Rules and Regulations. Final rule; technical amendments

68,567 words·~312 min read·/register/2007/03/28/07-1485

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

Technical Amendment to Regulation S-T AGENCY: Securities and Exchange Commission. ACTION: Final rule; technical amendments. SUMMARY: The Securities and Exchange Commission (“Commission”) is amending Regulation S-T to make a correction with respect to mandated electronic submissions and to include persons or entities that submit filings for review by the Division of Market Regulation as persons or entities that are subject to the electronic filing requirements of Regulation S-T.

The amendment will clarify that a filing submitted on an electronic filing system other than the Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) system is not a mandated submission under Regulation S-T and will clarify that filers who submit forms on EDGAR for review by the Division of Market Regulation are subject to the requirements of Regulation S-T. The Commission is also amending the Rules of Organization and Program Management to delegate authority to the Director of the Division of Market Regulation to adjust the filing date of an electronic submission and to grant or deny a continuing hardship exemption from electronic filing under Regulation S-T.

The amendment will conserve Commission resources and will allow the Commission to make such adjustments and to grant or deny such exemptions in a timely manner. DATES: *Effective Date:* April 27, 2007. FOR FURTHER INFORMATION CONTACT: Jerry Carpenter, Assistant Director, or Catherine Moore, Special Counsel,

(202)551-5710, Division of Market Regulation, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6628. SUPPLEMENTARY INFORMATION: I. Background On October 4, 2004, the Securities and Exchange Commission (“Commission”) adopted an amendment to Rule 19b-4 1 to require that Form 19b-4 2 be filed electronically on the Commission's Electronic Form 19b-4 Filing System (“EFFS”). 3 At the same time, the Commission amended Rule 101(a) of Regulation S-T 4 to mandate that Form 19b-4 be submitted to the Commission in electronic format and amended Rule 101(c)(9) of Regulation S-T to except Form 19b-4 from the requirement that filings submitted to the Division of Market Regulation be submitted in paper format. However, Regulation S-T only applies to electronic filings that are submitted on EDGAR, and Form 19b-4 is not submitted through EDGAR. As a result, Rules 101(a) and 101(c)(9) of Regulation S-T should not have been amended with respect to Form 19b-4. The Commission is making a technical amendment to remove the reference to Form 19b-4 in Rule 101(a) and to revise Rule 101(c)(9) to clarify that forms submitted for review by the Division of Market Regulation electronically, whether on EDGAR or on another electronic filing system such as EFFS, do not have to be submitted in paper format. 1 17 CFR 240.19b-4. 2 17 CFR 249.819. 3 Securities Exchange Act Release No. 50486, 69 FR 60287 (October 8, 2004) [File No. S7-18-04]. 4 17 CFR 232 *et seq.* Additionally, the Commission is making a technical amendment to Rule 100 of Regulation S-T to include persons or entities that submit filings for review by the Division of Market Regulation as persons and entities that are subject to the electronic filing requirements of Regulation S-T. Because the EDGAR system was initially designed for the electronic submission of documents that are subject to review by the Divisions of Corporation Finance and Investment Management, Rule 100 currently only applies to registrants whose filings are submitted for review by those divisions and to such registrant's joint or third party filers. To reflect the fact that the Commission has recently added Forms 25, TA-1, TA-2, and TA-W, which are submitted for review by the Division of Market Regulation, to the list of mandated electronic filings in Section 101(a) of Regulation S-T, the Commission is amending Rule 100 to include the filers of any other forms that are submitted through EDGAR for review by the Division of Market Regulation as persons or entities that are subject to the electronic filing requirements of Regulation S-T. The Commission is amending Rule 30-3 of the Rules of Organization and Program Management 5 to add new paragraphs

(j)and

(k)to delegate to the Director of the Division of Market Regulation authority to grant or deny a request submitted under Regulation S-T to adjust the filing date of an electronic filing and to grant or deny, as appropriate, a continuing hardship exemption to an electronic filer under Rule 202 of Regulation S-T. The delegation of authority to the Director of the Division of Market Regulation is designed to conserve Commission resources by permitting staff to adjust the filing date of an electronic filing and to grant or to deny exemptions where appropriate and in a timely manner. Nevertheless, the staff may submit matters to the Commission for consideration, as it deems appropriate. The Directors of the Divisions of Corporation Finance and of Investment Management have previously been delegated such authority. 6 5 17 CFR 200.30-3, Delegation of authority to the Director of Division of Market Regulation. 6 17 CFR 200.30-1(j) and

(k)and 200.30-6(j) and (k). II. Certain Findings Under the Administrative Procedure Act (“APA”), notice of proposed rulemaking is not required “(A) [for] interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B)when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 7 The Commission is making technical amendments to Regulation S-T to correct Rule 101 and to make a conforming change to Rule 100 with respect to forms submitted for review by the Division of Market Regulation and therefore, notice and public procedure is unnecessary. Specifically, Rule 101(a) is being amended to remove the reference to Form 19b-4 and Rule 101(c) is being amended to clarify that only forms which are not submitted electronically are required to be filed in paper. Additionally, Rule 100 is being amended to add a new paragraph

(d)which will define filers whose filings are subject to review by the Division of Market Regulation as persons or entities that are subject to Regulation S-T. The amendment reflects the fact that the Commission currently mandates that Forms 25, TA-1, TA-2, and TA-W be filed electronically on EDGAR and that the filers of these forms should be (and probably believe that they are) subject to the requirements and protections of Regulation S-T. For these reasons, the Commission finds that publishing the changes for comment is unnecessary. 8 The amendment to Rule 30-3 of the Commission's Rules of Organization and Program Management relates solely to agency organization, procedure, or practice. As such, notice of proposed rulemaking is not required. 7 5 U.S.C. 553(b). 8 For similar reasons, the amendments do not require analysis under the Regulatory Flexibility Act or analysis of major status under the Small Business Regulatory Enforcement Fairness Act. *See* 5 U.S.C. 601(2) (for purposes of Regulatory Flexibility analyses, the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking) and 5 U.S.C. 804(3)(C) (for purposes of congressional review of agency rulemaking, the term “rule” does not include any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties). III. Statutory Authority The Commission is adopting amendments § 200.30-3 under the authority set forth in sections 4A(a) and 23(a) of the Securities Exchange Act. 9 The Commission is adopting amendments to Regulation S-T under authority set forth in sections 19(a) of the Securities Act and 23(a) of the Securities Exchange Act. 10 The amendments to § 200.30-3 and to Regulation S-T are adopted under Chapter II of Title 17 of the Code of Federal Regulations in the manner set forth below. 9 15 U.S.C. 78d-1(a) and 78w(a). 10 15 U.S.C. 78s(a) and 78w(a). List of Subjects 17 CFR Part 200 Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies). 17 CFR Part 232 Reporting and recordkeeping requirements. Text of Amendment In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows: PART 200—ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS Subpart A—Organization and Program Management 1. The authority citation for part 200, subpart A, continues to read, in part, as follows: Authority: 15 U.S.C. 77o, 77s, 77sss, 78d, 78d-1, 78d-2, 78w, 78 *ll* (d), 78mm, 80a-37, 80b-11, and 7202, unless otherwise noted. 2. Section 200.30-3 is amended by redesignating paragraph

(j)as paragraph

(l)and adding new paragraphs

(j)and

(k)to read as follows: § 200.30-3 Delegation of authority to Director of Division of Market Regulation.

(j)With respect to the Securities Act of 1933 (15 U.S.C. 77a *et seq.* ), the Securities Exchange Act of 1934 (15 U.S.C. 78a *et seq.* ), the Trust Indenture Act of 1939 (15 U.S.C. 77aaa *et seq.* ), and Regulation S-T thereunder (part 232 of this chapter), to grant or deny a request submitted pursuant to Rule 13(b) of Regulation S-T (§ 232.13(b) of this chapter) to adjust the filing date of an electronic filing.

(k)With respect to the Securities Act of 1933 (15 U.S.C. 77a *et seq.* ), the Securities Exchange Act of 1934 (15 U.S.C.) 78a *et seq.* ), the Trust Indenture Act of 1939 (15 U.S.C. 77aaa *et seq.* ), and Regulation S-T thereunder (part 232 of this chapter) to set the terms of, and grant or deny as appropriate, continuing hardship exemptions, pursuant to Rule 202 of Regulation S-T (§ 232.202 of this chapter), from the electronic submission requirements of Regulation S-T (part 232 of this chapter). PART 232—REGULATION S-T—GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 3. The authority citation for part 232 continues to read in part as follows: Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 78c(b), 78 *l* , 78m, 78n, 78o(d), 78w(a), 78 *ll* (d), 80a-8, 80a-29, 80a-30, 80a-37, and 7201 *et seq.* ; and 18 U.S.C 1350. 4. Section 232.100 is amended by: a. Removing the word “and” at the end of paragraph (b); b. Redesignating paragraph

(c)as paragraph (d); c. Adding new paragraph (c); and d. Revising the term “registrant” in newly redesignated paragraph

(d)to read “person or entity”. The addition reads as follows: § 232.100 Persons and entities subject to mandated electronic filing.

(c)Persons or entities whose filings are subject to review by the Division of Market Regulation; and 5. Section 232.101 is amended by: a. Removing paragraph (a)(1)(x); b. Redesignating paragraph (a)(1)(xi) and (a)(1)(xii) as paragraphs (a)(1)(x) and (a)(1)(xi); and c. Revising paragraph (c)(9). The revision reads as follows: § 232.101 Mandated electronic submissions and exceptions.

(c)* * *

(9)Exchange Act filings submitted to the Division of Market Regulation other than those that are submitted in electronic format as mandated or permitted electronic submissions under paragraph

(a)and

(b)of this section or that are submitted electronically in a filing system other than EDGAR. Dated: March 21, 2007. By the Commission. Florence E. Harmon, Deputy Secretary. [FR Doc. E7-5589 Filed 3-27-07; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-07-006] Drawbridge Operating Regulations; Berwick Bay, (Atchafalaya River) Morgan City, LA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the BNSF Railway Company Vertical Lift Span Bridge across Berwick Bay, mile 0.4, (Atchafalaya River, mile 17.5) at Morgan City, St. Mary Parish, Louisiana. This deviation provides for the bridge to remain closed to navigation for 12 consecutive hours to conduct scheduled maintenance to the drawbridge. DATES: This deviation is effective from 8 a.m. until 8 p.m. on Thursday, June 14, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, Hale Boggs Federal Building, Room 1313, 500 Poydras Street, New Orleans, Louisiana 70130-3310 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is

(504)671-2128. The Bridge Administration Branch maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: David Frank, Bridge Administration Branch, telephone

(504)671-2128. SUPPLEMENTARY INFORMATION: The BNSF Railway Company has requested a temporary deviation in order to replace the railroad signal circuits of the BNSF Railway Railroad Vertical Lift Span Bridge across Berwick Bay, mile 0.4 (Atchafalaya River, mile 17.5) at Morgan City, St. Mary Parish, Louisiana. Replacement of the signal circuits is necessary to turn the lining of signals across the bridge into a fully automatic operation so that the bridge will be in full compliance with requirements of the Federal Railroad Administration. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 8 a.m. until 8 p.m. on Thursday, June 14, 2007. The proposed work was previously scheduled for Wednesday, December 13, 2006 and Wednesday, February 7, 2007, but had to be postponed. The bridge owner is now prepared to complete the work and has coordinated the closure with all departments within the railroad. There may be times, during the closure period, when the draw will not be able to open for emergencies. The bridge provides 4 feet of vertical clearance in the closed-to-navigation position. Thus, most vessels will not be able to transit through the bridge site when the bridge is closed. Navigation on the waterway consists of tugs with tows, fishing vessels and recreational craft including sailboats and powerboats. Due to prior experience, as well as coordination with waterway users, it has been determined that this closure will not have a significant effect on these vessels. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: March 20, 2007. Marcus Redford, Bridge Administrator. [FR Doc. E7-5612 Filed 3-27-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD09-07-004] RIN 1625-AA09 Drawbridge Operation Regulation; Detroit River (Trenton Channel), Grosse Ile, MI AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is temporarily revising the operating regulations for the Grosse Ile Toll Bridge at Mile 8.80 over the Trenton Channel during the planned seven-month duration of time that the Grosse Ile County

(Free)Bridge at Mile 5.60 will be rehabilitated and not available for vehicular traffic. Grosse Ile is connected to the mainland by these two bridges only. The temporary regulations will revise the number of required bridge openings of the Grosse Ile Toll Bridge to provide less interruptions of vehicular traffic while simultaneously providing for reasonable needs of marine navigation. DATES: This temporary rule is effective from 6 a.m. on April 18, 2007 until 6:30 p.m. on December 15, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD09-07-004 and are available for inspection or copying at Commander (dpb), Ninth Coast Guard District, 1240 E. Ninth Street, Room 2025, Cleveland, Ohio 44199-2060 between 7 a.m.. and 3 a.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Kurt Carlson, U.S. Ninth Coast Guard Bridge Branch,

(216)902-6086. SUPPLEMENTARY INFORMATION: We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This temporary rule is designed to insure that marine navigation of the Trenton Channel is maintained throughout the entire period of Grosse Ile

(Free)Bridge rehabilitation (seven months). Dates for the rehabilitation project were just submitted by the bridge owner. Providing notice and comment would mean that this temporary final rule would not be issued in advance of the project beginning, which is contrary to the public interest. Under 5 U.S.C. 553(d)(3), and for the same reason cited above, the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the **Federal Register** . Background and Purpose Grosse Ile, an island in the Detroit River, is a suburb of the City of Detroit, Michigan. Most residents are employed off-island and must traverse one of the two bridges that connect the island to the mainland. “Rush hour” traffic is extremely heavy. The U.S. Coast Guard, at the request of the Manager of Grosse Ile Township and Congressional and State Representatives, is modifying the operation of the Grosse Ile Toll (swing) Bridge during the period of time that the Grosse Ile “Free” Bridge will be out of service due to scheduled rehabilitation. The modified operations will limit the number of bridge openings for the Grosse Ile Toll Bridge resulting in fewer interruptions for vehicular traffic particularly during the morning and afternoon “rush hours”. Bridge logs reveal that the Toll Bridge is required to open (on average) 150 times per month for recreational vehicles and an additional 11 times per month for commercial vessels. The current regulations for Grosse Ile Toll Bridge at Mile 8.80 over the Trenton Channel are defined in 33 CFR 117.631:

(1)Between the hours of 7 a.m. and 11 p.m., seven days a week and holidays, the draw need open only from three minutes before to three minutes after the hour and half-hour for pleasure craft; for commercial vessels, during this period of time, the draw shall open on signal as soon as possible.

(2)Between the hours of 11 p.m. and 7 a.m., the draw shall open on signal for pleasure craft and commercial vessels. The modified regulations for the Grosse Ile Toll Bridge at Mile 8.80 over the Trenton Channel shall be: Weekdays: The bridge will not be required to open during “rush hours” defined as between 6 a.m. and 9 a.m. and between 3:30 p.m. and 6:30 p.m. At all other times, the bridge is required to make one opening per hour for recreational vessels (if necessary) from three minutes before until three minutes after the hour. Except during defined “rush hours”, the bridge must open for commercial vessels upon signal. *Weekends:* The bridge shall open once per hour for recreational vessels (if necessary) from three minutes before until three minutes after the hour. At all times during weekends and holidays, the bridge must open for commercial vessels upon signal. Discussion of Rule Currently, the Grosse Ile Toll Bridge accommodates approximately 9,000 vehicle crossings per day and the Grosse Ile County

(Free)Bridge accommodates 23,000 vehicle crossings per day. From April 18 until December 15, 2007, the “Free” Bridge will be rehabilitated and closed to vehicular traffic. Consequently, during this period, all vehicular traffic on and off Grosse Ile will only be able to use the Toll Bridge. Thus, estimated traffic volume will be 32,000 vehicles per day. The modified bridge regulations will provide for better accommodation of the increased volume of vehicular traffic. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. No significant impact is expected because vessels will not be prohibited from transit past the bridge. The navigable waterway, although further restricted, will not be closed. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Marine transit along this navigable waterway of the United States will not be halted, although owners or operators of recreational and/or commercial vessels intending to transit or anchor in a portion of the Trenton Channel during the periods modified by this temporary rule may encounter short delays. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard temporarily amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); § 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. In § 117.631, from 6 a.m. on April 18 until 6:30 p.m. on December 15, 2007 temporarily suspend paragraph

(a)and temporarily add paragraph

(d)to read as follows: § 117.631 Detroit River (Trenton Channel).

(d)The draw of the Grosse Ile Toll Bridge (Grosse Ile Parkway), mile 8.80, at Grosse Ile, shall operate as follows:

(1)Between the hours of 6 a.m. and 9 a.m. and 3:30 p.m. and 6:30 p.m., Monday through Friday, the bridge need not open. At all other times, Monday through Friday, the draw must open for commercial vessels upon signal and only from three minutes before until three minutes after the hour for pleasure craft.

