietta, OH-WV (Wood County, WV), request submitted on September 8, 2006 and proposed on January 12, 2007, 72 FR 1474, previously Attainment subject to a maintenance plan for the 1-hour standard; Steubenville-Weirton, OH-WV (Brooke and Hancock Counties, WV) request submitted on August 3, 2006 and proposed on October 2, 2006, 71 FR 57905, previously designated Unclassifiable/Attainment for the 1-hour standard; Wheeling, OH-WV (Marshall and Ohio counties, WV) request submitted on July 24, 2006 and proposed on October 2, 2006, 71 FR 57894, previously designated Unclassifiable/Attainment for the 1-hour standard; Flint (Genesee and Lapeer Counties), MI request submitted on June 13, 2006 and proposed on January 8, 2007, 72 FR 699, previously designated Attainment subject to a maintenance plan for the 1-hour standard (Genesee County) and Unclassifiable/Attainment (Lapeer County) for the 1-hour standard; Benton Harbor (Berrien County), MI request submitted on June 13, 2006 and proposed on January 8, 2007, 72 FR 699, previously designated Unclassifiable/Attainment for the 1-hour standard; Benzie County, MI request submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, previously designated Unclassifiable/ Attainment for the 1-hour standard; Grand Rapids, (Kent and Ottawa Counties), MI request submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, previously designated Attainment subject to a maintenance plan for the 1-hour standard; Huron County, MI request submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, previously designated Unclassifiable/Attainment for the 1-hour standard; Kalamazoo-Battle Creek (Calhoun, Kalamazoo, and Van Buren Counties), MI request submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, previously designated Unclassifiable/Attainment for the 1-hour standard; Lansing-East Lansing (Clinton, Eaton, and Ingham counties), MI request submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, previously designated Unclassifiable/Attainment for the 1-hour standard; Mason County, MI request submitted on May 9, 2006 and proposed on December 7, 2006, 70 FR 70915, previously designated Unclassifiable/Attainment for the 1-hour standard; Canton-Massillon (Stark County), OH request submitted on August 24, 2006 and proposed on December 27, 2006, 71 FR 77678, previously designated Attainment subject to a maintenance plan for the 1-hour standard; Lima (Allen County), OH request submitted on August 24, 2006 and proposed on December 27, 2006, 71 FR 77678, previously designated Unclassifiable/Attainment for the 1-hour standard; Wheeling, OH-WV (Belmont County, OH) request submitted on August 24, 2006 and proposed on December 27, 2006, 71 FR 77666, previously designated Unclassifiable/ Attainment for the 1-hour standard; and Steubenville-Weirton, OH-WV (Jefferson County, OH) request submitted on October 3, 2006 and proposed on January 8, 2007, 72 FR 711, previously designated Attainment subject to a maintenance plan for the 1-hour standard. This rulemaking also applies to two 8-hour nonattainment areas that were classified under Subpart 2 for the 8-hour ozone standard. These areas, Muskegon, (Muskegon county), MI and Cass County, MI, were also previously designated Attainment subject to a maintenance plan (Muskegon) and Unclassifiable/Attainment (Cass County) for the 1-hour standard. The request was submitted on June 13, 2006 and proposed rulemakings for these areas on January 8, 2007, 72 FR 699. B. What Should I Consider as I Prepare My Comments for EPA? *1. Submitting CBI.* Do not submit this information to EPA through *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. The 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 Acting Assistant Administrator for Air and Radiation, a copy of this proposed rule will be posted on the EPA's *http://www.epa.gov/ozonedesignations/* . 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. What is the Background for This Action? III. What are EPA's Views on the Potential Effect of the Court's Ruling on the Proposed Redesignation Actions Identified in This Action? A. Areas Classified Under Subpart 1 B. Areas Classified Under Subpart 2: Muskegon and Cass County, MI IV. What Action is EPA proposing? V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act 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 and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations II. What Is the Background for This Action? On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist* . v. *E.P.A.* , 472 F.3d 882 (DC Cir. December 22, 2006). The Court held that certain provisions of EPA's Phase 1 Rule were inconsistent with the requirements of the CAA. The Court rejected EPA's reasons for implementing the 8-hour ozone standard in nonattainment areas under subpart 1 in lieu of subpart 2 of Title I, part D of the CAA. The Court also held that EPA improperly failed to retain four measures required for 1-hour nonattainment areas in the anti-backsliding provisions of the regulations:
(1)Nonattainment area New Source Review
(NSR)requirements based on an area's 1-hour nonattainment classification;
(2)Section 185 penalty fees for severe or extreme nonattainment areas;
(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS;
(4)and the requirement to demonstrate that certain types of projects meet certain conformity requirements. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. The Court has established March 22, 2007, as the date by which any rehearing petitions must be filed. III. What Are EPA's Views on the Potential Effect of the Court's Ruling on the Proposed Redesignation Actions Identified in This Action? This action sets forth EPA's views on the potential effect of the Court's ruling on the proposed redesignation actions that are the subject of this document. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to these proposed redesignations and does not prevent EPA from finalizing these redesignations. The EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that may be filed, imposes no impediment to moving forward with redesignation of these areas to attainment, because in either circumstance, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. A. Areas Classified Under Subpart 1 1. Possible Subpart 2 Requirements With respect to the 16 8-hour nonattainment areas EPA classified under Subpart 1 at the time of designation, EPA notes that the Court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8-hour standard and remanded that matter to the Agency. Consequently, it is possible that these areas could, during a remand to EPA, be reclassified under Subpart 2. Although any future decision by EPA to classify these areas under subpart 2 might trigger additional future requirements for such areas, EPA believes that this does not mean that redesignation of the areas that are the subject of this notice cannot now go forward. This belief is based upon:
(1)EPA's longstanding policy of evaluating redesignation requests in accordance with only the requirements due at the time the request was submitted;
(2)consideration of the inequity of applying retroactively any requirements that might be applied in the future and,
(3)with respect to certain of the areas that are the subject of this notice, the fact that the redesignation requests preceded even the earliest possible due dates of any requirements for Subpart 2 areas. First, at the time the redesignation requests for the 16 Subpart 1 areas that are the subject of this notice were submitted, the areas were classified under Subpart 1 and were obligated to meet the Subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant State Implementation plan
(SIP)requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division); See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor). *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). See, *e.g.* , also 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. Louis). At the time the redesignation requests were submitted, the 16 areas were not classified under Subpart 2 and no Subpart 2 requirements were applicable for purposes of redesignation. Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted, but which might later become applicable. The DC Circuit has recognized the inequity in such retroactive rulemaking, See *Sierra Club* v. *Whitman* 285 F. 3d 63 (DC Cir. 2002), in which the DC Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory timeframe, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly, here it would be unfair to penalize the areas included in this notice by applying to them for purposes of redesignation any additional SIP requirements under Subpart 2 that were not in effect at the time they submitted their redesignation requests, but that might apply in the future. Third, even if a future Subpart 2 classification were applied to these areas retroactively, for many of the Subpart 1 areas subject to this notice, the Subpart 2 requirements would still not be considered applicable for purposes of redesignation. As set forth above, the applicable requirements for purposes of redesignation are only those that became due prior to submission of the redesignation request. In the case of eight of the areas subject to this rulemaking, 1 the submission of the redesignation request preceded even the earliest possible due date of requirements for areas classified under Subpart 2 effective June 2004. These requests were all submitted before the earliest such submission date, which was June 15, 2006, for the emissions statement requirement under section 182(a)(3)(B) and emissions inventories under section 182(a)(1). Thus for this additional reason alone these additional Subpart 2 requirements would not be applicable for purposes of evaluating redesignation requests for these areas. In addition, to the extent that areas had complied with the emissions statement requirement for the 1-hour standard under section 182(a)(3)(B), this could also be considered to satisfy the requirement under the 8-hour standard. 1 Benzie County, MI, Grand Rapids, MI, Huron County, MI, Kalamazoo-Battle Creek, MI, Lansing-East Lansing, MI, Benton Harbor, MI, Mason County, MI, Flint, MI. 2. Requirements Under the 1-Hour Standard With respect to the Court's ruling regarding EPA's revocation of the 1-hour standard, all of the Subpart 1 areas that are the subject of the pending redesignation actions were designated attainment or unclassifiable/ attainment or attainment subject to a maintenance plan for the 1-hour standard. Those areas designated attainment or unclassifiable/attainment were never designated nonattainment for the 1-hour standard. Thus, the provisions at issue in the antibacksliding portion of the Court's decision never applied to these areas and would not apply. For those areas designated attainment subject to a CAA section 175A maintenance plan for the 1-hour standard, the Court's ruling could be interpreted to require continuation of certain conformity requirements, such as the requirement to submit a transportation conformity SIP that addresses the 1-hour standard. 2 EPA approved conformity SIPs for those subpart 1 areas in Michigan and Ohio that were attainment subject to a maintenance plan for the 1-hour standard. 3 2 CAA section 176(c)(4)(E) currently requires States to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the motor vehicle emissions budgets that are established in control strategy SIPs and maintenance plans. 3 Grand Rapids (MI), the Genesee County portion of Flint (MI), Canton-Massillon (OH), the Ohio portion of Steubenville-Weirton