(2)On Saturday, Sunday and holidays, the bridge must open for commercial vessels upon signal and only from three minutes before until three minutes after the hour for pleasure craft. Dated: March 16, 2007. John E. Crowley, Jr., Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District. [FR Doc. E7-5717 Filed 3-27-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD05-06-104] RIN 1625-AA87 Security Zone; Chesapeake Bay, Between Sandy Point and Kent Island, MD AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is establishing a permanent security zone on the waters of the Chesapeake Bay, within 250 yards north of the north span and 250 yards south of the south span of the William P. Lane Jr. Memorial Bridge, located between Sandy Point and Kent Island, Maryland. This action is necessary to provide for the security of a large number of participants during the annual Bay Bridge Walk across the William P. Lane Jr. Memorial Bridge, held annually on the first Sunday in May. The security zone will allow for control of vessels or persons within a specified area of the Chesapeake Bay and safeguard the public at large. DATES: This rule is effective April 27, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD05-06-104 and are available for inspection or copying at Coast Guard Sector Baltimore, Waterways Management Division, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Ronald Houck, at Coast Guard Sector Baltimore, Waterways Management Division, at telephone number

(410)576-2674 or

(410)576-2693. SUPPLEMENTARY INFORMATION: Regulatory Information On December 1, 2006, we published a notice of proposed rulemaking

(NPRM)entitled “Security Zone; Chesapeake Bay, Between Sandy Point and Kent Island, MD” in the **Federal Register** (71 FR 69514). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Background and Purpose The ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports and waterways to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. Due to increased awareness that future terrorist attacks are possible, the Coast Guard, as lead federal agency for maritime homeland security, has determined that the Captain of the Port, Baltimore must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. This security zone is part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks. In this particular rulemaking, to address the aforementioned security concerns during the highly-publicized public event, and to take steps to prevent the catastrophic impact that a terrorist attack against a large number of participants during the annual Bay Bridge Walk would have on the public interest, the Captain of the Port, Baltimore, Maryland is establishing a security zone upon all waters of the Chesapeake Bay, within 250 yards north of the north (westbound) span of the William P. Lane Jr. Memorial Bridge, and 250 yards south of the south (eastbound) span of the William P. Lane Jr. Memorial Bridge, from the western shore at Sandy Point to the eastern shore at Kent Island, Maryland. This security zone will help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against a large number of participants during the event. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on the Chesapeake Bay Bridge during the annual Bay Bridge Walk would have on the large number of participants, and the surrounding area and communities, a security zone is prudent for this type of event. Discussion of Comments and Changes The Coast Guard received no comments on the proposed rule during the comment period published in the NPRM. No public meeting was requested and none was held. As a result, no change to the proposed regulatory text was made. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The operational restrictions of the security zone are tailored to provide the minimal disruption of vessel operations necessary to provide immediate, improved security for persons, vessels, and the waters of the Chesapeake Bay, within 250 yards of the William P. Lane Jr. Memorial Bridge, located between Sandy Point and Kent Island, Maryland. Additionally, this security zone is temporary in nature and any hardship experienced by persons or vessels are outweighed by the national interest in protecting the public at large from the devastating consequences of acts of terrorism, and from sabotage or other subversive acts, accidents, or other causes of a similar nature. The Coast Guard received no comments on this aspect of the proposed rule during the comment period published in the NPRM. As a result, no change to the proposed regulatory text was made. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities: the owners or operators of vessels intending to operate, remain or anchor within 250 yards of the William P. Lane Jr. Memorial Bridge, located between Sandy Point and Kent Island, Maryland. This security zone will not have a significant economic impact on a substantial number of small entities because vessels desiring to transit through the security zone without loitering or those vessels with compelling interests to remain in the zone may seek authorization to enter the security zone from the Captain of the Port. Before the enforcement period, the Coast Guard will issue maritime advisories widely available to users of the Chesapeake Bay. The Coast Guard received no comments on this aspect of the proposed rule during the comment period published in the NPRM. As a result, no change to the proposed regulatory text was made. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. However, we received no requests for assistance from any small entities. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This regulation establishes a security zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.507 to read as follows: § 165.507 Security Zone; Chesapeake Bay, between Sandy Point and Kent Island, MD.

(a)*Definitions.* The *Captain of the Port, Baltimore, Maryland* means the Commander, Coast Guard Sector Baltimore, Maryland or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port, Baltimore, Maryland to act on his or her behalf.

(b)*Location.* The following area is a security zone: All waters of the Chesapeake Bay, from the surface to the bottom, within 250 yards north of the north (westbound) span of the William P. Lane Jr. Memorial Bridge, and 250 yards south of the south (eastbound) span of the William P. Lane Jr. Memorial Bridge, from the western shore at Sandy Point to the eastern shore at Kent Island, Maryland.

(c)*Regulations.*

(1)All persons are required to comply with the general regulations governing security zones found in § 165.33 of this part.

(2)Entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port, Baltimore, Maryland.

(3)Persons or vessels requiring entry into or passage through the security zone must first request authorization from the Captain of the Port, Baltimore to seek permission to transit the area. The Captain of the Port, Baltimore, Maryland can be contacted at telephone number

(410)576-2693. The Coast Guard vessels enforcing this section can be contacted on VHF Marine Band Radio, VHF channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port, Baltimore, Maryland and proceed at the minimum speed necessary to maintain a safe course while within the zone.

(d)*Enforcement.* The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State, and local agencies.

(e)*Enforcement period.* This section will be enforced annually on the first Sunday in May from 7 a.m. to 5 p.m. local time. Dated: March 16, 2007. Brian D. Kelley, Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland. [FR Doc. E7-5718 Filed 3-27-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R09-OAR-2006-AZ-0558; FRL-8292-6] Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; State of Arizona; Boundary Redesignation; Finding of Attainment for Miami Particulate Matter of 10 Microns or Less (PM 10 ) Nonattainment Area; Determination Regarding Applicability of Certain Clean Air Act Requirements; Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve the State of Arizona's boundary redesignation of the Hayden/Miami PM 10 nonattainment area into two separate PM 10 nonattainment areas: Hayden and Miami. EPA is also finding that the Miami PM 10 nonattainment area is attaining the PM 10 national ambient air quality standard, and, based on this attainment finding, EPA is determining that certain Clean Air Act requirements are not applicable for so long as the Miami area shows continued attainment of the standard based on current, publicly available, quality-assured monitoring data. EPA is taking this action consistent with obligations under the Clean Air Act to act on State redesignations. Lastly, EPA is correcting two errors in previous rulemakings that involved the designations of PM 10 areas within the State of Arizona. DATES: This rule is effective on May 29, 2007, without further notice, unless EPA receives adverse comments by April 27, 2007. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-OAR-2006-AZ-0558 by one of the following methods: • *Federal eRulemaking portal: http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: tax.wienke@epa.gov.* • *Fax:*

(415)947-3579 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Wienke Tax, Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. • *Hand Delivery:* Wienke Tax, Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R09-OAR-2006-AZ-0558. 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. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *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 form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning, Environmental Protection Agency (EPA), Region 9, Mailcode AIR-2, 75 Hawthorne Street, San Francisco, California 94105-3901,

(520)622-1622, *tax.wienke@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA. Table of Contents I. Background A. What NAAQS are Considered in this Action? B. What is the Designation and Classification of this PM 10 Nonattainment Area? II. Boundary Redesignation A. What Did the State Submit? B. How Does EPA Evaluate Boundary Redesignations? C. What is EPA's Evaluation of the State's Submittal? D. What Are the Implications of EPA's Approval of the State's Boundary Redesignation? III. Finding of Attainment for Miami Area and Determination Regarding Applicability of Certain Clean Air Act Requirements A. How do we Make Attainment Determinations? B. What is the Basis for EPA's Determination that the Miami Area is Attaining the PM 10 NAAQS? C. What Are the Applicable Planning Requirements for the Miami Area as a Result of EPA's Attainment Determination? IV. Corrections to the Arizona PM 10 Table in 40 CFR Part 81 V. EPA's Final Action VI. Statutory and Executive Order Reviews I. Background A. What NAAQS Are Considered in this Action? National ambient air quality standards (NAAQS) are thresholds for certain ambient air pollutants set by EPA under the Clean Air Act (CAA or “Act”) to protect public health and welfare. Particulate matter with an aerodynamic diameter less than or equal to 10 micrometers, or PM 10 , is the subject of this action. PM 10 is among the ambient air pollutants for which EPA has established NAAQS. PM 10 causes adverse health effects by penetrating deep in the lungs, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable. In 1971, EPA promulgated the first NAAQS for particulate matter

(PM)and defined the standard in terms of an indicator referred to as “total suspended particulate,” or “TSP,” which roughly included all particles with diameters of 30 microns or less. In 1987, EPA established new PM NAAQS and defined the new standards in terms of PM 10 instead of TSP. See 52 FR 24634 (July 1, 1987). Ten years later, in 1997, EPA established another PM NAAQS and defined this new standard in terms of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers, or PM 2.5 , but in our 1997 final rule, we decided to retain a PM 10 NAAQS as well. See 62 FR 38652 (July 18, 1997). In 2006, EPA completed a review of both the PM 2.5 NAAQS and PM 10 NAAQS and, among other actions, decided to retain the 24-hour-average PM 10 standard at its current level but to revoke the annual-average PM 10 standard. See 71 FR 61144 (October 17, 2006). The level of the primary ( *i.e.* , public health) PM 10 standard is 150 micrograms per cubic meter (μg/m 3 ), 24-hour average concentration. 1 See 40 CFR 50.6. The secondary PM 10 standard, promulgated to protect against adverse welfare effects, is identical to the primary standard. B. What is the Designation and Classification of this PM 10 Nonattainment Area? 1 The effective date of EPA's October 17, 2006 final rule revoking the annual-average standard was December 18, 2006. Thus, we make no finding in this direct final rule relative to the annual-average PM 10 NAAQS but have included annual-average PM 10 concentration data for informational purposes only. The now-revoked annual-average PM 10 NAAQS was set at a level of 50 μg/m 3 . Under the Clean Air Act Amendments of 1977, and due to recorded violations of the former TSP-defined NAAQS and the location of major industrial sources, EPA designated one township in each of the Hayden and Miami areas as separate nonattainment areas for TSP (44 FR 21261, April 10, 1979, as corrected at 44 FR 53081, September 12, 1979). 2 As noted above, in 1987, we revised the PM NAAQS to include only particulate matter of a size range less than or equal to a nominal 10 microns (PM 10 ). As part of the implementation policy for the new standards, where insufficient PM 10 data were available, EPA categorized areas based on their probability of violating the standard using TSP data. The categories were: Group I, areas with a high probability of violating the standards; Group II, areas with a moderate probability of violating; and Group III, areas that were likely to be attaining the standards. 2 Hayden and Miami are towns located near significant mining and copper smelting activities in east central Arizona, roughly 70 to 80 miles east-southeast of Phoenix. Miami is located in Gila County; Hayden straddles the boundary between Gila County and Pinal County approximately 27 miles south of Miami. In 1987, EPA identified the “Hayden/Miami area” as one of the Group I areas for PM 10 . See 52 FR 29383 (August 7, 1987). In a 1990 clarification, we defined the geographic area of the combined Hayden/Miami Group I area as including all or part of 26 contiguous townships in and around the towns of Hayden and Miami (55 FR 45799, October 31, 1990). 3 3 The Hayden/Miami “Group I” area encompassed the following townships: T1N, R13E; T1N, R14E; T1N, R15E; T1S, R13E; T1S, R14E; T1S, R14 1/2 2E; T1S, R15E; T2S, R13E; T2S, R14E; T2S, R15E; T3S, R13E; T3S, R14E; T3S, R15E; T3S, R16E (except that portion in the San Carlos Indian Reservation); T4S, R13E; T4S, R14E; T4S, R15E; T4S, R16E; T5S, R13E; T5S, R14E; T5S, R15E; T5S, R16E; T6S, R13E; T6S, R14E; T6S, R15E; and T6S, R16E. Subsequent to our 1990 clarification and upon enactment of the Clean Air Act Amendments of 1990, all “Group I” areas, such as the Hayden/Miami planning area, were designated as “nonattainment” for the PM 10 NAAQS by operation of law and classified as “moderate.” See CAA sections 107(d)(4)(B) and 188(a). In March 1991, EPA announced the designations and classifications of areas with respect to PM 10 NAAQS that occurred by operation of law upon enactment of the 1990 Amendments to the CAA. See 56 FR 11101 (March 15, 1991). In August 1991, EPA rejected challenges made by the State of Arizona and industry to the geographic size of the Hayden/Miami PM 10 nonattainment area. See 56 FR 37654 (August 8, 1991). Later that same year, we codified the PM 10 nonattainment designations and moderate area classifications in 40 CFR part 81. See 56 FR 56694 (November 6, 1991). For “moderate” nonattainment areas such as the Hayden/Miami PM 10 nonattainment area, CAA section 188(c) of the 1990 Amended Act establishes an attainment date of December 31, 1994. Along with the new designations, classifications, and attainment dates, the CAA as amended in 1990 also established new planning requirements. In accordance with section 189(a) of the CAA, Arizona was required to submit a state implementation plan

(SIP)revision by November 15, 1991 demonstrating attainment of the PM 10 standards and providing for implementation of reasonably available control measures