(OH)EPA approved Michigan's conformity SIP on December 18, 1996 (61 FR 66609), and Ohio's on May 30, 2000 (65 FR 34395). Moreover, under longstanding EPA policy, EPA interprets the conformity SIP requirements as not being applicable requirements for purposes of evaluating a redesignation request under section 107(d). See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001), (upholding this interpretation). See also 60 FR 62748 (Dec. 7. 1995) (Tampa, FL redesignation). This is because state conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. 40 CFR 93.151 and 40 CFR 51.390. Thus the decision in *South Coast* should not alter requirements for these areas that would preclude EPA from finalizing its proposed redesignations. B. Areas Classified Under Subpart 2: Muskegon and Cass County, MI 1. Subpart 2 Requirements The two 8-hour nonattainment areas listed above are classified under subpart 2 for the 8-hour standard. We do not believe that any part of the Court's opinion could require that these subpart 2 classifications be changed upon remand to EPA. However, even assuming that they may (and Muskegon and Cass County would be subject to a different classification under a classification scheme created in a future rule in response to the court's decision) that would not prevent EPA from finalizing the proposed redesignation for these areas. For the same reasons set forth above with respect to the applicability of Subpart 2 requirements to areas that were classified Subpart 1 at the time of submission of redesignation requests, any additional requirements that might apply based on that different classification would not be applicable for purposes of evaluating their redesignation requests. 2. Requirements Under the 1-Hour Standard With respect to the 1-hour standard, since Cass County was never designated nonattainment for the 1-hour standard, there are no outstanding 1-hour nonattainment area requirements that it would be required to meet under the anti-backsliding requirements. Muskegon was a maintenance area under the 1-hour standard; thus, the conformity requirement is the only relevant anti-backsliding requirement that was at issue before the court. As noted above, EPA approved Michigan's transportation conformity SIP on December 18, 1996 (61 FR 66609). Also, for the reasons set forth above with respect to the areas classified under Subpart 1, EPA believes that having an approved conformity SIP is not an applicable requirement for purposes of redesignation. IV. What Action Is EPA Proposing? Thus, for the reasons discussed above, EPA proposes that the Court's ruling in *South Coast* , whether it stands as initially rendered or is modified based on any petition for rehearing or other further court proceeding, does not alter any requirements applicable for purposes of evaluating the redesignation requests for these areas that would prevent the Agency from finalizing its proposed determinations. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not contain any information collection requirements subject to OMB review under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* It does not contain any recordkeeping or reporting requirements. 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 does 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 control numbers for EPA's regulations are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(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 proposed rule on small entities, 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; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant *adverse* economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This proposed rule sets forth EPA's views on the potential effect of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d. 882 (DC Cir. December 22, 2006) on a number of areas proposed for redesignation of the 8-hour ozone standard. 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 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. The EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. Since this proposed rule does not impose a mandate upon any source, this rule is not estimated to result in the expenditure by State, local and Tribal governments or the private sector of $100 million in any 1 year. Therefore, the Agency has not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most cost-effective, or least burdensome alternative. Because small governments will not be significantly or uniquely affected by this rule, the Agency is not required to develop a plan with regard to small governments. Thus, this proposed rule is not subject to the requirements of sections 202, 203 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 proposed action 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 13132. This proposed action does not impose any new mandates on State or local governments. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on the proposed rule for this action 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 67249, November 6, 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. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. This action does not have any direct effects on Indian Tribes. Thus, Executive Order 13175 does not apply to this proposed rule. The EPA specifically solicits additional comment on this proposed rule from Tribal officials where there are applicable Tribal lands in the affected areas. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children From Environmental Health 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 and safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA 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 EPA. This proposed action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not have reason to believe that the environmental health risks or safety risks addressed by this proposed rule present a disproportionate risk or safety risk to children. This proposed rule sets forth EPA's views regarding the potential effect of a recent Court's ruling, vacating the Phase 1 Ozone Implementation rule, on previously proposed redesignation actions. Furthermore, at the time those actions were proposed in the **Federal Register** , it was determined that Executive Order 13045 did not apply to those actions. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer 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 (e.g., 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, with explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering 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 (59 FR 7629 (Feb. 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 health or environmental protection, but instead merely sets forth EPA's views on the potential effect of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (DC Cir. December 22, 2006) on a number of areas proposed for redesignation of the 8-hour ozone standard. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: March 16, 2007. William L. Wehrum, Acting Assistant Administrator for Air and Radiation. [FR Doc. E7-5352 Filed 3-21-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 86 [OAR-2005-0047; FRL-8290-3] RIN 2060-AL92 Control of Air Pollution From New Motor Vehicles and New Motor Vehicle Engines; Regulations Requiring Onboard Diagnostic Systems on 2010 and Later Heavy-Duty Engines Used in Highway Applications Over 14,000 Pounds; Revisions to Onboard Diagnostic Requirements for Diesel Highway Heavy-Duty Vehicles Under 14,000 Pounds AGENCY: Environmental Protection Agency (EPA). ACTION: Announcement of extension of comment period. SUMMARY: The EPA is announcing an extension of the public comment period within the context of our proposed heavy-duty onboard diagnostics
(OBD)requirements. (72 FR 3200, January 24, 2007) Specifically, we are extending the comment period for comments pertaining to the proposed service information availability requirements for engines used in highway vehicles over 14,000 pounds. These proposed requirements can be found in the proposed § 86.010-38(j). (72 FR 3322) The comment period will be extended from March 26, 2007 to May 4, 2007. We are extending the comment period in response to a request to do so from the Engine Manufacturers Association. DATES: Written comments pertaining to the proposed service information availability requirements of the proposed § 86.010-38(j) must be received on or before May 4, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2005-0047, by one of the following methods: • *http://www.regulations.gov:* Follow the online instructions for submitting comments. • *Mail:* Onboard Diagnostic
(OBD)Systems on 2010 and Later Heavy-Duty Highway Vehicles and Engines, Environmental Protection Agency, *Mailcode:* 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2005-0047. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0047. 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, any form of encryption, and be free of any defects or viruses. *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, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 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 Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: U.S. EPA, National Vehicle and Fuel Emissions Laboratory, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone
(734)214-4405, fax
(734)214-4816, e-mail *sherwood.todd@epa.gov.* SUPPLEMENTARY INFORMATION: What Should I Consider as I Prepare My Comments for EPA? *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. *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 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. Where Can I Get a Copy of This Document and Other Related Information? In addition to being available in the docket, an electronic copy of this notice and an electronic copy of the proposed heavy-duty OBD and associated service information availability requirements can be found at *http://www.epa.gov/obd/regtech/heavy.htm.* The request from the Engine Manufacturers Association to extend the comment period can be found in the docket with the document ID number EPA-HQ-OAR-2005-0047-0016. Dated: March 16, 2007. Margo T. Oge, Director, Office of Transportation and Air Quality. [FR Doc. E7-5266 Filed 3-21-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Parts 20 and 21 RIN 1018-AV15 Migratory Bird Permits; Regulations for Managing Resident Canada Goose Populations AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule. SUMMARY: On August 10, 2006, the U.S. Fish and Wildlife Service (Service or “we”) published a final rule on resident Canada goose management. This proposed rule clarifies and slightly modifies several program requirements regarding eligibility, definitions, methodologies, and dates. DATES: Comments on this proposed rule must be received by April 23, 2007. ADDRESSES: You may submit comments, identified by RIN 1018-AV15, by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *Fax:*
(703)358-2217. *Mail:* Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP 4107, Arlington, Virginia 22203-1610. *Hand Delivery:* Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610. *Instructions:* All submissions received must include Regulatory Information Number
(RIN)1018-AV15 at the beginning. All comments received, including any personal information provided, will be available for public inspection at the address given above for hand delivery of comments. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading in the SUPPLEMENTARY INFORMATION section of this document. You may obtain copies of the Final Environmental Impact Statement
(FEIS)on resident Canada goose management from the above address or from the Division of Migratory Bird Management Web site at *http://fws.gov/migratorybirds/issues/cangeese/finaleis.htm.* FOR FURTHER INFORMATION CONTACT: Robert Blohm, Chief, Division of Migratory Bird Management, or Ron Kokel
(703)358-1714 (see ADDRESSES ). SUPPLEMENTARY INFORMATION: Authority and Responsibility Migratory birds are protected under four bilateral migratory bird treaties the United States entered into with Great Britain (for Canada in 1916 as amended in 1999), the United Mexican States (1936 as amended in 1972 and 1999), Japan (1972 as amended in 1974), and the Soviet Union (1978). Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (16 U.S.C. 703-711), and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712). The Migratory Bird Treaty Act (Act), which implements the above-mentioned treaties, provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and by what means allowing hunting, killing, and other forms of taking of migratory birds, their nests, and eggs is compatible with the conventions. The Act requires the Secretary to implement a determination by adopting regulations permitting and governing those activities. Canada geese are Federally protected by the Act by reason of the fact that they are listed as migratory birds in all four treaties. Because Canada geese are covered by all four treaties, regulations must meet the requirements of the most restrictive of the four. For Canada geese, this is the treaty with Canada. All regulations concerning resident Canada geese are compatible with its terms, with particular reference to Articles VII, V, and II. Each treaty not only permits sport hunting, but permits the take of migratory birds for other reasons, including scientific, educational, propagative, or other specific purposes consistent with the conservation principles of the various Conventions. More specifically, Article VII, Article II (paragraph 3), and Article V of “The Protocol Between the Government of the United States of America and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States” provides specific limitations on allowing the take of migratory birds for reasons other than sport hunting. Article VII authorizes permitting the take, kill, etc., of migratory birds that, under extraordinary conditions, become seriously injurious to agricultural or other interests. Article V relates to the taking of nests and eggs, and Article II, paragraph 3, states that, in order to ensure the long-term conservation of migratory birds, migratory bird populations shall be managed in accord with listed conservation principles. The other treaties are less restrictive. The treaties with both Japan (Article III, paragraph 1, subparagraph (b)) and the Soviet Union (Article II, paragraph 1, subparagraph (d)) provide specific exceptions to migratory bird take prohibitions for the purpose of protecting persons and property. The treaty with Mexico requires, with regard to migratory game birds, only that there be a “closed season” on hunting and that hunting be limited to 4 months in each year. Regulations governing the issuance of permits to take, capture, kill, possess, and transport migratory birds are promulgated in title 50, Code of Federal Regulations (CFR), parts 13 and 21, and issued by the Service. The Service annually promulgates regulations governing the take, possession, and transportation of migratory birds under sport hunting seasons in 50 CFR part 20. Background On August 10, 2006, we published in the **Federal Register** (71 FR 45964) a final rule establishing regulations in 50 CFR parts 20 and 21 authorizing State wildlife agencies, private landowners, and airports to conduct (or allow) indirect and/or direct population control management activities, including the take of birds, on resident Canada goose populations. Since publication of the August 10 rule, several questions and issues have been raised by the public regarding various restrictions and requirements of the new regulations. This proposed rule clarifies and slightly modifies several program requirements regarding eligibility, definitions, methodologies, and dates. Definition of Resident Canada Geese The current definition of resident Canada geese contained in § 20.11 and § 21.3 states that “Canada geese that nest within the lower 48 States in the months of March, April, May, or June, or reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August” are considered resident Canada geese. The proposed change would modify the first portion of this definition by inserting “add the District of Columbia” following the word “States” to clarify that those Canada geese that nest within the District of Columbia in the months of March, April, May, or June, are included. It was not our original intention to exclude them from the definition. Expanded Hunting Methods During September Special Seasons One of the components in the resident Canada goose management program is to provide expanded hunting methods and opportunities to increase the sport harvest of resident Canada geese above that which results from existing September special Canada goose seasons. The regulatory changes in § 20.21(b) and
(g)codified in the August 10 final rule provide State wildlife management agencies and Tribal entities the option of authorizing the use of electronic calls and unplugged shotguns during the first portion of existing, operational September Canada goose seasons (i.e., September 1-15). The August 10 final rule also stated that utilization of these additional hunting methods during any new special seasons or other existing, operational special seasons (i.e., September 16-30) could be approved by the Service and would require demonstration of a minimal impact to migrant Canada goose populations. Further, these seasons would be authorized on a case-by-case basis through the normal migratory bird hunting regulatory process. All of these expanded hunting methods and opportunities must be conducted outside of any other open waterfowl season (i.e., when all other waterfowl and crane hunting seasons were closed). However, the regulatory changes codified in the August 10 final rule did not allow for utilization of these additional hunting methods outside of the September 1-15 period, although this was clearly our intent. We propose to modify § 20.21(b) and
(g)to allow State selection of these expanded hunting methods during the September 16-30 period, when approved in the annual regulatory schedule in subpart K of part 20. Clarification of Airports' Radius Since publication of the August 10 final rule we have received questions regarding interpretation of the 3-mile radius restriction on resident Canada goose activities at airports and military airfields. We propose a change to clarify this restriction by inserting the term “boundary” at the end of the first sentence. Thus, resident Canada goose management activities at airports and military airfields would be restricted to a radius of 3 miles from the airports' boundaries. Eligibility and Participation in the Nest and Egg Depredation Order Currently, § 21.50 authorizes private landowners and managers of public lands to destroy resident Canada goose nests and eggs on property under their jurisdiction when necessary to resolve or prevent injury to people, property, agricultural crops, or other interests. We propose modifying this eligibility to include also homeowners' associations and village, town, municipal, and county governments (collectively termed local governments). Homeowners' associations and local governments would be allowed to register under the nest and egg depredation order and conduct nest and egg destruction anywhere within their jurisdiction, provided that they have landowner permission to conduct such activities. Our proposal is based on several factors. First, we currently issue individual depredation permits allowing resident Canada goose nest and egg destruction to these groups, particularly in the northeastern United States. We believe the extension of eligibility to these groups to operate under the nest and egg depredation order is not outside the intent of the depredation order, is formalization of an already established practice under our permit system, and is simply an administrative modification. Second, since the publication of the August 10 rule, we have received numerous public comments requesting this modification. Modification of this requirement would help ensure public satisfaction and satisfy our original objective of providing