(RACM)by December 31, 1994 for the Hayden/Miami area. The State of Arizona relied upon a SIP revision (“Final PM-10 State Implementation Plan for the Hayden Group I Area” dated September 1989) that it had submitted on October 16, 1989 to meet the requirements of the CAA as amended in 1990 for “moderate” PM 10 nonattainment areas. In 1994, we proposed a limited approval and limited disapproval of Arizona's 1989 SIP revision. See 59 FR 36116 (July 15, 1994). The primary reason for the proposed limited disapproval was that the plan addressed only the Hayden portion of the Hayden/Miami PM 10 nonattainment area. In response, by letter dated November 10, 1994, the Governor's designee for CAA matters, the Arizona Department of Environmental Quality (ADEQ), submitted a formal petition for rulemaking to realign the Hayden/Miami PM 10 nonattainment area boundary. Specifically, ADEQ requested that EPA correct the purported error the Agency had made in including the Miami area in the original Group I area in 1987 and called for exclusion of the northern third of the area ( *i.e.* , the Miami portion) from the nonattainment area. We have not taken final action on our 1994 proposed limited approval/limited disapproval of ADEQ's 1989 SIP revision. In today's direct final rule, we again are taking no action on ADEQ's 1989 SIP revision but will address applicable CAA requirements for the Hayden area in a future rulemaking. For the Miami area, in this direct final rule, we are making an attainment finding and a determination regarding applicability of certain CAA requirements (see section III, below). On June 20, 2006, under CAA section 107(d)(3)(D), ADEQ submitted a request for a boundary redesignation of the Hayden/Miami PM 10 nonattainment area to EPA for approval. In contrast with ADEQ's 1994 petition, ADEQ's 2006 boundary redesignation would not reduce the overall size of the area designated as nonattainment for PM 10 but would simply divide a single PM 10 nonattainment area into two PM 10 nonattainment areas. We consider ADEQ's June 20, 2006 boundary redesignation (discussed in the following section of this direct final rule) to supersede the State's 1994 petition and thus plan no further action on that earlier request. II. Boundary Redesignation A. What Did the State Submit? On June 20, 2006, ADEQ submitted to EPA under CAA section 107(d)(3)(D) a request for a boundary redesignation of the Hayden/Miami PM 10 nonattainment area into two separate, but adjoining, PM 10 nonattainment areas, namely, the Hayden nonattainment area and the Miami nonattainment area. ADEQ enclosed a technical justification report entitled, “Request to Revise the Hayden/Miami PM 10 Nonattainment Area Boundary” (May 2006), in support of this boundary redesignation. ADEQ's technical justification report includes a discussion of the regulatory background and the topographical and meteorological characteristics of the Hayden and Miami areas. The report also includes tables summarizing emission inventory and ambient air quality data and maps showing the existing nonattainment area boundaries, topographical features, the locations of permitted emissions sources, and the boundary delineating the new Miami and Hayden PM 10 nonattainment areas. Together, these two new PM 10 nonattainment areas would cover the same geographic area as the original Hayden/Miami PM 10 nonattainment area. ADEQ's boundary separating the Miami and Hayden PM 10 areas runs east-west in steps using township and section identifiers to roughly trace the ridgeline of the Pinal Mountains. B. How Does EPA Evaluate Boundary Redesignations? Under section 107(d)(3)(D) of the CAA, the Governor of any State may, on the Governor's own motion, submit to EPA a revised designation of any area or portion thereof within the State. 4 EPA is required to approve or deny a submittal for redesignation within 18 months of receipt. The type of redesignation that ADEQ submitted on June 20, 2006 involves just a boundary change and does not involve a change in status ( *i.e.* , does not involve a change from “nonattainment,” for example, to “attainment” or “unclassifiable”) of any area. In this notice, we refer to the former type of redesignation as a “boundary redesignation.” 4 Boundary changes are an inherent part of a designation or redesignation of an area under the CAA. See CAA section 107(d)(1)(B)(ii). In determining whether to approve or deny a State's submittal of a boundary redesignation under section 107(d)(3)(D), EPA uses the same factors Congress directed EPA to consider when the Agency initiates a revision to a designation of an area on its own motion under section 107(d)(3)(A). These factors include “air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” See CAA section 107(d)(3)(A). In addition, because ADEQ's redesignation involves a nonattainment area, we also take into account CAA section 107(d)(1)(A), which provides that nonattainment areas are to include the geographic area that does not meet, or that contributes to ambient air quality in a nearby area that does not meet, the NAAQS for a given pollutant. C. What is EPA's Evaluation of the State's Submittal? We have reviewed and evaluated ADEQ's technical justification report and conclude that ADEQ has adequately demonstrated that the Miami and Hayden PM 10 nonattainment areas lie in separate airsheds in which air quality is determined by topographical and meteorological factors and local emissions sources specific to each airshed with no significant PM 10 transport between the two areas. We also conclude that ADEQ's division of the two areas essentially along the ridgeline of the Pinal Mountains follows logically from the identification of these separate airsheds. As such, each new PM 10 nonattainment area encompasses the geographic area of historic PM 10 (or, in the case of Miami, TSP) NAAQS violations as well as the sources which contributed to those violations. Therefore, we are approving the State's boundary redesignation of the Hayden/Miami PM 10 nonattainment area and are thereby establishing separate Hayden and Miami PM 10 nonattainment areas. We provide further detail on our evaluation in the paragraphs that follow. Topography As noted previously, the Hayden/Miami PM 10 nonattainment area is located in east central Arizona. The town of Hayden is situated in the southern portion of the nonattainment area, approximately 27 miles south of the town of Miami, which is located in the northern portion of the nonattainment area. Between the two towns lie the predominant geographic features of the nonattainment area: the Pinal, Mescal, and Dripping Spring Mountain ranges. Airsheds refer to areas with common weather or meteorological conditions and sources of air pollution. Generally speaking, an airshed contains source and receptor areas. The Pinal and Mescal Mountains, the highest of the three mountain ranges in this area, form a boundary between the Lower Salt River Airshed and the Gila River Airshed. These two interconnecting ranges separate the southern or Hayden portion of the nonattainment area from the northern or Miami portion. Figure 1 in the State's technical justification report illustrates the topographical features in the region. Elevations in the Pinal and Mescal Mountains are well over 5,000 feet above sea level with numerous peaks above 6,000 feet. Pinal Peak is the highest point at 7,848 feet. Elevational differences between lower elevations in the southern portion of the nonattainment area and the airshed boundary (i.e., the ridgeline of the Pinal Mountains) generally range between 4,000 and 6,000 feet. Elevational differences between the northern portion of the nonattainment area and the airshed boundary (ridgeline of the Pinal Mountains) generally range between 2,000 and 4,000 feet. Meteorology The speed and direction of air pollutant transport in both the Lower Salt River Airshed (Miami area) and the Gila River Airshed (Hayden area) are greatly influenced by local topography. Both airsheds contain extensive areas of complex terrain that is responsible for complicated wind patterns. Hayden is located in a relatively narrow portion of the Gila River valley, immediately downstream from the confluence of the Gila and San Pedro Rivers. The Dripping Spring Mountains are located northeast of Hayden. In ADEQ's technical justification report, wind patterns in Hayden, where a number of stationary sources are located, are described as distinctly up-valley/down-valley. Such patterns are typical of mountainous areas, and are characterized by up-valley or up-slope flows during the day and down-valley or down-slope winds during the night. ADEQ notes that low southeasterly winds in the Gila River valley from nighttime down-slope or drainage flow can combine with stable atmospheric conditions to cause elevated pollutant concentrations within low lying areas. Up-slope convection during the day increases dispersion and flow out of the low lying areas. Under normal daytime conditions, surface winds become west-southwesterly to west-northwesterly (up-valley) in the Hayden area, replacing nighttime down-slope winds as the atmosphere becomes less stable. This pattern is repeated locally throughout much of the complex terrain found in the southern portion of the Hayden/Miami PM 10 nonattainment area. Due to widespread areas of complex terrain, a similar up-valley/down-valley pattern is found throughout much of the northern portion of the Hayden/Miami PM 10 nonattainment area, where Miami is located. Miami is located along U.S. Highway 60 in a steep canyon of the Pinal Mountains. As described for Hayden, Miami is similarly influenced by up-slope/down-slope wind patterns. Generally, the Miami area exhibits a diurnal pattern of having a stronger average easterly component to nighttime airflow with a westerly component evident during the day. ADEQ's technical justification report notes that stronger regional air flow can at times override local patterns and overcome elevational differences, and that, under these conditions, direction of flow can vary. However, ADEQ notes also that mixing, dispersion, and dilution of emissions are increased under these conditions, especially with distance. Thus, localized complex terrain windflow patterns are the primary forces affecting dispersion from sources within each of the Hayden and Miami areas. We agree with ADEQ's conclusion that the greater emissions impacts are local, and any cross-airshed boundary contributions that may occur are minimal relative to local impacts. Locations of Emissions Sources The topographical and meteorological characteristics described above support the conclusion that Hayden and Miami lie in separate airsheds with minimal PM 10 pollutant transport between the two. However, ADEQ also provides information on the locations and magnitude of permitted PM 10 sources in the two areas that lends further support to this conclusion. ADEQ notes that the majority of permitted sources in the Hayden/Miami PM 10 nonattainment area are associated with mining and smelting activities. These sources are located primarily in the extreme south and north of the Hayden/Miami nonattainment area near the two mining towns, Hayden and Miami. 5 Hayden area sources are clustered primarily in lower elevation areas in the southern portion of the nonattainment area, south of the Township 2 South/Township 3 South boundary. Miami area sources are located generally north of the Township 1 North/Township 1 South line. The central portion of the nonattainment area, dominated by the Pinal and Mescal Mountain ranges that divide the lower elevation areas to the north and south, contains no permitted stationary sources. This buffer between the two concentrations of emissions sources to the south and north further minimizes the possibility of significant PM 10 pollutant transport between the Hayden and Miami areas. 5 ADEQ estimates that, in 2004, permitted sources in Hayden emitted 1,974 tons of PM 10 or 84 percent of total nonattainment area PM 10 emissions. Emissions for Miami area sources totaled 375 tons or 16 percent of total nonattainment area emissions, and about one-fifth of Hayden area emissions. As expected in areas where local topographical and meteorological factors are the primary determinants of ambient air conditions and given the relative PM 10 source strengths in the two areas, PM 10 monitors in the Hayden area record higher PM 10 concentrations than those in the Miami area. For example, whereas violations of both the 24-hour and now-revoked annual PM 10 NAAQS have been recorded in the Hayden area (although none in recent years), no PM 10 violations have ever been recorded in the Miami area. Planning Considerations ADEQ notes that dividing the single PM 10 nonattainment area into two areas would facilitate air quality management by enabling separate analyses that reflect local air transport patterns and the development of control strategies and planning processes specific to each area. While we find that the existence of a single PM 10 air quality planning area does not preclude separate analyses and development of subarea-specific control strategies, we do recognize that dividing the single area into two would allow for de-coupling of the air quality planning processes for the Hayden and Miami areas, thereby allowing one of the two areas to seek redesignation and to begin the maintenance phase of CAA planning sooner than might otherwise be possible. Conclusion Based on our review of ADEQ's technical justification report and other available information, we find that ADEQ has sufficiently demonstrated that the Miami and Hayden areas lie in separate airsheds in which local topographical and meteorological factors and local emissions sources determine ambient PM 10 conditions and between which PM 10 pollutant transport is minimal. The concentration of PM 10 emissions sources to the south and north ends of the Hayden/Miami PM 10 nonattainment area adds separation distance to the list of factors that minimize the potential for PM 10 pollutant transport between the Miami and Hayden areas. We also find that dividing the single area into two would be beneficial from a planning perspective by allowing one of the areas to proceed to the maintenance phase of air quality planning under the CAA sooner than might otherwise be possible. 6 6 We note that our action here today is consistent with prior EPA rulemakings redesignating PM 10 nonattainment areas into multiple nonattainment areas that together cover the same geographic area as the original nonattainment area. See, *e.g.* , 63 FR 59722 (November 5, 1998), involving the division of a PM 10 nonattainment area in Idaho into two areas delineated by the boundary between State lands and the Fort Hall Indian Reservation; and 67 FR 50805 (August 6, 2002), corrected at 67 FR 59005 (September 19, 2002), involving the division of a PM 10 nonattainment area in California into three areas delineated by the boundaries of Inyo, Kern and San Bernardino counties. D. What Are the Implications of EPA's Approval of the State's Boundary Redesignation? In approving ADEQ's boundary redesignation of the Hayden/Miami PM 10 nonattainment area into two areas, we approve ADEQ's boundary, which roughly traces the ridgeline of the Pinal Mountains. The new Miami PM 10 nonattainment area encompasses all or part of the following seven townships: T1N, R13E; T1N, R14E; T1N, R15E; T1S, R13E (sections 1-6); T1S, R14E (sections 1-24); T1S, R14 1/2 E; and T1S, R15E. The new Hayden PM 10 nonattainment area encompasses all or part of the following 21 townships: T1S, R13E (sections 7-36); T1S, R14E (sections 25-36); T2S, R13E; T2S, R14E; T2S, R15E; T3S, R13E; T3S, R14E; T3S, R15E; T3S, R16E (except that portion in the San Carlos Indian Reservation); T4S, R13E; T4S, R14E; T4S, R15E; T4S, R16E; T5S, R13E; T5S, R14E; T5S, R15E; T5S, R16E; T6S, R13E; T6S, R14E; T6S, R15E; and T6S, R16E. Together, the two new PM 10 nonattainment areas cover the same geographic area as the original Hayden/Miami PM 10 nonattainment area. Both of the new PM 10 nonattainment areas retain the “moderate” classification associated with the Hayden/Miami PM 10 nonattainment area. III. Finding of Attainment for Miami Area and Determination Regarding Applicability of Certain Clean Air Act Requirements A. How Do We Make Attainment Determinations? Generally, we will determine whether an area's air quality meets the PM 10 NAAQS based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring stations

(NAMS)in the nonattainment area and entered into EPA's Air Quality System

(AQS)database. Data entered into AQS have been determined to meet Federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area, such as Special Purpose Monitors (SPM), some of which are run by industrial sources, provided that the stations meet the Federal monitoring requirements for SLAMS and that the data is publicly available. 7 All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K. 7 See EPA Memorandum, “Use of Special Purpose Monitoring Data,” from John S. Seitz, Director, Office of Air Quality Planning and Standards, August 22, 1997. Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM 10 concentrations greater than 150 μg/m 3 . The 24-hour standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three-year period) is less than or equal to one. Three consecutive years of air quality data are necessary to show attainment of the PM 10 NAAQS. See 40 CFR part 50, appendix K. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is composed of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days. B. What Is the Basis for EPA's Determination that the Miami Area Is Attaining the PM 10 NAAQS? Beginning in 1987, PM 10 has been monitored at seven different sites in the Miami area. ADEQ operated some of these PM 10 monitoring sites and the owner and operator of the primary copper smelter ( *i.e.* , Phelps-Dodge Miami, Inc. or “Phelps-Dodge”), which is the largest single industrial source of emissions in the area, operated others. Different monitoring locations were selected in an effort to locate the maximum PM 10 impacts from the smelter. Since 1991, two monitors have remained at their current locations: the Golf Course monitor and the Ridgeline monitor. Both are operated by Phelps-Dodge and are considered Special Purpose Monitors (SPMs). ADEQ ended PM 10 monitoring at its Nolan Ranch site (also known as “Miami South” or “Jones Ranch”) in 1994 and no longer operates any PM 10 monitor in the Miami area. No violations of the PM 10 NAAQS have been monitored at any of the seven monitoring sites in the Miami area since monitoring began in 1987. The PM 10 data collected by Phelps-Dodge at the two SPMs ( *i.e.* , the Golf Course and Ridgeline sites) are not normally certified by ADEQ and entered into AQS, but to provide for this attainment finding, ADEQ worked with Phelps-Dodge to certify PM 10 monitoring data collected over the past several years and to enter the certified data into AQS. Table 1 provides a summary of the data collected at the Golf Course and Ridgeline sites during the 2003-2005 period. Phelps-Dodge collected the PM 10 data shown in Table 1 below using Graseby-Anderson Dichotomous samplers, devices designated by EPA as a manual reference method sampler. The samplers operated on an approved operating schedule of once every six days and the data sets meet EPA requirements for 75 percent data capture as discussed in 40 CFR 50, appendix K. ADEQ has reviewed the operation and maintenance records for these monitors and has certified that the data collected by Phelps-Dodge meets EPA's quality assurance requirements. Table 1.—Summary of 24 Hour and Annual PM 10 Concentrations (μg/m 3 ) for Miami, 2003-2005 Year PM 10 Concentrations Ridgeline 24-hr max Annual average 3 year annual average Golf Course 24-hr max Annual average 3 year annual average 2003 59 14.6 53 20.7 2004 26 10.2 40 16.4 2005 23 12.4 12.4 40 21.0 19.4 Note: Data for the annual-average are included in this table for informational purposes only because the annual-average PM 10 standard has been revoked. The former annual-average PM 10 standard was attained when the annual arithmetic mean PM 10 concentration over a three-year period is equal to or less than 50 μg/m 3 . We note that the Miami area would have been found to attain the annual standard as well as the 24-hour standard had the former not been revoked. As noted above, the 24-hour PM 10 standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three-year period) is less than or equal to one. Based on the data summarized in table 1, above, we find no exceedances of the 24-hour PM 10 standard for the 2003 to 2005 period and thus the expected number of days with levels above 150 μg/m 3 (averaged over that three-year period) is zero. As such, we find that Miami is attaining the 24-hour PM 10 NAAQS. C. What Are the Applicable Planning Requirements for the Miami Area as a Result of EPA's Attainment Determination? The air quality planning requirements for moderate PM 10 nonattainment areas, such as the Miami PM 10 nonattainment area, are set out in part D, subparts 1 and 4 of title I of the Act. We have issued guidance in a General Preamble 8 describing how we will review SIPs and SIP revisions submitted under title I of the Act, including those containing moderate PM 10 nonattainment area SIP provisions. 8 “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992, as supplemented 57 FR 18070, April 28, 1992). In some designated nonattainment areas, monitored data demonstrates that the NAAQS has already been achieved. Based on its interpretation of the Act, EPA has determined that certain requirements of part D, subparts 1 and 2 (of title I) of the Act do not apply and therefore do not require certain submissions for an area that has attained the NAAQS. These include reasonable further progress

(RFP)requirements, attainment demonstrations and contingency measures, because these provisions have the purpose of helping achieve attainment of the NAAQS. EPA's Clean Data Policy is the subject of two memoranda setting forth our interpretation of the provisions of the Act as they apply to areas that have attained the relevant NAAQS. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part of its “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71645-71646 (November 29, 2005). EPA believes that the legal bases set forth in detail in our Phase 2 Final Rule; our May 10, 1995 memorandum from John S. Seitz, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (Seitz memo); and our December 14, 2004 memorandum from Stephen D. Page entitled “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (Page memo) are equally pertinent to the interpretation of provisions of subparts 1 and 4 applicable to PM 10 . EPA's interpretation of how the provisions of the Act apply to areas with “clean data” is not logically limited to ozone and PM 2.5 , because the rationale is not dependent upon the type of pollutant. Our interpretation that an area that is attaining the standard is relieved of obligations to demonstrate RFP and to provide an attainment demonstration and contingency measures pursuant to part D of the CAA, pertains whether the standard is PM 10 , ozone, or PM 2.5 . The reasons for relieving an area that has attained the relevant standard of certain part D, subparts 1 and 2 obligations, applies equally to part D, subpart 4, which contains specific attainment demonstration and RFP provisions for PM 10 nonattainment areas. As we have explained in the Phase 2 Final Rule and our ozone and PM 2.5 clean data memoranda, EPA believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions if an area subject to those requirements is already attaining the NAAQS ( *i.e.* , attainment of the NAAQS is demonstrated with three consecutive years of complete, quality- assured air quality monitoring data). Three U.S. Circuit Courts of Appeals have upheld EPA rulemakings applying its interpretation of subparts 1 and 2 with respect to ozone. *Sierra Club* v. *EPA,* 99 F.3d 1551 (10th Cir. 1996); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004); *Our Children's Earth Foundation* v. *EPA,* No. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion). It has been EPA's longstanding interpretation that the general provisions of part D, subpart 1 of the Act (sections 171 and 172) do not require the submission of SIP revisions concerning RFP for areas already attaining the ozone NAAQS. In the General Preamble, we stated: [R]equirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point. 57 FR at 13564. EPA believes the same reasoning applies to the PM 10 provisions of part D, subpart 4. With respect to RFP, section 171(1) states that, for purposes of part D of title I, RFP “means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.” Thus, whether dealing with the general RFP requirement of section 172(c)(2), the ozone-specific RFP requirements of sections 182(b) and (c), or the specific RFP requirements for PM 10 areas of part D, subpart 4, section 189(c)(1), the stated purpose of RFP is to ensure attainment by the applicable attainment date. Section 189(c)(1) states that: Plan revisions demonstrating attainment submitted to the Administrator for approval under this subpart shall contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress, as defined in section 7501(1) of this title, toward attainment by the applicable date. Although this section states that revisions shall contain milestones which are to be achieved until the area is redesignated to attainment, such milestones are designed to show reasonable further progress “toward attainment by the applicable attainment date”, as defined by section 171. Thus, it is clear that once the area has attained the standard, no further milestones are necessary or meaningful. This interpretation is supported by language in section 189(c)(3), which mandates that a state that fails to achieve a milestone must submit a plan that assures that the state will achieve the next milestone or attain the NAAQS if there is no next milestone. Section 189(c)(3) assumes that the requirement to submit and achieve milestones does not continue after attainment of the NAAQS. In the General Preamble, we noted with respect to section 189(c) that “the purpose of the milestone requirement is to ‘provide for emission reductions adequate to achieve the standards by the applicable attainment date' (H.R. Rep. No. 490 101st Cong., 2d Sess. 267 (1990)).” 57 FR 13539 (April 16, 1992). If an area has in fact attained the standard, the stated purpose of the RFP requirement will have already been fulfilled. 9 EPA took this position with respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the May 10, 1995 memorandum with respect to the requirements of sections 182(b) and (c). We are extending that interpretation to the specific provisions of part D, subpart 4. In the General Preamble, we stated, in the context of a discussion of the requirements applicable to the evaluation of requests to redesignate nonattainment areas to attainment, that the “requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point.” (57 FR 13564). See also our September 4, 1992 memorandum from John Calcagni, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (Calcagni memo), p. 6. 9 Thus, we believe that it is a distinction without a difference that section 189(c)(1) speaks of the RFP requirement as one to be achieved until an area is “redesignated attainment”, as opposed to section 172(c)(2), which is silent on the period to which the requirement pertains, or the ozone nonattainment area RFP requirements in sections 182(b)(1) or 182 (c)(2), which refer to the RFP requirements as applying until the “attainment date,” since section 189(c)(1) defines RFP by reference to section 171(1) of the Act. Reference to section 171(1) clarifies that, as with the general RFP requirements in section 172(c)(2) and the ozone-specific requirements of section 182(b)(1) and 182(c)(2), the PM-specific requirements may only be required “for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” 42 U.S.C. section 7501(1). As discussed in the text of this rulemaking, EPA interprets the RFP requirements, in light of the definition of RFP in section 171(1), and incorporated in section 189(c)(1), to be a requirement that no longer applies once the standard has been attained. Similarly, the requirements of section 189(c)(2) with respect to milestones no longer apply so long as an area has attained the standard. Section 189(c)(2) provides in relevant part that: Not later than 90 days after the date on which a milestone applicable to the area occurs, each State in which all or part of such area is located shall submit to the Administrator a demonstration * * * that the milestone has been met. Where the area has attained the standard and there are no further milestones, there is no further requirement to make a submission showing that such milestones have been met. As noted above, this is consistent with the position that EPA took with respect to the general RFP requirement of section 172(c)(2) in the April 16, 1992 General Preamble and also in the May 10, 1995 Seitz memorandum with respect to the requirements of section 182(b) and (c). In the May 10, 1995 Seitz memorandum, EPA also noted that section 182(g), the milestone requirement of Subpart 2, which is analogous to provisions in section 189(c), is suspended upon a determination that an area has attained. The memorandum, also citing additional provisions related to attainment demonstration and RFP requirements, stated: Inasmuch as each of these requirements is linked with the attainment demonstration or RFP requirements of section 182(b)(1) or 182(c)(2), if an area is not subject to the requirement to submit the underlying attainment demonstration or RFP plan, it need not submit the related SIP submission either. 1995 Seitz memorandum at 5. With respect to the attainment demonstration requirements of section 189(a)(1)(B), an analogous rationale leads to the same result. Section 189(a)(1)(B) requires that the plan provide for “a demonstration (including air quality modeling) that the [SIP] will provide for attainment by the applicable attainment date * * *.” As with the RFP requirements, if an area is already monitoring attainment of the standard, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of the section 172(c) requirements provided by EPA in the General Preamble, the Page memo, and the section 182(b) and

(c)requirements set forth in the Seitz memo. As EPA stated in the General Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached.” (57 FR at 13564). Other SIP submission requirements are linked with these attainment demonstration and RFP requirements, and similar reasoning applies to them. These requirements include the contingency measure requirements of sections 172(c)(9) and 182(c)(9). We have interpreted the contingency measure requirements of sections 172(c)(9) and 182(c)(9) as no longer applying when an area has attained the standard because those “contingency measures are directed at ensuring RFP and attainment by the applicable date.” (57 FR at 13564); Seitz memo, pp. 5-6. Both sections 172(c)(1) and 189(a)(1)(C) require “provisions to assure that reasonably available control measures” ( *i.e.* , RACM) are implemented in a nonattainment area. The General Preamble, 57 FR at 13560 (April 16, 1992), states that EPA interprets section 172(c)(1) so that RACM requirements are a “component” of an area's attainment demonstration. Thus, for the same reason the attainment demonstration no longer applies by its own terms, the requirement for RACM no longer applies. EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could contribute to reasonable further progress or to attainment. General Preamble, 57 FR at 13498. Thus, where an area is already attaining the standard, no additional RACM measures are required. 10 EPA is interpreting section 189(a)(1)(C) consistent with its interpretation of section 172(c)(1). 10 The EPA's interpretation that the statute only requires implementation of RACM measures that would advance attainment was upheld by the United States Court of Appeals for the Fifth Circuit ( *Sierra Club* v. *EPA,* 314 F.3d 735, 743-745 (5th Cir. 2002), and by the United States Court of Appeals for the D.C. Circuit ( *Sierra Club* v. *EPA,* 294 F.3d 155, 162-163 (DC Cir. 2002)). Here, as in both our Phase 2 Final Rule and ozone and PM 2.5 clean data memoranda, we emphasize that the suspension of a requirement to submit SIP revisions concerning these RFP, attainment demonstration, RACM, and other related requirements exists only for as long as a nonattainment area continues to monitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the requirements being suspended would no longer exist. Therefore, the area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need not submit one of the SIP submittals amounts to no more than a suspension of the requirements for so long as the area continues to attain the standard. However, once EPA ultimately redesignates the area to attainment, the area will be entirely relieved of these requirements to the extent the maintenance plan for the area does not rely on them. Therefore, we believe that, for the reasons set forth here and established in our prior “clean data” memoranda and rulemakings, a PM 10 nonattainment area that has “clean data,” should be relieved of the part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of section 189(a)(1)(C), and the RFP provisions established by section 189(c)(1) of the Act, as well as the aforementioned attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. 11 11 In some prior rulemakings involving the Clean Data Policy and PM 10 , EPA has applied criteria in addition to that of attainment of the standard. See, *e.g.* , 67 FR 43020 (June 26, 2002). EPA does not believe that those additional criteria are required by statute or are necessary for application of the policy for PM 10 areas, and does not employ them in applying the policy to ozone and PM 2.5 areas. EPA intends to make its application of the policy consistent for ozone, PM 10, and PM 2.5, and does not intend to require an area to meet additional criteria for PM 10. Should EPA at some future time determine that an area that had clean data, but which has not yet been redesignated as attainment for a NAAQS, has violated the relevant standard, the area would again be required to submit the pertinent requirements under the SIP for the area. Attainment determinations under the policy do not shield an area from other required actions, such as provisions to address pollution transport. As set forth above, EPA finds that because the Miami area is attaining the PM 10 NAAQS, the requirement of an attainment demonstration, reasonable further progress, reasonably available control measures and contingency measures no longer applies for so long as the area continues to monitor attainment of the PM 10 NAAQS. 12 12 We note that our application of the Clean Data Policy to the Miami PM 10 nonattainment area is consistent with actions we have taken for other PM 10 nonattainment areas that were also attaining the standard. See 71 FR 6352 (February 8, 2006)(Ajo, Arizona area); 71 FR 13021 (March 14, 2006)(Yuma, Arizona area); 71 FR 40023 (July 14, 2006)(Weirton, West Virginia area); 71 FR 44920 (August 8, 2006)(Rillito, Arizona area); and 71 FR 63642 (October 30, 2006) (San Joaquin Valley, California area). This determination is contingent on the existence of monitoring data showing continued attainment of the PM 10 NAAQS in the Miami area. Normally, we would simply rely on the continuation of a State's or local air district's monitoring network to provide the data necessary for the public and EPA to verify continued attainment because a State or local air district administering such a network must, under applicable Federal regulations, use reference methods, meet quality assurance requirements, and enter data periodically into AQS. In the Miami area, however, the only monitors collecting PM 10 data are Special Purpose Monitors

(SPMs)run by Phelps-Dodge. Historically, these data have not been submitted to the State for certification and subsequent entry into EPA's Air Quality System

(AQS)database. Thus, we have requested that ADEQ provide us with evidence that ADEQ and Phelps-Dodge ensure that PM 10 data continues to be collected at Phelps-Dodge's two monitoring sites in the Miami area in a manner that meets Federal monitoring requirements for state and local air monitoring stations (SLAMS) and that ADEQ commits to entering the data into AQS on a periodic basis. ADEQ has submitted sufficient evidence supporting such commitments in the form of two letters: a letter dated May 15, 2006 from Alan H. Binegar, Smelter Manager, Phelps-Dodge Miami Inc. to Nancy Wrona, Director, Air Quality Division, ADEQ, and a letter dated January 19, 2007 from Nancy C. Wrona, Director, Air Quality Division, ADEQ, to Deborah Jordan, Director, Air Division, EPA-Region IX. Specifically, in its May 15, 2006 letter, Phelps-Dodge agrees to submit calibration records and supporting documentation for its PM 10 monitors to ADEQ with future quarterly PM 10 reports. In its January 19, 2007 letter, ADEQ commits to begin entering data collected during 2006 by March 1, 2007, to complete the entry of 2006 data into AQS by the end of June 2007, and to continue entry of 2007 and subsequent data following applicable EPA quality assurance procedures and validation. We interpret ADEQ's commitment to mean that by the end of 2007, ADEQ will be entering Miami PM 10 monitoring data collected by Phelps-Dodge on the same quarterly schedule as required for SLAMS. If Phelps-Dodge or ADEQ fails to fulfill the monitoring-related commitments set forth in the letters dated May 15, 2006 and January 19, 2007, then we can no longer be assured of the continued attainment of the PM 10 NAAQS in the Miami area, and a failure to provide current, valid, publicly available PM 10 data will have the same consequence as a measured violation of the PM 10 NAAQS. In either event, the rationale for determining that the CAA requirements discussed above no longer apply in the Miami area will no longer exist, and as a result, we will take action to withdraw our finding that the Miami area is attaining the standard and withdraw our related determination with respect to certain CAA requirements discussed above. Then, the State of Arizona would again be required to submit the pertinent CAA requirements for this nonattainment area. IV. Corrections to the Arizona PM 10 Table in 40 CFR Part 81 In today's notice, we are also correcting two errors in the table found in 40 CFR part 81 (specifically, 40 CFR 81.303) listing the area designations within the State of Arizona for the PM 10 NAAQS. CAA section 110(k)(6) provides EPA with authority to correct errors in rulemakings involving, among other things, area designations and classifications. First, we are fixing a typographical error in the listing for Payson in the PM 10 table. This error was introduced into the table in a final rule redesignating the Payson area to attainment. See 67 FR 43013 (June 26, 2002). In the June 2002 final rule, we inadvertently listed one of the townships that comprise the Payson air quality planning area as “T01N, * * *” while intending “T10N, * * *.” See 67 FR 43013, at 43019. We are correcting the listing in this notice. Second, we are correcting the erroneous deletion of the designation for “rest of state” in the Arizona PM 10 table in 40 CFR 81.303. This error occurred in two stages. First, in a 1996 final rule, we inadvertently included “rest of state” under the listing for Mohave County. See 61 FR 21372, at 21378 (May 10, 1996). Then, in a final rule published on February 15, 2002, we inadvertently deleted the “rest of state” listing entirely. See 67 FR 7082, at 7085 (February 15, 2002). In this notice, we are correcting this error by restoring the “rest of state” designation (“unclassifiable”) as a separate listing in the Arizona PM 10 table. V. EPA's Final Action Under section 107(d)(3)(D) of the Clean Air Act, EPA is approving the State of Arizona's redesignation of the Hayden/Miami PM 10 nonattainment area into two separate but adjoining PM 10 nonattainment areas (Hayden and Miami) as submitted on June 20, 2006 and making the changes to the table in 40 CFR part 81 that shows Arizona PM 10 area designations accordingly. EPA is approving this boundary redesignation based on topographical, meteorological, and other air quality-related factors that demonstrate that Hayden and Miami areas lie in different airsheds with little or no cross-airshed transport of PM 10 . Together, the two new PM 10 nonattainment areas cover the same geographic area as the original Hayden/Miami PM 10 nonattainment area and retain a “moderate” classification with respect to the PM 10 NAAQS. The approved boundary between the two new areas roughly traces the ridgeline of the Pinal Mountains. We also find that the Miami PM 10 nonattainment area is attaining the PM 10 NAAQS. Our finding of attainment is based on quality-assured data that meet the requirements of 40 CFR part 50, appendix K for the period 2003-2005. 13 13 The two actions we are taking today, the boundary redesignation and the finding of attainment, should be distinguished from an action to redesignate an area from “nonattainment” to “attainment” under CAA section 107(d)(3). There are a number of prerequisite conditions that must be met before we can approve a State's request to change (i.e., “redesignate”) the air quality planning status of an area from “nonattainment” to “attainment,” including, among other conditions, approval of a maintenance plan meeting the requirements of section 175A of the CAA. See section 107(d)(3)(E) of the Act. Thus, the classification and designation status in 40 CFR part 81 will remain moderate nonattainment for the Miami PM 10 area until such time as the State of Arizona meets the CAA requirements under section 107(d)(3)(E) for redesignation of the Miami area to attainment. EPA also finds that, because the Miami area is attaining the NAAQS, the following CAA requirements are not applicable for so long as the Miami area continues to attain the PM 10 standard: the part D, subpart 4 obligations to provide an attainment demonstration pursuant to section 189(a)(1)(B), the RACM provisions of 189(a)(1)(C), the RFP provisions established by section 189(c)(1), and the attainment demonstration, RACM, RFP and contingency measure provisions of part D, subpart 1 contained in section 172 of the Act. Because our determination with respect to the above CAA requirements relies on the existence of current, valid, publicly-available monitoring data, we are making our determination contingent upon fulfillment of commitments made by Phelps-Dodge and ADEQ in letters dated May 15, 2006 and January 19, 2007 to submit such data from the two current PM 10 monitoring sites in the Miami area to EPA's AQS. If the commitments made by Phelps-Dodge and ADEQ are not fulfilled or if the data shows a violation of the standard, then EPA will act to withdraw the attainment finding and withdraw the related determination with respect to the CAA requirements listed above. Lastly, under CAA section 110(k)(6), we correct two errors that were introduced into the “Arizona—PM 10 ” table in 40 CFR 81.303 in previous rulemakings. First, we correct a typographical error in the listings of townships that define the Payson air quality planning area. Second, we correct the erroneous deletion of the designation for “rest of state” by restoring the “rest of state” designation (“unclassifiable”) as a separate listing in the Arizona PM 10 table. We are publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal should adverse comments be filed. This action will be effective May 29, 2007, without further notice unless the EPA receives relevant adverse comments by April 27, 2007. If we receive such comments, then we will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 29, 2007 and no further action will be taken on the proposed rule. VI. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely redesignates a boundary of an air quality planning area, makes a determination based on air quality data, and suspends certain requirements that otherwise would apply and does not impose any additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule does not impose any additional enforceable duty, 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 rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 97249, 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 redesignates a boundary of an air quality planning area, makes a determination based on air quality data, and suspends certain requirements that otherwise would apply and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 29, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Dated: March 20, 2007. Wayne Nastri, Regional Administrator, Region 9. Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart C—[Amended] 2. In § 81.303, the table entitled “Arizona—PM 10 ” is amended by revising the entries for Pinal and Gila Counties and Gila County and by adding an entry for “rest of state” to read as follows: § 81.303 Arizona. Arizona—PM 10 Designated Area Designation Date Type Classification Date Type * * * * * * * Pinal and Gila Counties: Hayden planning area T1S, R13E (sections 7-36); T1S, R14E (sections 25-36);T2S, R13E; T2S, R14E; T2S, R15E; T3S, R13E; T3S, R14E; T3S, R15E; T3S, R16E (except that portion in the San Carlos Apache Indian Reservation); T4S, R13E; T4S, R14E; T4S, R15E; T4S, R16E; T5S, R13E; T5S, R14E; T5S, R15E; T5S, R16E; T6S, R13E; T6S, R14E; T6S, R15E; and T6S, R16E 11/15/90 Nonattainment 11/15/90 Moderate. Miami planning area T1N, R13E; T1N, R14E; T1N, R15E; T1S, R13E (sections 1-6); T1S, R14E (sections 124); T1S, R14 1/2 E; and T1S, R15E 11/15/90 Nonattainment 11/15/90 Moderate. Gila County (part): Payson: T10N, sections 1-3, 10-15, 22-27, and 34-36 of R9E; T11N, sections 1-3, 10-15, 22-27, and 34-36 of R9E; T10-11N, R10E; T10N, sections 4-9, 16-21, and 28-33 of R11E; T11N, sections 4-9, 16-21, and 28-33 of R11E 08/26/02 Attainment * * * * * * * Rest of State 11/15/90 Unclassifiable [FR Doc. E7-5663 Filed 3-27-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2004-0507, FRL-8291-3] RIN 2060-AN11 Protection of Stratospheric Ozone: Listing of Ozone Depleting Substitutes in Foam Blowing AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: Today the Environmental Protection Agency

(EPA)is taking final action to determine that HCFC-22 and HCFC-142b are unacceptable for use in the foam sector under the Significant New Alternatives Policy

(SNAP)program under section 612 of the Clean Air Act. The SNAP program reviews alternatives to Class I and Class II ozone depleting substances and approves use of alternatives which do not present a substantially greater risk to public health and the environment than the substance they replace or than other available substitutes. In prior rulemakings, the Agency listed HCFC-22 and HCFC-142b as unacceptable substitutes in several foam end uses; here, EPA is amending a determination for one category of end-uses and taking the following actions for remaining applications. First, EPA is finding HCFC-22 and HCFC-142b unacceptable as substitutes for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and “other” rigid polyurethane foams and removing narrowed use limits previously established in those applications. Second, EPA is finding HCFC-22 and HCFC-142b unacceptable as substitutes for CFCs in all foam end-uses. Third, the Agency is establishing a grandfathering period to allow existing users of HCFC-22 and HCFC-142b in pour foam applications, including commercial refrigeration, sandwich panels, and slabstock and “other” rigid polyurethane foams other than foam for marine applications, until March 1, 2008 to implement alternatives; existing users of HCFC-22 and HCFC-142b foam blowing agents in the manufacture of foam for marine applications ( *e.g.* , flotation foam) will be allowed to continue use of these blowing agents until September 1, 2009. Fourth, the Agency is grandfathering existing users of HCFC-22 and HCFC-142b in extruded polystyrene

(XPS)foam and in all other foam end uses until January 1, 2010 in order to allow time for those users to complete their transition to alternatives. DATES: This final rule is effective on May 29, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2004-0507. 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 copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Air and Radiation 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: Jeff Cohen, Stratospheric Protection Division, Office of Atmospheric Programs (6205J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:

(202)343-9005; fax number:

(202)343-2363; e-mail address: *cohen.jeff@epa.gov* . The published versions of notices and rulemakings under the SNAP program are available on EPA's Stratospheric Ozone Web site at *http://www.epa.gov/ozone/snap/regs* . SUPPLEMENTARY INFORMATION: Table of Contents This action is divided into six sections: I. Regulated Entities II. Section 612 Program A. Statutory Requirements B. Regulatory History C. Listing Decisions III. Background IV. Listing Decisions on HCFC-22 and HCFC-142b in the Foam Sector V. Response to Comments VI. Summary VII. 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 & Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Congressional Review Act VIII. Additional Information IX. References I. Regulated Entities Today's rule regulates the use of HCFC-22 and HCFC-142b as foam blowing agents used in the manufacture of rigid polyurethane/polyisocyanurate and extruded polystyrene foam products. Businesses that currently might be using HCFC-22 and HCFC-142b, or might want to use it in the future, include: —Businesses that manufacture polyurethane/polyisocyanurate foam systems. —Businesses that use polyurethane/polyisocyanurate systems to apply insulation to buildings, roofs, pipes, etc. —Businesses that manufacture extruded polystyrene foam insulation for buildings, roofs, pipes, etc. Table 1 lists potentially regulated entities: Table 1.—Potentially Regulated Entities, by North American Industrial Classification System (NAICS) Code or Subsector Category NAICS code or subsector Description of regulated entities Industry 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. Industry 326140 Polystyrene Foam Product Manufacturing. This table is not intended to be exhaustive, but rather a guide regarding entities likely to be regulated by this action. If you have any questions about whether this action applies to a particular entity, consult the person listed in the preceding section, FOR FURTHER INFORMATION . II. Section 612 Program A. Statutory Requirements Section 612 of the Clean Air Act