affected States and the public with flexibility sufficient to deal with the problems caused by resident Canada geese. Lastly, since local governments are in an obvious position of local authority and jurisdiction, we believe they are a logical extension of our existing landowner definition. The proposed changes would include referring to these persons and entities collectively as “registrants.” Necessary conforming changes in a number of subsections also would be made. Nest and Egg Destruction Methodologies Under Section 21.50 We propose to modify the approved methodologies for nest and egg destruction under the depredation order for resident Canada geese nests and eggs in § 21.50(d)(3). Currently, the regulations state that eggs may be oiled or eggs and nest material may be removed and disposed of. All of the other depredation and control orders pertaining to resident Canada geese (§§ 21.49, 21.51, and 21.52) allow egg oiling and egg and nest destruction. We believe the latter language is more comprehensive and includes such methodologies as egg addling (egg shaking), puncturing, and egg replacement. It was not our intent to be more restrictive regarding nest and egg destruction methodologies under the nest and egg depredation order than the other resident Canada goose depredation and control orders or what we currently allow on permits allowing nest and egg destruction. We believe this modification is minor in nature, satisfies numerous public requests for clarification and alignment, simplifies restrictions, and maintains the original intent of the regulation. Web Address Under Section 21.50 We have modified the Web address for registering and submitting annual reports of the take of nests and eggs under the depredation order for resident Canada geese nests and eggs in § 21.50(d)(1) and (6). Applicable Dates of Section 21.61 Population Control We have corrected § 21.61(d)(2) to read “August 31” rather than “August 30.” This was strictly an oversight. Public Participation You may submit written comments on this proposal to the location identified in the ADDRESSES section, or you may submit electronic comments to the Internet address listed in the ADDRESSES section. We must receive your comments before the date listed in the DATES section. Following review and consideration of comments, we will issue a final rule on the proposed regulation changes. When submitting electronic comments, please include your name and return address in your message, identify it as comments on the resident Canada goose management regulations change, and submit your comments as an ASCII file. Include RIN 1018-AV15 in the subject line of your message. Do not use special characters or any encryption. When submitting written comments, please include your name and return address in your letter and identify it as comments on the resident Canada goose management regulations change, RIN 1018-AV15. You must submit written comments on 8 1/2 -inch-by-11-inch paper. All comments on the proposed rule will be available for public inspection during normal business hours at Room 4091 at the Fish and Wildlife Service, Division of Migratory Bird Management, 4501 North Fairfax Drive, Arlington, Virginia 22203-1610. 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. NEPA Considerations In compliance with the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR 1500-1508), we published the availability of a DEIS on March 7, 2002 (67 FR 10431), followed by a 91-day comment period. We subsequently reopened the comment period for 60 additional days (68 FR 50546, August 21, 2003). On November 18, 2005, both the Service and the Environmental Protection Agency published notices of availability for the FEIS in the **Federal Register** (70 FR 69966 and 70 FR 69985). On August 10, 2006, we published our Record of Decision
(ROD)in the **Federal Register** (71 FR 45964). The FEIS is available to the public (see ADDRESSES ). The proposed changes to the resident Canada goose regulations fall within the scope of the FEIS. Endangered Species Act Consideration Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1531-1543; 87 Stat. 884) provides that “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat * * *.” We completed a biological evaluation and informal consultation (both available upon request; see ADDRESSES ) under Section 7 of the ESA for the action described in the August 10 final rule. In the letter of concurrence between the Division of Migratory Bird Management and the Division of Endangered Species, we concluded that the inclusion of specific conservation measures in the final rule satisfied concerns about certain species and that the action was not likely to adversely affect any threatened, endangered, or candidate species. Prior to issuance of any final rule on these proposed modifications, we will comply with provisions of the ESA, to ensure that these proposed modifications and clarifications are not likely to adversely affect any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species. As such, we have requested a letter of concurrence from the Division of Endangered Species on these proposed changes. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 *et seq.* ) requires the preparation of flexibility analyses for actions that will have a significant economic impact on a substantial number of small entities, which includes small businesses, organizations, or governmental jurisdictions. We discussed these impacts in the August 10 final rule. For the reasons detailed in that rule, we have determined that a Regulatory Flexibility Act analysis is not required. Executive Order 12866 In accordance with the criteria in Executive Order 12866, this action is not a significant regulatory action subject to Office of Management and Budget
(OMB)review. This rule will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. The Federal agency most interested in this action is Wildlife Services. The action is consistent with the policies and guidelines of other Department of the Interior bureaus. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This action will not raise novel legal or policy issues because we have previously managed resident Canada geese under the Migratory Bird Treaty Act. 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. It will not have an annual effect on the economy of $100 million or more; nor will it cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will 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. Paperwork Reduction Act and Information Collection This proposed rule does not contain any new information collection or recordkeeping requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). OMB has approved and assigned control number 1018-0133, which expires on 08/31/2009, to the regulations concerning the control and management of resident Canada geese. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 requires agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. The purpose of the act is to strengthen the partnership between the Federal Government and State, local, and tribal governments and to end the imposition, in the absence of full consideration by Congress, of Federal mandates on these governments without adequate Federal funding, in a manner that may displace other essential governmental priorities. We have determined, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 *et seq.* , that this action will not “significantly or uniquely” affect small governments, and will not produce a Federal mandate of $100 million or more in any given year on local or State government or private entities. Therefore, this action is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Civil Justice Reform—Executive Order 12988 We have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity, has been written to minimize litigation, provides a clear legal standard for affected conduct, and specifies in clear language the effect on existing Federal law or regulation. We do not anticipate that this rule will require any additional involvement of the justice system beyond enforcement of provisions of the Migratory Bird Treaty Act of 1918 that have already been implemented through previous rulemakings. Takings Implication Assessment In accordance with Executive Order 12630, this action, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This action will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this action will help alleviate private and public property damage and concerns related to public health and safety and allow the exercise of otherwise unavailable privileges. Federalism Effects Due to the migratory nature of certain species of birds, the Federal Government has been given statutory responsibility over these species by the Migratory Bird Treaty Act. While legally this responsibility rests solely with the Federal Government, it is in the best interest of the migratory bird resource for us to work cooperatively with the Flyway Councils and States to develop and implement the various migratory bird management plans and strategies. The August 10 final rule and this proposed rule were developed following extensive input from the Flyway Councils, States, and Wildlife Services. Individual Flyway management plans were developed and approved by the four Flyway Councils, and States actively participated in the scoping process for the DEIS. This rule does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. The rule allows States the latitude to develop and implement their own resident Canada goose management action plan within the frameworks of the selected alternative. Therefore, in accordance with Executive Order 13132, this rule does not have significant federalism effects and does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have determined that this rule has no effects on Federally-recognized Indian tribes. Energy Effects—Executive Order 13211 On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866 and is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. List of Subjects in 50 CFR Parts 20 and 21 Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife. For the reasons stated in the preamble, we hereby propose to amend parts 20 and 21, of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 20—[AMENDED] 1. The authority citation for part 20 continues to read as follows: Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Pub. L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703. 2. Amend § 20.11 by revising paragraph
(n)to read as follows: § 20.11 What terms do I need to understand?