(CAA)requires EPA to develop a program for evaluating alternatives to ozone depleting substances (ODS). EPA refers to this program as the Significant New Alternatives Policy

(SNAP)program. The major provisions of section 612 are: • *Rulemaking* —Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that

(1)Reduces the overall risk to human health and the environment, and

(2)is currently or potentially available. • *Listing of Unacceptable/Acceptable Substitutes* —Section 612(c) also requires EPA to publish a list of the substitutes unacceptable for specific uses. EPA must publish a corresponding list of acceptable alternatives for specific uses. • *Petition Process* —Section 612(d) grants the right to any person to petition EPA to add a substitute to or delete a substitute from the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. When the Agency grants a petition, EPA must publish the revised lists within an additional six months. • *90-Day Notification* —Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify EPA not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide EPA with the producer's health and safety studies on such substitutes. • *Outreach* —Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications. • *Clearinghouse* —Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances. B. Regulatory History On March 18, 1994, EPA published a rule (59 FR 13044) describing the process for administering the SNAP program and issued EPA's first acceptability lists for substitutes in the major industrial use sectors. These sectors include: refrigeration and air conditioning, foam manufacturing, solvents cleaning, fire suppression and explosion protection, sterilants, aerosols, adhesives, coatings and inks, and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed large volumes of ozone-depleting compounds. EPA defines a “substitute” as any chemical, product substitute, or alternative manufacturing process, whether existing or new, that could replace a class I or class II substance (40 CFR 82.172). Anyone who produces a substitute must provide EPA with health and safety studies about the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative (40 CFR 82.174(a)). This requirement applies to chemical manufacturers, but may include importers, formulators, or end users when they are responsible for introducing a substitute into commerce. C. Listing Decisions In the original 1994 SNAP rule, the Agency identified four possible decision categories: acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable (40 CFR 82.180(b)). Fully acceptable substitutes, *i.e.* , those with no restrictions, can be used for all applications within the relevant sector end use. After reviewing a substitute, EPA may make a determination that a substitute is acceptable only if certain conditions of use are met to minimize risk to human health and the environment. Such substitutes are described as “acceptable subject to use conditions.” Even though EPA can restrict the use of a substitute based on the potential for adverse effects, it may be necessary to permit a narrowed range of use within a sector end use because of the lack of alternatives for specialized applications. Users intending to adopt a substitute acceptable with narrowed use limits must first ascertain that other acceptable alternatives are not technically feasible. Companies must document the results of their evaluation, and retain the results on file for the purpose of demonstrating compliance. This documentation must include descriptions of substitutes examined and rejected, processes or products in which the substitute is needed, reason for rejection of other alternatives ( *e.g.* , performance, technical or safety standards), and the anticipated date other substitutes will be available and projected time for switching to other available substitutes. The use of such substitutes in applications and end uses which are not specified as acceptable in the narrowed use limit is unacceptable and violates Section 612 of the CAA and the SNAP regulations (40 CFR 82.174). EPA does not believe that notice and comment rulemaking procedures are required to list alternatives as acceptable with no restrictions. Such listings do not impose any sanction, nor do they remove any prior license to use a substitute. Consequently, EPA adds substitutes to the list of acceptable alternatives without first requesting comment on new listings (59 FR 13044). Updates to the acceptable lists are published as separate Notices of Acceptability in the **Federal Register** . As described in the original March 18, 1994 rule for the SNAP program (59 FR 13044), EPA believes that notice-and-comment rulemaking is required to place any alternative on the list of prohibited substitutes, to list a substitute as acceptable only under certain use conditions or narrowed use limits, or to remove an alternative from either the list of prohibited or acceptable substitutes. III. Background A major goal of the SNAP program is to facilitate the transition away from ODS to alternatives that pose less risk to human health and the environment. In 1994, EPA listed several HCFCs as acceptable replacements for CFCs 1 because the Agency believed that HCFCs provided a temporary bridge to alternatives that do not deplete stratospheric ozone. At that time, EPA believed that HCFCs were necessary transitional alternatives to CFC blowing agents in thermal insulating foam (59 FR 13083). As a result, HCFC-141b, HCFC-22 and HCFC-142b became common foam blowing agents in place of CFCs. Pursuant to the CAA and the *Montreal Protocol on Substances that Deplete the Ozone Layer* , HCFC-141b was phased out of production and import in the United States on January 1, 2003, and HCFC-22 and HCFC-142b are scheduled to be phased out of production and import on January 1, 2010. 2 Since the time EPA initially listed HCFC-22 and HCFC-142b as acceptable in certain foam blowing uses, the Agency has listed several other non-ODS alternative blowing agents, including hydrofluorocarbons (HFCs), hydrocarbons, carbon dioxide, and other compounds, as acceptable substitutes in foam blowing. 3 1 Historically, CFC-11, CFC-12, CFC-113 and CFC-114 have all been used as blowing agents in the foam industry, with CFC-11 in polyurethane applications and CFC-12 in extruded polystyrene boardstock applications being the two most popular CFC blowing agents (March 18, 1994, 59 FR 13082). 2 The phaseout schedule was established on December 10, 1993 (58 FR 65018) as authorized under section 606 of the Clean Air Act. 3 These listings are published in the following **Federal Register** notices: September 3, 1996 (61 FR 47012), March 10, 1997 (62 FR 10700), June 3, 1997 (62 FR 30275), February 24, 1998 (63 FR 9151), June 8, 1998 (64 FR 30410), December 6, 1999 (64 FR 68039), April 11, 2000 (65 FR 19327), June 19, 2000 (65 FR 37900), December 18, 2000 (65 FR 78977), August 21, 2003 (68 FR 50533) and October 1, 2004 (69 FR 58903). In a final rule published on July 22, 2002, EPA:

(1)Found HCFC-22 and HCFC-142b acceptable substitutes for HCFC-141b with narrowed use limits in the foam end uses of commercial refrigeration, sandwich panels, and rigid polyurethane slabstock and “other” foams end uses;

(2)deferred a final decision on our proposed decision to list HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs for all foam end uses;

(3)listed HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in the foam end uses of rigid polyurethane/polyisocyanurate laminated boardstock, rigid polyurethane appliance foam and rigid polyurethane spray foam; and

(4)listed HCFC-124 as an unacceptable substitute in all foam end uses. 4 4 At the time of the 2002 final rule, EPA concluded that viable alternatives to HCFC-141b had not been fully developed across all applications, particularly those with thermal performance requirements (67 FR 47707) and established Narrowed Use Limits for specific end uses to provide formulators and manufacturers who found that alternatives to HCFC-141b were not technically viable the flexibility to switch to the less harmful ozone depleting chemicals of HCFC-22 and HCFC-142b. The Notice of Proposed Rulemaking

(NPRM)published on November 4, 2005 (70 FR 67120) proposed again taking action with respect to two of the actions addressed in the July 2002 rule. First, in response to a court ruling vacating the Narrowed Use Limits established in the 2002 final rule ( *Honeywell Int'l* v. *EPA* , 374 F.3d 1363 (D.C. Cir 2004), *modified on rehearing* 393 F.3d 1315 (DC Cir. 2005)), 5 EPA proposed to list HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and “other” foam, but proposed to grandfather existing users until January 1, 2010. Second, EPA proposed to list HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs in all foam end uses, but to grandfather existing users until January 1, 2010. 5 After publication of the July 22, 2002 final rule, Honeywell International filed suit in the United States Court of Appeals for the District of Columbia Circuit (the Court), challenging the Narrowed Use Limits that the Agency established for HCFC-22 and HCFC-142b. Honeywell alleged that EPA improperly considered costs in establishing Narrowed Use Limits instead of finding HCFC-22 and HCFC-142b unacceptable for certain end uses. EPA argued that the decision was based solely on technical feasibility and, though not precluded from considering costs, it had not done so as part of the decision. The Court upheld Honeywell's challenge, explaining that various preamble statements indicated that EPA had considered costs, but that EPA had not explained the basis for doing so. In light of the Court's decision, EPA was required to reassess its action with respect to the acceptability of HCFC-22 and HCFC-142b as substitutes for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and “other” foam. After considering new information on alternatives, the Agency proposed finding HCFC-22 and HCFC-142b unacceptable as substitutes for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and “other” foam applications based on the technical viability of alternatives. The Agency published a Notice of Data Availability

(NODA)on May 26, 2006 to make available to the public additional information received subsequent to the public comment period for the November 4, 2005 NPRM. The NODA summarized two reports on the availability and technical viability of alternatives in the polyurethane “pour foam” and the extruded polystyrene

(XPS)foam industries, and produced evidence that a shorter grandfathering period for existing users in pour foam applications was appropriate. Pour foam applications include commercial refrigeration foam, sandwich panels, and slabstock and “other” foam. Based on the information contained in the NPRM and the NODA, the information published in the corresponding docket (EPA-HQ-OAR-2004-0507), and the comments to the NPRM and to the NODA, EPA is establishing a shorter grandfathering period than what we proposed in the 2005 NPRM for pour foam applications, while finalizing the proposed grandfathering date for XPS and other foam applications. The section below presents a detailed discussion of the decisions being made today. IV. Listing Decisions on HCFC-22 and HCFC-142b in the Foam Sector

(1)HCFC-22, HCFC-142b and Blends Thereof Are Unacceptable as Substitutes for HCFC-141b in the Foam End Uses of Commercial Refrigeration, Sandwich Panels, and Slabstock and “Other” Foam Commercial refrigeration, sandwich panels, and slabstock and “other” foam end uses (also referred to as “pour foam”) comprise a diverse set of products manufactured by pour foam processes with a wide range of applications including walk-in coolers, garage doors, water heaters, refrigerated transport, refrigerated vending machines and ice bins, insulated drink dispensers, residential architectural panels, tank and pipe insulation, marine flotation foams, floral foam and taxidermy foam. For these pour foam end uses and applications, the information received by the Agency since 2002 demonstrates that several SNAP-approved, non-ODS alternatives including hydrocarbons, HFC-245fa, HFC-134a, methyl formate and water, are widely available, technically viable, and are being sold in the market today. (Docket # EPA-HQ-OAR-2004-0507, Documents 0002 through 0042). This listing will be effective 60 days following publication in the **Federal Register** . However, EPA is allowing ( *i.e.* , grandfathering) existing users of HCFC-22 and HCFC-142b, as of November 4, 2005, in these end uses other than marine applications to continue use of those HCFCs until March 1, 2008; use of HCFC-22 and HCFC-142 in manufacture of foam for marine applications will be allowed to continue until September 1, 2009. 6 The Agency believes this time is needed for existing users to transition to alternatives (see discussion below on grandfathering existing users in pour foam applications). 6 In this context, existing use is defined as current use of HCFC-22 and/or HCFC-142b to manufacture actual foam products that are sold into commercial markets. The decision to grandfather is based on the criteria established in *Sierra Club* v. *EPA* (719 F.2D 436 (DC CIR. 1983)). The criteria EPA examines to judge the appropriateness of grandfathering include:

(1)Is the new rule an abrupt departure from Agency practice,

(2)what is the extent the interested parties relied on the previous rule,

(3)what is the burden of the new rule on the interested parties and

(4)what is the statutory interest in making the new rule effective immediately, as opposed to grandfathering interested parties (59 FR 13057). This listing replaces the July 22, 2002 rulemaking that listed HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b, subject to narrowed use limits, in commercial refrigeration, sandwich panels, and slabstock and other foams.

(2)HCFC-22 and HCFC-142b and Blends Thereof Are Unacceptable as Substitutes for CFCs in All Foam End Uses EPA's final determination that the use of HCFC-22 and HCFC-142b as substitutes for CFCs in all foam end uses is unacceptable is based on the availability and potential availability of a number of viable alternatives, including HFC-134a, HFC-152a, CO2, hydrocarbons, ethanol, water, and formulations under development. This final action applies to all foam end uses although we are unaware of any current use of HCFC-22 and HCFC-142b foam blowing agents other than in pour foam applications and XPS. As with existing users who substituted for HCFC-141b, EPA is grandfathering existing users of HCFC-22 and HCFC-142b in pour foam applications. Existing users can continue their use of HCFC-22 and HCFC-142b until March 1, 2008 for pour foam applications other than marine, and September 1, 2009 for marine applications, because of the time needed to implement alternatives. Unlike pour foam applications, U.S. extruded polystyrene

(XPS)manufacturers have not yet implemented alternatives to HCFC-22 and HCFC-142b due to technical challenges. Accordingly, EPA is grandfathering existing users of HCFC-22 and HCFC-142b, as of November 4, 2005, in the

(XPS)foam end-use 7 and all other foam applications besides pour foam until January 1, 2010. As discussed below, the Agency believes this time is needed for existing XPS users to complete a transition to alternatives while meeting technical and performance requirements related to building codes and insulation efficiency. 7 For simplicity, polystyrene used here refers to polystyrene extruded boardstock or billet (plank), rather than all polystyrene products—some of which never used HCFCs, such as thin polystyrene foam sheet used for plates and cups. This listing will be effective 60 days following publication in the **Federal Register** , with the grandfathering dates of March 1, 2008 for existing users in pour foam applications other than marine, September 1, 2009 for existing users in marine applications, and January 1, 2010 for existing users in XPS and all other foam applications.

(3)Grandfathering Existing Users of HCFC-22 and HCFC-142b in Pour Foam Applications Other Than Marine, Including Commercial Refrigeration, Sandwich Panels, and Slabstock and “Other” Foam Grandfathering allows those who made a good faith transition to a SNAP-approved alternative sufficient time to transition to a different alternative while prohibiting new users from investing in an alternative that no longer meets the test for being SNAP-approved ( *i.e.* , other alternatives that provide less risk to human health and the environment are available). In the November 4, 2005 NPRM, EPA proposed to find HCFC-22 and HCFC-142b unacceptable as substitutes for HCFC-141b in pour foam end uses, but proposed to grandfather existing users, as of November 4, 2005 (the date of the proposal), until January 1, 2010. Similarly, EPA proposed to find HCFC-22 and HCFC-142b unacceptable as substitutes for CFCs in all foam end uses, but proposed to grandfather existing users, as of November 4, 2005, until January 1, 2010. At the time of the 2005 proposal, the Agency believed that existing users of HCFC-22 and HCFC-142b in all foam applications could require up to four years ( *i.e.* , until January 1, 2010 based on the projected effective date of the final rule) for a safe transition to non-ODS alternatives. Nevertheless, the Agency strongly encouraged all existing users of HCFC-22 and HCFC-142b to begin their transition to alternatives immediately and to complete the transition as soon as possible prior to January 1, 2010. 8 8 Similarly, at the time of the 2002 final rule, the Agency stated: “EPA is continuing to review the commercial refrigeration, sandwich panels, and slabstock and other foams end uses to determine the progress of non-ozone depleting alternatives. As non-ozone depleting alternatives become more widely available, the Agency will reevaluate the acceptability of HCFCs in these end uses. Therefore, foam manufacturers within these applications that are using HCFCs should begin using non-ozone depleting alternatives as soon as they are available in anticipation of future EPA action restricting the use of HCFCs” (67 FR 47704). The comments received on the 2005 NPRM can be split into two major categories, those related to pour foam applications and those related to XPS foam applications. The majority of commenters that addressed pour foam applications disagreed with the proposed grandfathering date of January 1, 2010 and argued for acceleration in the required transition, specifically, the elimination of any grandfathering provision whatsoever, or alternatively, a grandfathering date between 2006 and 2008. These commenters noted that several SNAP-approved non-ozone depleting alternatives, including hydrocarbons, HFC-245fa, HFC-134a, HFC-152a, CO2, water, methyl formate, and others are readily available through multiple formulators or systems houses 9 and technically viable (Docket # EPA-HQ-OAR-2004-0507, Documents 0004-0007, 0010, 0011, 0015, 0017, 0020, 0021, 0025, 0026, 0028, 0031, 0041, 0045). Based on these comments, the Agency commissioned Stratus Consulting Inc. to evaluate the transition to non-ODS blowing agents in the different pour foam applications. The study, made available to the public as part of the May 26, 2006 NODA (71 FR 30353), was based on available information on the industry and alternative blowing agents, as well as on a series of interviews with representatives of systems houses and end use manufacturers (Docket # EPA-HQ-OAR-2004-0507, Document 0038). 9 Pour foam manufacturers purchase formulations of blowing agents and other materials as part of pour foam systems from formulators or “systems houses.” There are approximately 20 systems houses in the U.S. that formulate pour foam systems and include both large and small businesses. The onus is typically on the systems houses to research, test and implement alternatives and develop systems that meet technical, safety, and performance requirements. Both the formulators and pour foam manufacturers are subject to SNAP regulations because both use the blowing agent—formulators blend the blowing agent into a foam formulation, and manufacturers produce the foam with aid of the blowing agent. Key conclusions from the 2006 Stratus evaluation, summarized in the May 2006 NODA, were consistent with the majority of public comments to the 2005 NPRM on pour foam, and are presented here (Docket # EPA-HQ-OAR-2004-0507, Document 0038): • Non-ODS alternatives for pour foam applications are available, currently being formulated by systems houses, and technically viable across all pour foam applications. • No technical performance hurdles to using non-ODS alternatives in pour foam were identified that cannot be overcome either through design changes or with support from suppliers and systems houses. • EPA's 2000 proposal on the use of HCFCs in foam manufacturing stated that it can take up to four years to complete blowing agent transitions. The transition requires six steps:

(1)Obtaining new permits or modifying existing permits,

(2)changing equipment to optimize production and ensure worker safety,

(3)establishing raw material suppliers,

(4)developing formulations,

(5)testing final products, and

(6)obtaining final product review and approval by relevant boards and agencies. Companies that chose to plan ahead for the eventual phase-out of HCFC-22 and HCFC-142b could have initiated this process in the period from 2002 to 2003, when the current suite of alternatives became available, if not before, and could have completed the first four steps by the current date. Thus, these companies could anticipate completing their conversion by 2006 or 2007 in pour foam applications. • Those companies that have not taken the initial steps to transition to non-ODS blowing agents in pour foam should be able to have market-ready products by January 2008. This is based on two findings. First, most if not all, systems houses have already developed non-ODS formulations; and second, several manufacturers of finished pour foam products (including walk-in storage coolers, reach-in storage coolers, metal panels, insulated beverage dispensers, picnic coolers, and entry and garage doors) were able to convert to non-ODS formulations within 18 months, and in many cases, as rapidly as 6 to 8 months. • Pour foam formulators and manufacturers should be allowed sufficient time to complete the conversions, including testing final products, obtaining final review and approval from customers, code bodies, and agencies. Based on their findings, RJR Consulting and Stratus Consulting (2006a) concluded that “it is probable that end users will be able to complete the final steps for a successful conversion in 9-14 months.” The 2006 Stratus evaluation did not explicitly address the use of HCFC-22 and HCFC-142b in marine applications which are discussed below. Comments to the May 2006 NODA, summarized below, supported the major conclusions of the Stratus evaluation and help form the basis for the Agency's determination in this action. Based on the information provided to EPA since the publication of the final rule in July 2002, including the comments to the 2005 NPRM and the 2006 NODA, EPA believes today that alternatives are widely available, technically viable, and in use in pour foam applications (Docket # EPA-HQ-OAR-2004-0507, Documents 0004-0017 and Comments 0020, 0022, 0025, 0026, 0028, 0031, 0041 and 0045). The Agency also concludes based on the available information that existing users of HCFC-22 and HCFC-142b in pour foam, other than marine applications, will be able to transition to non-ODS alternatives by March 1, 2008. It is possible that a foam manufacturer may have unique technical constraints in making a transition to non-ODS alternatives by March 1, 2008. One possible scenario is that of a manufacturer that currently operates in only one facility that does not own (and leases), and is scheduled to transition to a non-ODS alternative to coincide with the move to a new facility and installation of new process equipment that cannot be completed by March 1, 2008. In addition, for this situation, making an interim transition to a non-ODS alternative at the current facility would not be possible because of the time needed to get fire safety and industry code approvals. In this specific situation, the Agency believes it is appropriate for that manufacturer's use of HCFC-22 or HCFC-142b to be grandfathered until January 1, 2010. For this situation, the manufacturer should retain documentation for possible inspection that includes the following information: 1—Description of the applications served by the use of HCFC-22 or HCFC-142b; 2—verifiable documentation showing that the manufacturer operates out of only one facility that the manufacturer does not own; 3—verifiable documentation of land purchase or construction plans for a new facility that pre-dates publication of this rule; 4—verifiable documentation showing that the manufacturer has contracted for purchase of new process equipment to use a non-ODS alternative;

(4)Grandfathering Existing Users of HCFC-22 and HCFC-142b in Marine Applications Boats use foam for buoyancy and for structural integrity. Comments received subsequent to publication of the NODA raised concern that boat manufacturers would not be able to accelerate their conversion to non-ODS alternatives at the same pace as in other pour foam sectors (NMMA, 2006, Lewit, 2007). Unlike other pour foam applications, new blowing agent formulations used for marine flotation have to meet U.S. Coast Guard buoyancy tests. In addition, new formulations must be tested to ensure that the boat structure can withstand pressure under stressful conditions. For many boat manufacturers, these tests must be done with assistance from systems houses who will be also working with customers in other pour foam end-uses. EPA believes that non-ODS alternatives are available for marine applications, and that boat manufacturers working with systems houses can convert from HCFCs to non-ODS within the same time frame discussed previously for other pour foam applications. However, the Agency also believes that boat manufacturers need additional time compared to other pour foam applications to ensure that new formulations produce flotation foam that meets the safety and performance requirements for boats. Based on the available information pertaining to the projected workload of systems houses and of the technological feasibility in adopting new formulations, the Agency believes that existing users of HCFC-22 and HCFC-42b for foam in marine applications will be able to transition to non-ODS alternatives by September 1, 2009.

(5)Grandfathering Existing Users of HCFC-22 and HCFC-142b in Extruded Polystyrene Foam

(XPS)As stated above, in the 2005 NPRM, EPA proposed to find HCFC-22 and HCFC-142b unacceptable as substitutes for CFCs in all foam end uses, but proposed to grandfather existing users, as of November 4, 2005 (the date of the proposal) until January 1, 2010. For the XPS foam end use only, EPA is finalizing its proposal to allow existing users of HCFC-22 and HCFC-142b, as of November 4, 2005, until January 1, 2010 to transition to non-ODS alternatives based on our analysis under the four-part test for grandfathering established in *Sierra Club* v. *EPA.* 10 The Agency believes this transition period is needed based on continuing technical challenges in developing non-ODS alternatives for XPS that meet product performance specifications related to building codes and insulation efficiency. 10 Other than pour foam applications, discussed above, and extruded polystyrene, the Agency is not aware of other foam end uses still dependent on HCFC-22 or HCFC-142b blowing agents; however, if there are users of HCFC-22 or HCFC-142b in other foam end uses, they will also be grandfathered. U.S. XPS manufacturers have invested in the research and development of alternatives and are in final stages of formulation to conform to the January 1, 2010 production phase-out deadline for HCFC-142b and HCFC-22 (Docket # EPA-HQ-OAR-2004-0507, Documents 0002 and 0039). XPS manufacturers project that based on the January 1, 2010 phase-out date, formulations of non-ODS alternatives will need to be developed by mid-2007, with the remaining time used to install manufacturing line upgrades, which can take up to 18 months; perform plant qualification runs, which can take 6-9 months; and obtain code body and agency product approvals, which can take 9-12 months. Accordingly, existing manufacturing lines need until January 1, 2010, to complete equipment conversions, produce the new products at full scale, and get the products qualified by builders and other XPS customers, and code bodies (Docket # EPA-HQ-OAR-2004-0507, Documents 0002 and 0039). Based on the transition requirements described above, EPA believes it is appropriate that existing users of HCFC-22 and HCFC-142b, as of November 4, 2005, in XPS applications be allowed to continue using these chemicals until January 1, 2010 in order to ensure a safe transition to non-ODP alternative blowing agents. Regarding EPA's decision to allow grandfathering in both pour foam and XPS foam applications, the SNAP program is designed to encourage the transition away from ozone depleting chemicals. However, the balance of the factors specific to existing use of HCFC-22 and HCFC-142b in pour foam and XPS foam applications outweigh EPA's statutory interest in applying the unacceptability determination immediately to all users. EPA believes its goal of encouraging the transition away from ozone depleting chemicals is still satisfied as new use of these substances will not be permitted, and existing users will continue their transition to non-ODP alternatives as quickly as is feasible. EPA strongly encourages all existing users of HCFC-22 and HCFC-142b to begin their transition to alternatives immediately and to complete the transition as soon as possible prior to the applicable grandfathering deadlines. V. Response to Comments Grandfathering Existing Users of HCFC-22 and HCFC-142b in the Pour Foam End Use A number of comments from the different components of the polyurethane pour foam industry (chemical manufacturing, formulator/systems house, end-product manufacturing) supported the Agency's proposal to list HCFC-22 and HCFC-142 as unacceptable substitutes for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and other foam; and the proposal to list HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs (for pour foam applications). Many of these same comments, however, disagreed with the Agency's proposal to grandfather existing use of HCFC-22 and HCFC-142b in pour foam until 2010. Some comments argued for elimination of the grandfathering period while others advocated a shorter period ranging from July 1, 2006 to January 1, 2008. These comments were based on experiences in successfully converting to non-HCFC blowing agents either at the formulation stage or at the end-product stage considerably faster ( *i.e.* , less than 1-2 years) than the four years the Agency originally projected to be needed. One of those commenting noted that a two-year grandfathering period to January 2008 would be “excessively generous” to those few systems houses which have not already transitioned to non-ODS alternatives given today's wide availability of non-ODS, off-the-shelf products (Docket # EPA-HQ-OAR-2004-0507, Documents 0022, 0022.1 and 0027). Several comments on this issue made in response to the May 2006 NODA also advocated the elimination or shortening of the grandfathering period to either January 1, 2007 or 2008. In contrast, one systems house agreed with the Agency's proposal to allow users of HCFC-22 until January 1, 2010 before transitioning to non-ODS alternatives, claiming the pour foam manufacturers originally switched to HCFC-22 with the understanding they would face no restrictions on the use of the chemical until it was phased out of production in 2010. This commenter stated the “final rulemaking has to be perfectly clear, free of any risk of further meddling, either by EPA or big business, and must fairly consider those who spent the money and time to change to 22

(sic)ahead of schedule. Prematurely forcing users out of HCFC-22 is forcing them out of business.” (Docket # EPA-HQ-OAR-2004-0507, Documents 0008 and 0029). Another formulator provided similar comments on the May 2006 NODA, arguing that many of its customers who are small businesses have not begun new product trials and the conversion process. This commenter disagreed with a conclusion in the Stratus report that end users will be able to complete the final steps for a successful conversion in 9-14 months because that was not enough time for a systems house to support each of its customer's unique technical needs in completing a transition (Docket # EPA-HQ-OAR-2004-0507, Documents 0044 and 0044.1). Two comments representing boat builders indicated that unique safety and structural testing were required for marine flotation applications and that the numerous small businesses in that industry would be challenged to safely accelerate their conversions to non-ODS alternatives (Docket # EPA-HQ-OAR-2004-0507, Documents 0046 and 0047). They claimed that the boat manufacturing industry was not aware of EPA's May 2006 NODA. The Agency agrees with commenters who argued a shorter grandfathering period is appropriate as it applies to pour foam applications. Numerous non-ODS alternatives are available proven to meet technical specifications and market needs, and the majority, if not all systems houses, have developed non-ODS formulations. There are now numerous examples of systems houses and pour foam manufacturers, across multiple product sectors and end uses, who have successfully converted to non-ODS alternatives within 6-18 months (Docket # EPA-HQ-OAR-2004-0507, Documents 0010, 0015, 0038 and 0041). Furthermore, since at least 1992, the foam industry has been aware of the 2010 production phaseout of HCFC-22 and HCFC-142b and all users should by now have made substantial progress in transitioning to alternatives. Since at least 2000, the Agency has consistently explained its intention of reviewing the availability and viability of alternatives in the context of a SNAP restriction on use of HCFC-22 and HCFC-142b, and has consistently encouraged users of these chemicals to complete their transition as soon as possible (65 FR 42653, 67 FR 47703, 70 FR 67120, and 71 FR 30353). For these reasons, the Agency disagrees with the comments in support of the January 1, 2010 grandfathering deadline for pour foam applications. The argument that small businesses will be severely affected if they cannot continue to use HCFC-22 after January 1, 2008 is not consistent with the fact that many small businesses completed transitions to non-ODS alternatives within 12 months, and in several cases, as early as 6-8 months (Docket # EPA-HQ-OAR-2004-0507, Documents 0010, 0015, 0038 and 0041). Further, small and large businesses who manufacture doors, commercial refrigeration equipment, and other pour foam products typically rely on systems houses to develop and test formulations specific to their products. There are now a wide range of “off the shelf” non-ODS formulations available to these users (Docket # EPA-HQ-OAR-2004-0507, Documents 0022, 0022.1, 0027 and 0038), and the Agency sees no substantive obstacle for pour foam manufacturers to complete a transition to non-ODS alternatives by March 1, 2008 for applications other than marine. For marine flotation foam and other marine foam applications, the Agency recognizes the need to ensure sufficient time for boat builders to complete their testing of new formulations to meet performance and safety standards ( *e.g.* , Coast Guard), especially considering the diverse nature of the boat industry and the number of boat manufacturers in the U.S. (approximately 3000 according to one commenter, see Docket # EPA-HQ- OAR-2004-0507, Document 0047). Therefore, the Agency has concluded that an additional 18 months compared to other pour foam applications (September 1, 2009) is an appropriate deadline. Grandfathering Existing Users of HCFC-22 and HCFC-142b in the Polystyrene

(XPS)End Use Although pour foam applications and XPS applications both use HCFC-22 and HCFC-142b, the two sets of applications use entirely different foam manufacturing processes and thus face different technical challenges when transitioning to non-ODS alternatives. In commenting on the 2005 NPRM and the 2006 NODA, representatives of XPS manufacturers made the following points: • EPA should withdraw its proposal to list HCFC-142b and HCFC-22 as unacceptable in the foams sector; • The Agency has no authority to designate a substitute previously listed as acceptable as unacceptable without a specific SNAP petition; • If EPA promulgates this unacceptability determination the grandfathering deadline should be January 1, 2010. The Agency disagrees with comments that HCFC-142b and HCFC-22 should not be listed as unacceptable, but agrees that the grandfathering deadline should be January 1, 2010 for XPS foam applications. There are numerous non-ODS alternatives across the foam sector, including for XPS, that are available or potentially available, but the XPS manufacturers have not yet completed implementation of them. While the XPS manufacturers have been working diligently to develop alternatives, the Agency recognizes that there are technical challenges involved in making the transition to the new formulations. Based on the comments from the XPS industry and other available information (Docket # EPA-HQ-OAR-2004-0507, Documents 0002, 0018, 0018.1, 0019, 0019.1, 0023, 0023.1, 0039), the Agency believes that U.S. XPS manufacturers will not be able to complete a transition to non-ODS products that meet technical product specifications related to building codes and insulation efficiency until January 1, 2010. The Agency disagrees with the comment that EPA does not have authority to list previously acceptable substitutes as unacceptable without a specific petition. Section 612 of the Clean Air Act requires the Agency to respond to petitions but places no restriction on the Agency's ongoing review of SNAP determinations. In the preamble to the original SNAP rulemaking, the Agency stated its belief that “section 612 authorizes it to initiate changes to the SNAP determinations independent of any petitions or notifications received. These amendments can be based on new data on either additional substitutes or on characteristics of substitutes previously reviewed.” (59 FR 13047). The Agency has previously listed as unacceptable substitutes that previously were acceptable when new data on their environmental or health risks have become available, or when substitutes that pose less overall risk become available ( *e.g.* , HCFC-141b in foam blowing at 69 FR 58269, HBFC-22B1 in fire suppression at 67 FR 4185, and MT-31 in refrigeration at 64 FR 3861). Definition of Use and Existing User Some of those commenting asked the Agency to clarify the terms “use” and “existing user” of HCFC-22 and/or HCFC-142b, and how the Agency's grandfathering provisions would apply to existing users who are developing expanded or new manufacturing individual facilities that would use HCFC-22 or HCFC-142b. One commenter asked that the Agency only allow operating facilities, or at least, fully permitted facilities, to be grandfathered. The 2005 NPRM defined existing use as “current use of HCFC-22 and/or HCFC-142b to manufacture actual foam products that are sold into commercial markets” (70 FR 67124). EPA explained in the preamble to the 2005 NPRM that grandfathering allows those who had made the good faith transition to a SNAP approved alternative sufficient time to transition to a different alternative while prohibiting new investment in an alternative that no longer meets the test for being SNAP-approved ( *i.e.* , other alternatives that provide less risk to human health and the environment are available)” (70 FR 67124). Grandfathering allows existing users time to adjust their manufacturing processes for a safe transition to non-ODP alternatives. (70 FR 67125). The Agency maintains these principles in establishing the grandfathering provisions in the final rule. In the case of an expanded or new facility where use of HCFC-22 or HCFC-142b has not actually begun, but is being developed by a manufacturer who has another facility where HCFC-22 or HCFC-142b has been in use, the Agency believes that it is consistent with the grandfathering to consider the new facility as part of the existing use if those new or expanded facilities are for the primary purpose of supplying the market, without disruption, with product that meets all codes and standards ( *i.e.* , building, energy efficiency and fire) while they transition their existing facilities to alternatives. However, it would not be consistent with the grandfathering provisions if the primary purpose of a new facility or an expansion of an existing facility were to increase the manufacturer's production of foam products. The SNAP program's goal is to prevent unnecessary use of chemicals that pose a more significant risk to human health and the environment than other chemicals that the Agency has found acceptable. EPA proposed to grandfather existing users of HCFC-22 and HCFC-142b for foam manufacturing in order to allow them time to transition safely to acceptable substitutes. If expansion of existing capacity is needed by manufacturers as an integral part of their transition timeline to non-ODS alternatives, it would be consistent with EPA's rationale for grandfathering existing users of HCFC-22 and HCFC-142b in some end uses. Another clarification in response to the comments with respect to the term “use of HCFC-22 and/or HCFC-142b” is that end-users will be allowed to use “systems” containing these blowing agents to manufacture foam-containing products after the applicable grandfathering date as long as the formulations were made prior to that grandfathering date. This is consistent with the original 1994 SNAP rulemaking which defines use as “any use of a substitute for Class I or Class II ozone-depleting compound, including but not limited to use in a manufacturing process or product, in consumption by the end-user, or in intermediate uses, such as formulation or packaging for other subsequent uses” (59 FR 13148). In this case, for example, boat manufacturers will be able to use their inventory of HCFC-22 formulations after September 1, 2009 but only if those formulations were manufactured prior to that date. Unique Applications Requiring Continued Use of HCFC-22 or HCFC-142b In the 2005 proposal, as in past rulemakings, the Agency requested comment about any specific, unique applications that would require continued use of HCFC-22 or HCFC-142b beyond the effective date of the unacceptability determination. For example, in the recent SNAP final rule published on September 30, 2004, EPA found the use of HCFC-141b unacceptable in all foam applications. However, based on technical information submitted to EPA during the comment period, the Agency exempted “the use of HCFC-141b for space vehicle, nuclear and defense foam applications from the unacceptability determination” (69 FR 58272). For this current rulemaking, EPA did not receive any comment about such unique applications and we are not aware of any specialized foam applications that would require continued use of HCFC-22 or HCFC-142b beyond either March 1, 2008 for pour foam applications other than marine applications; September 1, 2009 for marine applications ( *e.g.* , flotation foam); or January 1, 2010 for XPS applications. Therefore, the Agency is not providing any exception to its decision today. VI. Summary The major objective of the SNAP program is to facilitate the transition from ozone-depleting chemicals by promoting the use of substitutes which present a lower risk to human health and the environment (40 CFR 82.170(a)). In this light, a key policy interest of the SNAP program is promoting the shift from ODSs to alternatives posing lower overall risk that are currently or potentially available (59 FR 13044). Non-ozone depleting alternatives are technically viable and commercially available for nearly all foam applications, including in the pour foam products found in the end uses of commercial refrigeration, sandwich panels, slabstock, and “other” foam. Continued use of HCFCs in those end uses would contribute to unnecessary depletion of the ozone layer, and will delay the transition to alternatives that pose lower overall risk to health and the environment. Accordingly, EPA is