(n)*Resident Canada geese* means Canada geese that nest within the lower 48 States and the District of Columbia in the months of March, April, May, or June, or reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August. 3. Revise paragraphs
(b)and
(g)of § 20.21 to read as follows: § 20.21 What hunting methods are illegal?
(b)With a shotgun of any description capable of holding more than three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the gun, so its total capacity does not exceed three shells. However, this restriction does not apply during:
(1)A light-goose-only season (greater and lesser snow geese and Ross' geese) when all other waterfowl and crane hunting seasons, excluding falconry, are closed while hunting light geese in Central and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.
(2)A Canada goose only season when all other waterfowl and crane hunting seasons, excluding falconry, are closed in the Atlantic, Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming, as set forth below:
(i)During the period of September 1 to September 15; and
(ii)During the period of September 16 to September 30, when approved in the annual regulatory schedule in subpart K of this part.
(g)By the use or aid of recorded or electrically amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds. However, this restriction does not apply during:
(1)A light-goose-only season (greater and lesser snow geese and Ross' geese) when all other waterfowl and crane hunting seasons, excluding falconry, are closed while hunting light geese in Central and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.
(2)A Canada goose only season when all other waterfowl and crane hunting seasons, excluding falconry, are closed in the Atlantic, Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming, as set forth below:
(i)During the period of September 1 to September 15; and
(ii)During the period of September 16 to September 30, when approved in the annual regulatory schedule in subpart K of this part. PART 21—[AMENDED] 4. The authority citation for part 21 continues to read as follows: Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703); Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703. 5. In subpart A, amend § 21.3 by revising the definition for “Resident Canada geese” to read as follows: § 21.3 Definitions. *Resident Canada geese* means Canada geese that nest within the lower 48 States and the District of Columbia in the months of March, April, May, or June, or reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August. 6. In subpart D, amend § 21.49 by revising paragraph (d)(5) to read as follows: § 21.49 Control order for resident Canada geese at airports and military airfields.
(d)* * *
(5)Resident Canada geese may be taken only within a 3-mile radius of the airport's or military airfield's boundary. Airports and military airfields or their agents must first obtain all necessary authorizations from landowners for all management activities conducted outside the airport or military airfield's boundaries and be in compliance with all State and local laws and regulations. 7. In subpart D, amend § 21.50 by revising paragraphs (b), (c), (d)(1) through (d)(7), the introductory text of (d)(8), and
(e)to read as follows: § 21.50 Depredation order for resident Canada geese nests and eggs.
(b)*What is the depredation order for resident Canada geese nests and eggs, and what is its purpose?* The nest and egg depredation order for resident Canada geese authorizes private landowners and managers of public lands (landowners); homeowners' associations; and village, town, municipality, and county governments (local governments); (and the employees or agents of any of these persons or entities) to destroy resident Canada goose nests and eggs on property under their jurisdiction when necessary to resolve or prevent injury to people, property, agricultural crops, or other interests.
(c)*Who may participate in the depredation order?* Only landowners, homeowners' associations, and local governments (and their employees or their agents) in the lower 48 States and the District of Columbia are eligible to implement the resident Canada goose nest and egg depredation order.
(d)* * *
(1)Before any management actions can be taken, landowners, homeowners' associations, and local governments must register with the Service at *https://epermits.fws.gov/eRCGR.* Landowners, homeowners' associations, and local governments (collectively termed “registrants”) must also register each employee or agent working on their behalf. Once registered, registrants and agents will be authorized to act under the depredation order.
(2)Registrants authorized to operate under the depredation order must use nonlethal goose management techniques to the extent they deem appropriate in an effort to minimize take.
(3)Methods of nest and egg destruction or take are at the registrant's discretion from among the following:
(i)Egg oiling, using 100 percent corn oil, a substance exempted from regulation by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, and
(ii)Egg and nest destruction, including but not limited to the removal and disposal of eggs and nest material.
(4)Registrants may conduct resident Canada goose nest and egg destruction activities between March 1 and June 30. Homeowners' associations and local governments or their agents must obtain landowner consent prior to destroying nests and eggs on private property within the homeowners' association or local government's jurisdiction and be in compliance with all State and local laws and regulations.
(5)Registrants authorized to operate under the depredation order may possess, transport, and dispose of resident Canada goose nests and eggs taken under this section. Registrants authorized to operate under the program may not sell, offer for sale, barter, or ship for the purpose of sale or barter any resident Canada goose nest or egg taken under this section.
(6)Registrants exercising the privileges granted by this section must submit an annual report summarizing activities, including the date, numbers, and location of nests and eggs taken by October 31 of each year at *https://epermits.fws.gov/eRCGR* before any subsequent registration for the following year.
(7)Nothing in this section authorizes the destruction of resident Canada goose nests or the take of resident Canada goose eggs contrary to the laws or regulations of any State or Tribe, and none of the privileges of this section may be exercised unless the registrant is authorized to operate under the program and possesses the appropriate State or Tribal permits, when required. Moreover, this section does not authorize the killing of any migratory bird species or destruction of their nest or eggs other than resident Canada geese.