(1)Listing HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and “other” foam; and

(2)listing HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs in all foam end uses. These listings would be effective 60 days after the publication of the final rule in the **Federal Register** . Existing users of HCFC-22 and HCFC-142b, as of November 4, 2005, in pour foam applications including commercial refrigeration, sandwich panels, and slabstock and “other” foam end uses, other than foam for marine applications ( *e.g.* , flotation foam), will be grandfathered until March 1, 2008. Existing users of HCFC-22 and HCFC-142b, as of November 4, 2005, to manufacture foam for marine applications, will be grandfathered until September 1, 2009. These listings for pour foam applications replace those established in the July 22, 2002 rulemaking which established narrowed use limits for continued use of HCFC-22 and HCFC-142b. Existing users of HCFC-22 or HCFC-142b, as of November 4, 2005, in the extruded polystyrene end use and other foam end uses will be grandfathered until January 1, 2010. EPA is allowing existing users of HCFC-22 and HCFC-142b to continue use for a limited time to ensure that they will be able to adjust their manufacturing processes to safely accommodate the use of non-ODS alternatives. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it raises novel legal or policy issues. Accordingly, EPA conducted a preliminary screening analysis of cost impacts (Stratus and RJR Consulting, 2006). Results of this analysis using the highest identified set of cost assumptions indicate the total annual national costs of a 2008 phase-out will be less than one-half of the $100 million threshold that defines a significant regulatory action in terms of economic impact. EPA submitted this action to the Office of Management and Budget

(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. Today's rule contains no new reporting requirements. The Office of Management and Budget

(OMB)has previously approved the information collection requirements contained in the existing regulations in subpart G of 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0226, EPA ICR number 1596.06. This Information Collection Request

(ICR)included five types of respondent reporting and recordkeeping activities pursuant to SNAP regulations: Submission of a SNAP petition, filing a SNAP/Toxic Substances Control Act

(TSCA)Addendum, notification for test marketing activity, record-keeping for substitutes acceptable subject to use restrictions and recordkeeping for small volume uses. A copy of the ICR may be obtained from Susan Auby, by mail at the Office of Environmental Information, Office of Information Collection, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at *auby.susan@epa.gov* , or by calling

(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. 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

(APA)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 today's rule, a small entity is defined as:

(1)A small business that is primarily engaged in the operations described below with fewer than 500 employees (based on Small Business Administration size standards);

(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. The types of businesses subject to today's final rule include businesses that manufacture polyurethane/polyisocyanurate foam systems (NAICS 326150), businesses that use polyurethane/polyisocyanurate systems to apply insulation to buildings, roofs, pipes, etc. (NAICS 326150), and manufacturers of extruded polystyrene (NAICS 326140). After considering the economic impacts of today's final rule on small entities, I certify this action will not have a significant economic impact on a substantial number of small entities. EPA does not believe small businesses will be adversely impacted by this final rule. The majority of the small businesses in the foam industry operate in polyurethane foam end uses as opposed to extruded polystyrene

(XPS)foam applications (this rule covers both). In the context of this rule, small businesses (if they are still using an HCFC at all) are likely using HCFC-22 to manufacture pour foam in applications such as commercial refrigeration, sandwich panels, and slabstock and “other” foam. As explained below, polyurethane pour foam applications operate differently than other SNAP applications in that a small number of companies supply a much larger number of actual pour foam manufacturers. There are approximately 20 formulators in the U.S. that supply pour foam manufacturers foam systems which consist of two drums of ingredients including the blowing agent ( *e.g* , HCFC-22). Some of the formulators are large businesses, but many are small and their customers, the foam manufacturers, number in the thousands. The pour foam manufacturers use the foam system to produce the actual foam product ( *e.g.* , vending machine or metal panel). In this situation, the formulators are responsible for implementing alternatives to the ozone-depleting blowing agent and providing the pour foam manufacturers with systems that produce foam meeting the necessary requirements, technical or otherwise. However, both the formulators and pour foam manufacturers are subject to SNAP regulations because both use the blowing agent. Information in the docket EPA-HQ-OAR-2004-0507 demonstrates that non-ODP alternatives are technically viable and commercially available. In fact, small businesses at both the formulator and pour foam manufacturer levels are already supplying and using non-ODP alternatives in applications such as commercial refrigeration, sandwich panels and slabstock and “other” foam. Therefore, those small businesses will not be adversely affected by the rule to find HCFC-22 and HCFC-142b unacceptable for use because they have already implemented alternatives. Equally, those small businesses that are still using HCFC-22 in pour foam applications will not be significantly impacted by this rulemaking. It is estimated there are thousands of pour foam manufacturers, many of which are small businesses. However, these manufacturers will not be adversely impacted by this final rule because they buy their pour foam systems from the approximately 20 pour foam formulators discussed above. Those 20 formulators are responsible for implementing the alternatives to ozone depleting blowing agents (HCFC-22 and HCFC-142b) and providing a foam system to the pour foam manufacturers that meets all technical and performance requirements. In addition, manufacturers and users of HCFCs have had more than 10 years to prepare for the January 1, 2010 deadline for phasing out production of HCFC-22 and HCFC-142b in the U.S. since the HCFC phaseout schedule was established by a separate EPA regulation in 1993 (58 FR 65018). Today's final rule would allow continued use of these chemicals until March 1, 2008 for pour foam manufacturers other than those making foam for marine applications, and September 1, 2009 for those manufacturing foam for marine applications, (and until January 1, 2010 for XPS applications). Furthermore, the costs of the HCFC phaseout and the transition to non-ozone depleting alternatives were accounted for in a Regulatory Impact Analysis

(RIA)that was performed in 1993 for the phaseout rule mentioned above. A memo in the docket at EPA-HQ-OAR-2004-0507-0012 details the impacts of this final rule, including a discussion of the related 1993 phaseout rule and RIA, on both the pour foam formulators and pour foam manufacturers and concludes there will not be significant impact on a substantial number of small businesses. In fact, most formulators that are still using HCFC-22 and/or HCFC-142b also have implemented alternatives and sell both types of systems to their customers, the manufacturers (EPA-HQ-OAR-2004-0507-0008). Based on this, it is clear that alternatives to ODS have been identified and there are no technical constraints to implementing those alternatives. EPA updated these analyses and developed a screening analysis of small business impacts stemming from the proposed acceleration of the phase-out schedules (Docket # OAR 2004-0507, Documents 0038 and 0039). Based on a current market assessment, it appears that most companies in the affected applications already have converted to alternatives. By our estimates, there are about 40 companies continuing to use HCFC-22 for pour-foam applications, of which 29 have fewer than 500 employees. Using the highest identified set of cost assumptions, the annual costs of a 2008 phase-out exceed the impact screening threshold of one percent of sales in 10 companies. No firms have an impact exceeding the next threshold of three percent of sales. Under more likely mid-range assumptions, the impacts will be smaller. These results indicate there will not be a significant impact on a substantial number of small entities. Although this rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless tried to further reduce the impact of this rule on small entities. Based on acceptability decisions in previous final rules, the Agency believes that some existing users of HCFC-22 and HCFC-142b, including small businesses, invested in good faith in SNAP-approved alternatives that EPA now finds unacceptable. Accordingly, it is appropriate for EPA to balance their interest against our statutory obligation to facilitate the transition away from ozone depleting chemicals as required by the four part test established in *Sierra Club* v. *EPA* . Grandfathering existing users of HCFC-22 and HCFC-142b, some of which are small businesses, allows those users approximately 1-2 years to transition to non-ODS alternatives. (This is the time cited by small businesses when explaining their transition process in comments to the 2005 NPRM and 2006 NODA.) Similarly, this final rule does not negatively impact XPS manufacturers because the rule grandfathers existing use of HCFC-22 and HCFC-142b for XPS applications until January 1, 2010. While the XPS industry has been working to implement alternatives, EPA recognizes there are remaining technical challenges to completing the transition in XPS (Docket # OAR-2004-0507, Documents 0002 and 0039). Accordingly, the Agency agreed with the comments from the XPS manufacturers and grandfathered them until January 1, 2010 to allow the time necessary to develop non-ODS XPS foam products that meet all technical and building specifications. As discussed in the preamble and noted in the docket, there are numerous alternatives that are technically viable and available for all foam applications. In fact, some users have already transitioned away from HCFC-22 and HCFC-142b, particularly in pour foam applications (Docket # EPA-HQ-OAR-2004-0507, Documents 0004—0042). The actions in the final rule may well provide benefits to small businesses which have transitioned to alternatives and made good faith efforts and investments in the transition because they will be able to compete on a level playing field with those that are still using ODS blowing agents. 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 one 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. EPA has determined that this 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 one year. Today's final rule does not affect State, local, or tribal governments. The enforceable requirements of the rule for the private sector affect only a small number of foam manufacturers that could potentially have switched to use HCFC-22 and HCFC-142b in the United States and those currently using HCFC-22 and HCFC-142b. With regard to potential new users, there are technically viable alternatives for those manufacturers. With regard to existing users, there are viable alternatives that will be feasible to use once the manufacturers have made the necessary adjustments to its facility and products. The impact of this rule on the private sector is less than $100 million per year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This regulation applies directly to facilities that use these substances and not to governmental entities. 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 having “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 final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule applies directly to facilities that use these substances and not to governmental entities. 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 solicited comment on this final rule 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 9, 2000)), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. Today's rule applies directly to facilities using these substances and does not significantly or uniquely affect the communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks Executive Order 13045: Protection of Children from Environmental Health & Safety Risks (62 FR 19885 (April 23, 1997)) applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The use of HCFC-22 and HCFC-142b in foam manufacture occurs in the workplace where we expect adults are more likely to be present than children, and thus, the agents do not put children at risk disproportionately. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This 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. This action would impact the manufacture of foam using HCFC-22 and HCFC-142b. Further, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer Advancement Act As noted in the proposed rule, 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 did not consider the use of any voluntary consensus standards. J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A Major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective May 29, 2007. VIII. Additional Information For more information on EPA's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the SNAP final rulemaking published in the **Federal Register** on March 18, 1994 (59 FR 13044). Notices and rulemakings under the SNAP program, as well as EPA publications on protection of stratospheric ozone, are available from EPA's Ozone Depletion Web site at *http://www.epa.gov/ozone/* and from the Stratospheric Protection Hotline number at

(800)296-1996. IX. References The documents below are referenced in the preamble. All documents are located in the Docket at the address listed in Section I at the beginning of this document. Unless specified otherwise, all documents are available in Docket ID No. EPA-HQ-OAR-2004-0507 at *http://www.regulations.gov.* Beauchamp, B., 2005 Comments from Stepan Company. (EPA-HQ-OAR-2004-0507 item -0011, -0017, -0021, and -0025) Begbie, R., 2005. Comment from Exxon Mobil Chemical Company. (EPA-HQ-OAR-2004-0507 item -0007) Berglund, T., 2005. Comment from Dynaplast Products. (EPA-HQ-OAR-2004-0507 item -0006) Bernhardt, S., 2005. Comments from Honeywell Chemicals. (EPA-HQ-OAR-2004-0507 item -0009, -0016, -0016.1, and -0042) Boyer, K., 2005. Comment from Centria. (EPA-HQ-OAR-2004-0507 item -0005) Coyle, M., 2005. Comment from Bally Refrigerated Boxes, Inc. (EPA-HQ-OAR-2004-0507 item -0004) **Federal Register** (FR), vol. 65, p.42653. **Federal Register** (FR), vol. 67, p.47703. **Federal Register** (FR), vol. 70, p.67120. **Federal Register** (FR), vol. 71, p.30353. Henderson, J., 2005. Comment from Jeanne Henderson. (EPA-HQ-OAR-2004-0507 item -0032) Herrenbruck, S., 2005. Comments from Extruded Polystyrene Foam Association. (EPA-HQ-OAR-2004-0507 item -0023 and -0023.1) Kalinowski, T., 2005. Comments from Foam Supplies, Inc. (EPA-HQ-OAR-2004-0507 item -0008 and -0029) Kasakevich, J. 2006. Comments from The Dow Chemical Company. (EPA-HQ-OAR-2004-0507 item -0044 and -0044.1) Kraus, T., 2005, Comments from The Manitowoc Company Inc. (EPA-HQ-OAR-2004-0507 item -0010 , -0015, and -0041) LaPlante, A. and M. Powers., 2005. Comments from Pacific Environmental Advocacy Center. (EPA-HQ-OAR-2004-0507 item -0024, -0024.1, and -0036) Lewandowski, P., 2005. Comments from Owens Corning. (EPA-HQ-OAR-2004-0507 item -0018 and -0018.1) Mathis, P., 2005. Comments from National Cooler Division of Hill Phoenix. (EPA-HQ-OAR-2004-0507 item -0020, -0026, -0028, -0031, and -0045) Memo from Small Business Regulatory Enforcement Act. 2005. Potential Impacts on Small Businesses of a SNAP Proposed Rulemaking on the Use of HCFC-22 and HCFC-142b in Foam Applications. (EPA-HQ-OAR-2004-0507 item -0012) RJR Consulting, Inc., 2005. XPS (Extruded Polystyrene Foam) Technical Support-Status of C Conversion from HCFC Blowing Agents. (EPA-HQ-OAR-2004-0507 item 0002) RJR Consulting, Inc. and Stratus Consulting, Inc., 2006a. Technical Viability of SNAP Approved Non-Ozone Depleting Blowing Agents Available for Pour Foam Blowing Applications. (EPA-HQ-OAR-2004-0507 item 0038) RJR Consulting, Inc. and Stratus Consulting, Inc., 2006b. Review of SNAP Approved Non-Ozone Depleting Blowing Agents Available to the Extruded Polystyrene Foam Industry. (EPA-HQ-OAR-2004-0507 item 0039) Stratus Consulting, Inc., and RJR Consulting, Inc., 2006. E.O. 12866, RFA, and SBREFA Screening Analyses. US EPA, 2005. E-mail to the Dow Chemical Company. (EPA-HQ-OAR-2004-0507 item -0034) US EPA, 2005. Memo to File Regarding Conversation with Foam Supplies, Inc. (EPA-HQ-OAR-2004-0507 item -0013) US EPA, 2005. Memo to File Regarding Meeting with The Dow Chemical Company. (EPA-HQ-OAR-2004-0507 item -0033) US EPA, 2006. Memo to File Regarding Meeting with Pacific Environmental Advocacy Center. (EPA-HQ-OAR-2004-0507 item -0035) US EPA, 2006. Memo to File Regarding Meeting with Congressman Petri and Manitowoc Company, Inc. (EPA-HQ-OAR-2004-0507 item -0037) US EPA, 2005. Memo to File Regarding A Blowing Agent Transition. (EPA-HQ-OAR-2004-0507 item -0014) USEPA, 2005. Protection of Stratospheric Ozone: Listing of Ozone Depleting Substitutes in Foam Blowing. (EPA-HQ-OAR-2004-0507 item 0001) US EPA, 2006. Protection of Stratospheric Ozone: Notice of Data Availability; New Information Concerning SNAP Program Proposal on Ozone Depleting Substitutes in Foam Blowing (EPA-HQ-OAR-2004-0507 item 0040) Watson, S., 2005. Comments from Carpenter Co. (EPA-HQ-OAR-2004-0507 item -0022, -0022.1, and -0027) Weick, M., 2005. Comments from The Dow Chemical Company. (EPA-HQ-OAR-2004-0507 item -0019, -0019.1, -0043, and-0043.1) List of Subjects in 40 CFR Part 82 Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements. Dated: March 19, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, 40 CFR part 82 is amended as follows: PART 82—PROTECTION OF STRATOSPHERIC OZONE 1. The authority citation for part 82 continues to read as follows: Authority: 42 U.S.C. 7414, 7601, 7671—7671q. Subpart G—Significant New Alternatives Policy Program 2. Subpart G is amended by adding Appendix Q to read as follows: Appendix Q to Subpart G of Part 82—Unacceptable Substitutes Listed in the March 28, 2007 Final Rule, Effective May 29, 2007. Foam Blowing Unacceptable Substitutes End use Substitute Decision Further information —Rigid polyurethane commercial refrigeration —Rigid polyurethane sandwich panels. HCFC-22; HCFC-142b as substitutes for HCFC-141b Unacceptable 1 Alternatives exist with lower or zero-ODP. —Rigid polyurethane slabstock and other foams. —Rigid polyurethane and polyisocyanurate laminated boardstock —Rigid polyurethane appliance. HCFC-22; HCFC-142b as substitutes for CFCs Unacceptable 2 Alternatives exist with lower or zero-ODP. —Rigid polyurethane spray and commercial refrigeration, and sandwich panels. —Rigid polyurethane slabstock and other foams. —Polystyrene extruded insulation boardstock and billet. —Phenolic insulation board and bunstock. —Flexible polyurethane. —Polystyrene extruded sheet. 1 For existing users of HCFC-22 and HCFC-142b as of November 4, 2005 other than in marine applications, the unacceptability determination is effective on March 1, 2008; for existing users of HCFC-22 and HCFC-142b as of November 4, 2005 in marine applications, including marine flotation foam, the unacceptability determination is effective on September 1, 2009. For an existing user of HCFC-22 or HCFC-142b that currently operates in only one facility that it does not own, and is scheduled to transition to a non-ODS, flammable alternative to coincide with a move to a new facility and installation of new process equipment that cannot be completed by March 1, 2008, the unacceptability determination is effective January 1, 2010. 2 For existing users of HCFC-22 and HCFC-142b in polystyrene extruded insulation boardstock and billet and the other foam end uses, as of November 4, 2005, the unacceptability determination is effective on January 1, 2010. 3. In Appendix K to Subpart G, the second table (Foam Blowing—Acceptable Substitutes) is removed. [FR Doc. E7-5491 Filed 3-27-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-481; FRL-8120-1] Fluopicolide; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for residues of fluopicolide in or on imported grape at 2.0 parts per million (ppm), and grape, raisin at 6.0 ppm with no U.S. registration. Bayer CropScience AG requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). The tolerance petition and data was transferred to Valent U.S.A. Corporation on January 9, 2006. DATES: This regulation is effective March 28, 2007. Objections and requests for hearings must be received on or before May 29, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0481. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(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 in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Janet Whitehurst, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-6129; e-mail address: *janet.whitehurst@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of This Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0481 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 29, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0481, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is