(8)Registrants may not undertake any actions under this section if the activities adversely affect species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this order must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, registrants must:
(e)*Can the depredation order be suspended?* We reserve the right to suspend or revoke this authorization for a particular landowner, homeowners' association, or local government if we find that the registrant has not adhered to the terms and conditions specified in the depredation order. Final decisions to revoke authority will be made by the appropriate Regional Director. The criteria and procedures for suspension, revocation, reconsideration, and appeal are outlined in §§ 13.27 through 13.29 of this subchapter. For the purposes of this section, “issuing officer” means the Regional Director and “permit” means the authority to act under this depredation order. For purposes of § 13.29(e), appeals must be made to the Director. Additionally, at such time that we determine that resident Canada goose populations no longer need to be reduced in order to resolve or prevent injury to people, property, agricultural crops, or other interests, we may choose to terminate part or all of the depredation order by subsequent regulation. In all cases, we will annually review the necessity and effectiveness of the depredation order. 8. In subpart E, amend § 21.61 by revising paragraph (d)(2) to read as follows: § 21.61 Population control of resident Canada geese.
(d)* * *
(2)Control activities may be conducted under this section only between August 1 and August 31. Dated: March 6, 2007. David M. Verhey, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E7-5199 Filed 3-21-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No. 070125020-7020-01; I.D. 010907A] RIN 0648-AV15 Protective Regulations for Killer Whales in the Northwest Region under the Endangered Species Act and Marine Mammal Protection Act AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Advance notice of proposed rulemaking. SUMMARY: We, the National Marine Fisheries Service (NMFS), listed the Southern Resident killer whale distinct population segment
(DPS)as endangered under the Endangered Species Act
(ESA)on November 18, 2005. In the final rule announcing the listing, we identified vessel effects, including direct interference and sound, as a potential contributing factor in the recent decline of this population. Both the Marine Mammal Protection Act
(MMPA)and the ESA prohibit take, including harassment, of killer whales, but these statutes do not prohibit specified acts. We are considering whether to propose regulations that would prohibit certain acts, under our general authorities under the ESA and MMPA and their implementing regulations. The Proposed Recovery Plan for Southern Resident killer whales (published November 29, 2006) includes as a management action the evaluation of current guidelines and the need for regulations and/or protected areas. The scope of this advance notice of proposed rulemaking
(ANPR)encompasses the activities of any person or conveyance that may result in the unauthorized taking of killer whales and/or that may cause detrimental individual-level and population-level impacts. NMFS requests comments on whether—and if so, what type of—conservation measures, regulations, or other measures would be appropriate to protect killer whales from the effects of these activities. DATES: Comments must be received at the appropriate address (see ADDRESSES ) no later than June 20, 2007. Public meetings have been scheduled for April 18, 2007, 2-4 p.m. in The Grange Hall, Friday Harbor, WA and April 19, 2007, 7-9 p.m. at the Seattle Aquarium, Seattle, WA. Requests for additional public meetings must be made in writing by April 23, 2007. ADDRESSES: You may submit comments by any of the following methods: • E-mail: *orca.plan@noaa.gov* . • Federal e-rulemaking Portal: *http://www.regulations.gov* . • Mail: Assistant Regional Administrator, Protected Resources Division, Northwest Regional Office, National Marine Fisheries Service, 7600 Sand Point Way NE, Seattle, WA 98115. FOR FURTHER INFORMATION CONTACT: Lynne Barre, Northwest Regional Office, 206-526-4745; or Trevor Spradlin, Office of Protected Resources, 301-713-2322. SUPPLEMENTARY INFORMATION: Background Viewing wild marine mammals is a popular recreational activity for both tourists and locals. In Washington, killer whales ( *Orcinus orca* ) are the principal target species for the commercial whale watch industry—easily surpassing other species, such as gray whales ( *Eschrichtius robustus* ), porpoises, and pinnipeds (Hoyt, 2001). NMFS is concerned that some whale watch activities may cause unauthorized taking of killer whales or cause detrimental individual-level and population-level impacts. Killer whales in the eastern North Pacific have been classified into three forms, or ecotypes, termed residents, transients, and offshore whales. Resident killer whales in the North Pacific consist of the following groups: Southern, Northern, Southern Alaska (includes Southeast Alaska and Prince William Sound whales), Western Alaska, and Western North Pacific Residents. The Southern Resident killer whale population contains three pods—J pod, K pod, and L pod and was designated as a depleted stock under the MMPA and listed as endangered under the ESA. During the spring, summer, and fall, the Southern Residents' range includes the inland waterways of Puget Sound, Strait of Juan de Fuca, and Southern Strait of Georgia. Their occurrence in the coastal waters off Oregon, Washington, Vancouver Island, and more recently off the coast of central California in the south and off the Queen Charlotte Islands to the north has been documented. Little is known about the winter movements and range of Southern Residents. Scientific studies have documented human disturbance of Southern Resident killer whales by vessels engaged in whale watching in the inland waters of Washington. Short-term behavioral changes in Northern and Southern Residents have been observed and studied by several researchers (Kruse, 1991; Kriete, 2002; Williams *et al.* , 2002a, 2002b, 2006; Foote *et al.* , 2004; Bain *et al.* , 2006), although it is not well understood whether it is the presence and activity of the vessel, the sounds the vessel makes, or a combination of these factors that disturbs the animals. Individual animals can react in a variety of different ways to whale watching, including swimming faster, adopting less predictable travel paths, making shorter or longer dive times, moving into open water, and altering normal patterns of behavior at the surface (Kruse, 1991; Williams *et al.* , 2002a; Bain *et al.* , 2006). High frequency sound generated from recreational and commercial vessels moving at high speed in the vicinity of whales may mask echolocation and other signals the species rely on for foraging, communication (Foote *et al.* , 2004) and navigation. In rare instances, killer whales are injured or killed by collisions with passing ships and powerboats, primarily from being struck by the turning propeller blades (Visser, 1999c; Ford *et al.* , 2000; Visser and Fertl, 2000; Baird, 2001; Carretta *et al.* , 2001, 2004). Some animals with severe injuries eventually make full recoveries, such as a female described by Ford *et al.*
(2000)that showed healed wounds extending almost to her backbone. One resident whale mortality from a vessel collision was previously reported for Washington and British Columbia from the 1960s to 1990s (Baird, 2002). However, two additional mortalities have recently been reported. In March of 2006 the lone Southern Resident killer whale, L98, residing in Nootka Sound for several years was killed by a tug boat. While L98 exhibited unusual behavior and often interacted with vessels, his death demonstrates the risk of vessel accidents. In July 2006, the death of a stranded Northern Resident female was attributed to blunt trauma, probably from a vessel strike (M. Joyce, pers. comm.) Five additional accidents between vessels and killer whales have been documented in the region since the 1990s (Baird, 2001; DFO, unpubl. data, NMFS, unpubl. data). One took place on the Washington side of Haro Strait in 1998 and involved a slow moving boat that apparently did not injure the whale. In 1995, a Northern Resident was struck by a speedboat, causing a wound to the dorsal fin that quickly healed. Another Northern Resident was injured by a high-speed boat in 2003, but also recovered. A 2005 collision of a Southern Resident with a commercial whale watch vessel resulted in a minor injury to the whale, which subsequently healed. An additional Northern Resident calf was struck by a vessel in July 2006. We are concerned about the potential for individual-level and population-level effects because of vessel activities. Vessel effects were identified as a factor in the ESA listing of the Southern Residents and are addressed in the recovery plan which is available on our web page at *http://www.nwr.noaa.gov/* . NMFS has received an increasing number of complaints from the public alleging that killer whales in the core summer area along the west side of San Juan Island are routinely being disturbed by people attempting to closely approach and interact with the whales by vessel (motor powered or kayak). Concerns have been expressed by the U.S. Marine Mammal Commission, as well as members of the scientific community, researchers, wildlife conservation organizations, and some commercial tour operators. Current MMPA and ESA Prohibitions and NMFS Guidelines and Regulations The Marine Mammal Protection Act, 16 U.S.C. 1361 *et seq.* , contains a general prohibition on take of marine mammals. Section 3(13) of the MMPA defines the term take as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” Except with respect to military readiness activities and certain scientific research activities, the MMPA defines the term harassment as “any act of pursuit, torment, or annoyance which—(i) has the potential to injure a marine mammal or marine mammal stock in the wild, [Level A harassment]; or
(ii)has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].” In addition, NMFS regulations implementing the MMPA further describe the term take to include: “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild” (50 CFR 216.3). The MMPA provides limited exceptions to the prohibition on take for activities such as scientific research, public display, and incidental take in commercial fisheries. Such activities require a permit or authorization, which may be issued only after a thorough agency review. The ESA generally prohibits the taking of endangered species. The ESA defines take to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Both the ESA and MMPA require wildlife viewing to be conducted in a manner that does not cause take. NMFS has regulated close vessel approaches to large whales in Hawaii, Alaska, and the North Atlantic. In 1995, NMFS published a final rule to establish a 100-yard (91.4-m) approach limit for humpback whales in Hawaii (60 FR 3775, January 19, 1995). In 2001, NMFS published a final rule (66 FR 29502, May 31, 2001) to establish a 100-yard (91.4-m) approach limit for humpback whales in Alaska that included a speed limit for when a vessel is near a whale. In 1997, an interim final rule was published to prohibit approaching critically endangered North Atlantic right whales closer than 500 yards (457.2 m) (62 FR 6729, February 13, 1997). In addition to these specific regulations, NMFS has provided general guidance for wildlife viewing that does not cause take. This is consistent with the philosophy of responsible wildlife viewing advocated by many federal and state agencies to unobtrusively observe the natural behavior of wild animals in their habitats without causing disturbance (see *http://www.watchablewildlife.org/.* Each of the six NMFS Regions has developed recommended viewing guidelines to educate the general public on how to responsibly view marine mammals in the wild and avoid causing a take. These guidelines are available on line at: *http://www.nmfs.noaa.gov/prot_res/* *MMWatch/MMViewing.html* The “Be Whale Wise” guidelines developed for marine mammals by the NMFS Northwest Regional Office and partners are also available at: *http://www.nwr.noaa.gov/Marine-Mammals/* *upload/BeWhaleWise.pdf* Be Whale Wise is a transboundary effort to develop and revise guidelines for viewing marine wildlife. NMFS has partnered with commercial operators, whale advocacy groups, U.S. and Canadian government agencies and enforcement divisions over the past several years to promote safe and responsible wildlife viewing practices through the development of outreach materials, training workshops, on-water education and public service announcements. The 2006 version of the Be Whale Wise guidelines recommends that boaters parallel whales no closer than 100 yards (91.4 m), approach animals slowly from the side rather than from the front or rear, and avoid putting the vessel within 400 yards (365 m) in front of or behind the whales. Vessels are also recommended to reduce their speed to less than 7 knots (13 km/h) within 400 meters of the whales, and to remain on the outer side of the whales near shore. Two voluntary no-boat areas off San Juan Island are recognized by San Juan County although this is separate from the Be Whale Wise guidelines. The first is a 1/2 -mile (800 m)-wide zone along a 3-km stretch of shore centered on the Lime Kiln lighthouse. The second is a 1/4-mile (400 m)-wide zone along much of the west coast of San Juan Island from Eagle Point to Mitchell Point. These areas were established to facilitate shore-based viewing and to reduce vessel presence in an area used by the whales for feeding, traveling, and resting. NMFS supports the Soundwatch program, an on-water stewardship and monitoring group, to promote the Be Whale Wise guidelines and monitor vessel activities in the vicinity of whales. Soundwatch reports (Koski, 2004, 2006) characterize trends in incidents when the guidelines are not followed and there is the potential for disturbance of the whales. Incidents are frequently observed involving both recreational and commercial whale watching vessels. Soundwatch also serves as a crucial education component, providing information on the viewing guidelines to boaters that are approaching areas with whales. Despite the regulations, guidelines and outreach efforts, interactions between vessels and killer whales continue to occur in the waters of Puget Sound and the Georgia Basin. Advertisements on the Internet and in local media in the Pacific Northwest promote activities that appear inconsistent with what is recommended in the NMFS guidelines. NMFS has received letters from the Marine Mammal Commission, members of the scientific research community, environmental groups, and members of the general public expressing the view that some types of interactions with wild marine mammals have the potential to harass and/or disturb the animals by causing injury or disruption of normal behavior patterns. NMFS has also received inquiries from members of the public and commercial tour operators requesting clarification of NMFS' policy on these matters. In 2002, NMFS published an ANPR requesting comments from the public on what types of regulations and other measures would be appropriate to prevent harassment of marine mammals in the wild caused by human activities directed at the animals (67 FR 4379, January 30, 2002). The 2002 ANPR was national in scope and covered all species of marine mammals under NMFS' jurisdiction (whales, dolphins, porpoises, seals and sea lions), and requested comments on ways to address concerns about the public and commercial operators closely approaching, swimming with, touching or otherwise interacting with marine mammals in the wild. Several potential options were proposed for consideration and comment, including:
(1)codifying the current NMFS Regional marine mammal viewing guidelines into regulations;
(2)codifying the guidelines into regulations with additional improvements;
(3)establishing minimum approach regulations similar to the ones for humpback whales in Hawaii and Alaska and North Atlantic right whales; and
(4)restricting activities of concern similar to the MMPA regulation prohibiting the public from feeding or attempting to feed wild marine mammals. The 2002 ANPR specifically mentioned the complaints received from researchers and members of the public concerning close vessel approaches to killer whales in the Northwest. Over 500 comments were received on the 2002 ANPR regarding human interactions with wild marine mammals in United States waters and along the nation's coastlines. Request for Information and Comments NMFS is requesting information and comments on whether — and if so, what type of — conservation measures, regulations, or other measures would be appropriate to protect killer whales in inland waters of Washington from human activities that result in the unauthorized taking of killer whales and/or that may cause detrimental individual-level and population-level impacts. NMFS has received input on potential measures to address vessel impacts during the ESA listing and recovery planning process. Suggestions included regulations governing all vessels (including aircraft) or only commercial whale watch vessels. Suggestions included a moratorium on all whale watching, prohibiting whale watching for one or more days per week, developing a permit program for commercial operators, and requiring whale watch vessels to purchase and install Vessel Monitoring System
(VMS)equipment to allow for monitoring their activities. Based on the comments received, and the regulations implemented for other marine mammals, NMFS has developed a preliminary list of options for consideration and comment: *Codify the current Be Whale Wise marine mammal viewing guidelines* - Codifying the guidelines, in whole or in part, as regulations would make them requirements rather than recommendations, and would allow enforcement of these provisions and penalties for violations. *Establish minimum approach rule* - Similar to the minimum approach rules for humpback whales in Hawaii and Alaska, and right whales in the North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit could be established by regulation to accommodate killer whale viewing opportunities while minimizing the potential detrimental impacts from humans. If establishing a minimum approach rule is appropriate, then we would have to consider whether the current guideline of 100 yards (approximately 100 m) is appropriate for this regulation. We would consider exceptions for situations in which marine mammals approach vessels as well as other situations in which approach is not reasonably avoidable. *Prohibit vessel activities of concern* - The current guidelines address specific activities of concern. A regulation could prohibit vessel operators from engaging in these activities or others of concern. Activities of concern include using vessels to herd whales, surrounding whales or otherwise preventing a reasonable means of escape, leapfrogging whales or positioning a vessel in their predictable path, separating calves from attending adults, approaching whales at or above specified speeds, or running a vessel through a group of whales. *Establish time-area closures* - Similar to the prohibitions used to protect fish stocks or habitat, we could establish a regulation restricting human access to specific areas. These restrictions could restrict all human entry to the area or restrict only specified acts within an area; they could be full-time or limited to certain seasons when killer whales are likely to be present; or a closure could be any combination of the above. *Operator permit or certification program* - We could adopt approach rules or establish closed areas that applied to all vessels except those operated under a whale watching permit or certification. Issuance of a permit or certification could be based on the operator's knowledge of whale behavior and proper procedures for operating vessels around whales. A permit or certification could allow the whale watch operator to get closer to the whales than those who do not have one. For example, a general approach limit of 200 m could be implemented for all non-permitted or uncertified operators, and only operators who are permitted or certified would be allowed to approach to 100 m of the whales. Sanctions, up to and including loss of permit or certification for noncompliance with applicable regulations, would be possible. The issuance of permits or certifications could be directly related to an assessment of the appropriate level of whale watching in Puget Sound. This would require us to evaluate the current level of whale watching effort and limit the maximum number of vessels that can be engaged in whale watching activity. The limit could be adjusted based on monitoring and ongoing evaluation of what is appropriate to protect the whales. We recognize that the most appropriate regulations may be some combination of the above measures, or that additional possibilities may exist. Regulations adopted under the MMPA could apply to all three killer whale ecotypes - residents, transients, and offshores. To the average wildlife viewer, these whales are difficult to differentiate between visually, and all three could potentially be found in the inland waters of Washington State where whale watching occurs. The geographic scope of regulations, if proposed, would likely be the inland waters of the State of Washington, since this is where vessel interactions are concentrated. The coastal waters off Washington and Oregon do not currently have a significant level of documented vessel interactions, and the small number of killer whale sightings in these areas makes it unlikely that they will develop whale watching operations at significant levels in the future. NMFS invites information and comment from the public on the advisability of regulations, on the above options, and on other possible measures that will help the agency decide what type of regulations, if any, would be most appropriate to consider for protecting killer whales in the Pacific Northwest. In particular, we are seeking information and comments concerning:
(1)The advisability of and need for regulations;
(2)The geographic scope of regulations;
(3)Management options for regulating vessel interactions with killer whales, including but not limited to the options listed in this notice;
(4)Scientific and commercial information regarding the effects of vessels on killer whales and their habitat;
(5)Information regarding potential economic effects of regulating vessel interactions; and
(6)Any additional relevant information that NMFS should consider should it undertake rulemaking. You may submit information and comments concerning this ANPR by any one of several methods (see ADDRESSES ). Materials related to this notice can be found on the NMFS Northwest Region Web site at *http://www.nwr.noaa.gov/* . We will consider all comments and information received during the comment period in preparing a proposed rule. References Cited A complete list of all references cited in this advanced notice of proposed rulemaking can be found on our Web site at *http://www.nwr.noaa.gov* / and is available upon request from the NMFS office in Seattle, Washington (see ADDRESSES ). Public Hearings Based on the level of interest in killer whales and whale watching, public meetings have been scheduled for April 18, 2007, 2-4 p.m. in The Grange Hall, Friday Harbor, WA and April 19, 2007, 7-9 p.m. at the Seattle Aquarium, Seattle, WA. Requests for additional public hearings or special accommodations must be made in writing (see ADDRESSES ) by April 23, 2007. Classification This ANPR was determined to be significant for purposes of E.O. 12866. Dated: March 15, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E7-5262 Filed 3-21-07; 8:45 am] BILLING CODE 3510-22-S 72 55 Thursday, March 22, 2007 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Public Information Collection Requirements Submitted to OMB for Review SUMMARY: U.S. Agency for International Development (USAID) has submitted the following information collections to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding this information collection are best assured of having their full effect if received within 30 days of this notification. Comments should be sent via e-mail to *David_Rostker@ omb.eop.gov* or fax to 202-395-7285. Copies of submission may be obtained by calling
(202)712-1365. SUPPLEMENTARY INFORMATION: *OMB Number:* OMB 0412-0565. *Form Number:* N/A. *Title:* Certification Agreement. *Type of submissions:* Reinstatement. *Purpose:* The United States Agency for International Development (USAID) needs to require applicants for assistance to certify that it does not and will not engage in financial transactions with, and does not and will not provide material support and resources to individuals or organizations that engage in terrorism. The purpose of this requirement is to assure that USAID does not directly provide support to such organizations or individuals, and to assure that recipients are aware of these requirements when it considers individuals or organizations are subrecipients. *Annual reporting burden:* *Respondents:* 2,000. *Total annual responses:* 4,000. *Total annual hours requested:* 1,500. Dated: March 15, 2007. Joanne Paskar, Chief, Information and Records Division, Office of Administrative Services, Bureau for Management. [FR Doc. 07-1399 Filed 3-21-07; 8:45 am]
Connectionstraces to 57
Traces to 57 documents
U.S. Code
63 references not yet in our index
  • 7 CFR 301
  • 7 CFR 301.75-1
  • 7 CFR 3015
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • Pub. L. 106-113
  • Pub. L. 106-224
  • 114 Stat. 400
  • 9 CFR 78
  • 7 USC 8301-8317
  • 12 CFR 563
  • Pub. L. 104-4
  • 14 CFR 23
  • 14 CFR 34
  • 14 CFR 36
  • 14 CFR 71
  • 1 CFR 51
  • 15 CFR 774
  • 15 CFR 740
  • Pub. L. 106-387
  • 15 CFR 748
  • 10 USC 7430(e)
  • Pub. L. 107-56
  • 18 CFR 382
  • 473 F.3d 1239
  • 11 F.3d 207
  • 468 F.3d 831
  • 88 F.3d 1105
  • 824 F.2d 981
  • 40 CFR 60
  • 40 CFR 281
  • Pub. L. 104-113
  • 14 CFR 39
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
+ 23 more
Citation graph
cites case law
Unknown
Interim rule and request for comments
U.S.C.§ 553
Fed. Reg.Notices
Fed. Reg.Notices
Fed. Reg.Notices
U.S.C.§ 3501
U.S.C.§ 1421
U.S.C.§ 2903
U.S.C.§ 2801
U.S.C.§ 2808
F. App'x473 F.3d 1239
F. App'x11 F.3d 207
F. App'x468 F.3d 831
Cites 120 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.