(703)305-5805. II. Petition for Tolerance In the **Federal Register** of January 24, 2007 (72 FR 3132) (FRL-8110-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E6903) by Valent U.S.A. Corporation, Walnut Creek, CA 94596-8025. The petition requested that 40 CFR part 180 be amended by establishing a tolerance for residues of the fungicide fluopicolide, 2,6-dichloro- *N* -[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl] benzamide, in or on imported grape, juice, and grape, wine at 2.0 ppm and the processed commodity grape, raisin at 9.0 ppm. That notice referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . Comments were received on the notice of filing. EPA's response to these comments are discussed in Unit IV.C. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for residues of fluopicolide in or on grape at 2.0 ppm and grape, raisin at 6.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by fluopicolide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* . The referenced document is available in docket ID EPA-HQ-OPP-2006-0481. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor

(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at *http://www.epa.gov/pesticides/factsheets/riskassess.htm* and *http://www.epa.gov/oppfead1/trac/science* . A summary of the toxicological endpoints for fluopicolide used for human risk assessment can be found at *http://www.regulations.gov* . The referenced document is available in docket ID EPA-HQ-OPP-2006-0481. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . Tolerances have not been established (40 CFR 180.627) for the residues of fluopicolide, in or imported grapes. There are no registrations for use of fluopicolide in the United States. There are no major livestock feed items associated with the use on imported grapes. Therefore, residues in livestock commodities are not relevant to the establishment of import tolerances for grapes. Risk assessments were conducted by EPA to assess dietary exposures from fluopicolide in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. No acute reference dose was established nor was a dietary endpoint identified in either the general population or for females aged 13-49 years. There were no appropriate studies that demonstrated evidence of toxicity attributable to a single dose of fluopicolide for these populations. As a result, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The dietary assessment included grape commodities, as the only source of residues for fluopicolide. It was assumed that 100% of all grape commodities contained tolerance level residues. iii. *Cancer* . Fluopicolide is not likely to be carcinogenic to humans; therefore, a cancer exposure assessment was not conducted. iv. *Anticipated residue and percent crop treated

(PCT)information* . Anticipated residues/PCT data were not needed to refine the risk assessment so they were not used. 2. *Dietary exposure from drinking water* . Since there are no existing U.S. registrations for fluopicolide, no residues from fluopicolide are expected to occur in drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). No occupational exporue to fluopicolide is expected to occur in the U.S. as a result of fluopicolide on imported grapes. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fluopicolide and any other substances and fluopicolide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fluopicolide has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . Acceptable/guideline studies for developmental toxicity in rats and rabbits as well as a 2-generation reproduction study in rats were available for consideration during endpoint selection. There is no evidence of susceptibility following *in utero* and/or postnatal exposure in the rabbit developmental toxicity study or in the 2-generation rat reproduction study. Although qualitative susceptibility was observed in the rat developmental toxicity study, there is low concern for these effects because the offspring effects (reduced growth and skeletal defects) are well characterized and accompanied by maternal toxicity. There are no residual uncertainties concerning pre- and post-natal toxicity. 3. *Conclusion* . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: There is a complete toxicity database for fluopicolide. There are no residual uncertainties concerning pre- and post-natal toxicity and no neurotoxicity concerns. The dietary food exposure assessment utilizes tolerance level residues and 100% CT. There is no potential for drinking water exposure. There is no potential for residential exposure. E. Aggregate Risks and Determination of Safety In accordance with the FQPA, EPA must consider and aggregate pesticide exposures and risks from three major sources: Food, drinking water, and residential exposures. In an aggregate assessment, exposures from relevant sources are added together and compared to quantitative estimates of hazard (e.g., a NOAEL or PAD), or the risks themselves can be aggregated. When aggregating exposures and risks from various sources, EPA considers both the route and duration of exposure.The registrant is seeking import tolerances on grapes and its processed commodities and the risk assessment includes only dietary exposure to fluopicolide. There is no expectation that exposure to fluopicolide would occur via water consumption or residential use. Therefore, an aggregate exposure risk assessment is equivalent to the dietary risk assessment. 1. *Acute risk* . Because there was no evidence of toxicity for fluopicolide attributable to a single dose, fluopicolide is not expected to pose an acute risk. 2. *Chronic risk* . As there are no U.S. registrations or proposed registrations, the chronic aggregate risk is equivalent to the chronic dietary risk for fluopicolide residues in food. The chronic dietary exposure estimates are <1% cPAD for the general U.S. population and 3% cPAD for children 1-2 years old, the most highly exposed subgroup. The dietary risk estimates are all below EPA's level of concern. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). As there are no U.S. registrations or proposed registrations for fluopicolide, there will be no exposures from residential uses or residues in drinking water. Therefore, the aggregate risk is the risk from food (grape commodities) only. The dietary risk estimates are all below EPA's level of concern. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). As there are no U.S. registrations or proposed registrations for fluopicolide, there will be no exposures from residential uses or residues in drinking water. Therefore, the aggregate risk is the risk from food (grape commodities) only. The dietary risk estimates are all below EPA's level of concern. 5. *Aggregate cancer risk for U.S. population* . Fluopicolide is not likely to be carcinogenic to humans; therefore, fluopicolide is not expected to pose a cancer risk. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to fluopicolide residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits No Codex, Canadian, or Mexican maximum residue limits

(MRLs)or tolerances have been established for fluopicolide. C. Response to Coments One comment dated June 14, 2006, was received from B. Sachau. Ms. Sachau's comments regarding general exposure to pesticides contained no scientific data or evidence to rebut the Agency's conclusion that there is a reasonable certainty that no harm will result from aggregate exposure to fluopicolide, including all anticipated dietary exposures and other exposures for which there is reliable information. This comment as well as her comments regarding animal testing have been responded to by the Agency on several occasions. For examples, see the **Federal Register** issues of January 7, 2005 (70 FR 1349) (FRL-7691-4) and October 29, 2004 (69 FR 63083) (FRL-7681-9). V. Conclusion Therefore, the tolerance is established for residues of fluopicolide, 2,6-dichloro- *N* -[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl]benzamide, in or on grape at a tolerance level of 2.0 parts per million (ppm), and grape, raisin at a tolerance level of 6.0 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this 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). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 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 final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, 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.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule 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. Thus, Executive Order 13175 does not apply to this rule. VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: March 21, 2007. Steven Bradbury, Acting Director, Office of Pesticides Program. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.627 is added to subpart C to read as follows: § 180.627 Fluopicolide; tolerances for residues.

(a)*General* . Tolerances are established for residues of fluopicolide, 2,6-dichloro- *N* -[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl] benzamide, in or on the following commodities. Commodity Parts per million Grape 2.0 Grape, raisin 6.0

(b)*Section 18 emergency exemptions* . [Reserved]

(c)*Tolerances with regional registrations* . [Reserved]

(d)*Indirect or inadvertent residues* . [Reserved] [FR Doc. E7-5628 Filed 3-27-07; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 65 Changes in Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Modified Base (1% annual-chance) Flood Elevations

(BFEs)are finalized for the communities listed below. These modified BFEs will be used to calculate flood insurance premium rates for new buildings and their contents. DATES: The effective dates for these modified BFEs are indicated on the following table and revise the Flood Insurance Rate Maps (FIRMs) in effect for the listed communities prior to this date. ADDRESSES: The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety

(BFEs)is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents. DATES: These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities. From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety

(90)days in which to request through the community that the Mitigation Division Director of FEMA reconsider the changes. The modified BFEs may be changed during the 90-day period. ADDRESSES: The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472,

(202)646-3151. SUPPLEMENTARY INFORMATION: The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided. Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data. The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 *et seq.* , and with 44 CFR part 65. For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals. The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP). These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes BFEs are in accordance with 44 CFR 65.4. *National Environmental Policy Act.* This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This interim rule involves no policies that have federalism implications under Executive Order 13132, Federalism. *Executive Order 12988, Civil Justice Reform.* This interim rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 65 Flood insurance, Floodplains, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 65 is amended to read as follows: PART 65—[AMENDED] 1. The authority citation for part 65 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 65.4 [Amended] 2. The tables published under the authority of § 65.4 are amended as follows: State and county Location and case No. Date and name of newspaper where notice was published Chief executive officer of community Effective date of modification Community No. Arizona: Pima Town of Marana (06-09-BD84P) November 9, 2006; November 16, 2006; *Daily Territorial* The Honorable Ed Honea, Mayor, Town of Marana, Marana Municipal Complex, 11555 West Civic Center Drive, Marana, AZ 85653 October 26, 2006 040118 Arkansas: Benton City of Rogers (05-06-A137P) January 3, 2007; January 10, 2007; *Rogers Hometown News* The Honorable Steve Womack, Mayor, City of Rogers, 300 West Poplar Street, Rogers, AR 72756 April 4, 2007 050013 Arkansas: Benton City of Rogers (06-06-BA42P) December 20, 2006; December 27, 2006; *Rogers Hometown News* The Honorable Steve Womack, Mayor, City of Rogers, 301 West Chestnut, Rogers, AR 72756 March 28, 2007 050013 Arkansas: Benton City of Rogers (07-06-0169P) January 24, 2007; January 31, 2007; *Arkansas Democrat Gazette* The Honorable Steve Womack, Mayor, City of Rogers, 301 West Chestnut Street, Rogers, AR 72756 April 25, 2007 050013 Arkansas: Crawford City of Van Buren (06-06-B796P) November 29, 2006; December 6, 2006; *Press Argus-Courier* The Honorable John Riggs, Mayor, City of Van Buren, 1003 Broadway, Van Buren, AR 72956 March 7, 2007 050053 Arkansas: Crawford Unincorporated areas of Crawford County (06-06-B796P) November 29, 2006; December 6, 2006; *Press Argus-Courier* The Honorable Jerry H. Williams, Crawford County Judge, Crawford County Courthouse, 300 Main Street, Van Buren, AR 72956 March 7, 2007 050428 Arkansas: Pulaski City of Sherwood (06-06-B539P) November 16, 2006; November 23, 2006; *The Sherwood Voice* The Honorable Bill Harmon, Mayor, City of Sherwood, 2199 East Kiehl Avenue, Sherwood, AR 72120 February 22, 2007 050235 Arkansas: Saline City of Benton (06-06-BC89P) November 30, 2006; December 7, 2006; *The Benton Courier* The Honorable Rick Holland, Mayor, City of Benton, Benton Municipal Complex, 114 South East Street, Benton, AR 72015 November 27, 2006 050192 Arkansas: Saline Unincorporated areas of Saline County (06-06-BC89P) November 30, 2006; December 7, 2006; *The Benton Courier* The Honorable Lanny Fite, County Judge, Saline County, 200 North Main Street, Room 117, Benton, AR 72015 November 27, 2006 050191 California: Contra Costa Unincorporated areas of Contra Costa County (06-09-B006P) January 18, 2007; January 25, 2007; *Contra Costa Times* The Honorable Brian Swisher, Mayor, City of Brentwood, 708 Third Street, Brentwood, CA 94513 April 26, 2007 060439 California: Riverside City of Murrieta (06-09-BD71P) January 18, 2007; January 25, 2007; *The Californian* The Honorable Kelly Seyarto, Mayor, City of Murrieta, 26442 Beckman Court, Murrieta, CA 92562 April 26, 2007 060751 California: San Bernardino City of Barstow (06-09-B313P) December 18, 2006; January 4, 2007; *San Bernardino County Sun* The Honorable Lawrence E. Dale, Mayor, City of Barstow, 220 East Mountain View Street, Suite A, Barstow, CA 92311 November 30, 2006 060271 California: San Bernardino Unincorporated areas of San Bernardino County (06-09-B313P) December 18, 2006; January 4, 2007; *San Bernardino County Sun* The Honorable Bill Postmus, Chairman, San Bernardino County Board of Supervisors, 385 North Arrowhead Avenue, 3rd Floor, San Bernardino, CA 92415 November 30, 2006 060270 California: San Diego Unincorporated areas of San Diego County (06-09-BF75P) December 21, 2006; December 28, 2006; *San Diego Transcript* The Honorable Bill Horn, Chairman, San Diego County Board of Supervisors, 1600 Pacific Highway, Room 335, San Diego, CA 92101 November 29, 2006 060284 California: Santa Barbara Unincorporated areas of Santa Barbara County (07-09-0251X) January 18, 2007; January 25, 2007; *Santa Barbara News Press* The Honorable Joni L. Gray, Chairperson, Santa Barbara County, 511 East Lakeside Parkway, Suite 126, Santa Maria, CA 93455 February 2, 2007 060331 California: Shasta Unincorporated areas of Shasta County (06-09-BB09P) November 9, 2006; November 16, 2006; *Redding Record Searchlight* The Honorable Patricia A “Trish” Clarke, Chairman, Shasta County Board of Supervisors, 1450 Court Street, Suite 308 B, Redding, CA 96001 October 31, 2006 060358 Colorado: Adams City of Thornton (06-08-B537P) February 1, 2007; February 8, 2007; *Golden Transcript* The Honorable Noel Busck, Mayor, City of Thornton, 9500 Civic Center Drive, Thornton, CO 80229 May 10, 2007 080007 Colorado: Adams Unincorporated areas of Adams County (06-08-B537P) February 1, 2007; February 8, 2007; *Golden Transcript* The Honorable Alice J. Nichol, Chairman, Adams County Board of Commissioners, 450 South Fourth Avenue, Brighton, CO 80601 May 10, 2007 080001 Colorado: Adams and Jefferson City of Westminster (06-08-B537P) February 1, 2007; February 8, 2007; *Golden Transcript* The Honorable Nancy McNally, Mayor, City of Westminster, 4800 West 92nd Avenue, Westminster, CO 80031 May 10, 2007 080008 Colorado: Arapahoe City of Centennial (06-08-B400P) December 28, 2006; January 4, 2007; *Littleton Independent* The Honorable Randy Pye, Mayor, City of Centennial, City of Centennial Office, 12503 East Euclid Drive, Suite 200, Centennial, CO 80111 April 5, 2007 080315 Colorado: Boulder City of Boulder (06-08-B289P) December 20, 2006; December 27, 2006; *The Boulder City Camera* The Honorable Mark Ruzzin, Mayor, City of Boulder, P.O. Box 791, Boulder, CO 80306 March 28, 2007 080024 Colorado: Boulder Unincorporated areas of Boulder County (06-08-B289P) December 20, 2006; December 27, 2006; *The Boulder Daily Camera* The Honorable Ben Pearlman, Chairman, Boulder County Board of Commissioners, Boulder County Courthouse, P.O. Box 471, Boulder, CO 80306 March 28, 2007 080023 Colorado: Broomfield City of Broomfield and Unincorporated areas of Broomfield County (06-08-B537P) February 1, 2007; February 8, 2007; *Golden Transcript* The Honorable Karen Stuart, Mayor, City and County of Broomfield, One DesCombes Drive, Broomfield, CO 80020 May 10, 2007 085073 Colorado: El Paso City of Colorado Springs (05-08-0608P) November 22, 2006; November 29, 2006; *El Paso County News* The Honorable Lionel Rivera, Mayor, City of Colorado Springs, P.O. Box 1575, Colorado Springs, CO 80901 October 25, 2006 080060 Colorado: El Paso Unincorporated areas of El Paso County (05-08-A578P) November 22, 2006; November 29, 2006; *El Paso County News* The Honorable Jim Bensberg, Chairman, El Paso County Board of Commissioners, 27 East Vermijo Avenue, Colorado Springs, CO 80903-2208 October 30, 2006 080059 Colorado: El Paso Unincorporated areas of El Paso County (06-08-B137P) November 29, 2006; December 6, 2006; *El Paso County News* The Honorable Sallie Clark, Chair, El Paso County Board of Commissioners, 27 East Vermijo Avenue, Colorado Springs, CO 80903 December 13, 2006 080059 Colorado: Summit Town of Breckenridge (06-08-B667P) January 12, 2007; January 19, 2007; *Summit County Journal* The Honorable Ernie Blake, Mayor, Town of Breckenridge, P.O. Box 168, Breckenridge, CO 80424 December 7, 2006 080172 Connecticut: Hartford City of Hartford (07-01-0111P) December 21, 2006; December 28, 2006; * Hartford Courant* The Honorable Eddie A. Perez, Mayor, City of Hartford, 550 Main Street, Hartford, CT 06103 December 6, 2006 095080 Delaware: New Castle Unincorporated areas of New Castle County (06-03-B233P) December 21, 2006; December 28, 2006; *The News Journal* The Honorable Chris Coons, New Castle County Executive, 87 Read's Way, New Castle, DE 19720 March 29, 2007 105085 Delaware: New Castle Unincorporated areas of New Castle County (06-03-B714P) December 1, 2006; December 8, 2006; *Newark Post* The Honorable Paul G. Clark, President, New Castle County Council, City/County Building, 800 North French Street, Eighth Floor, Wilmington, DE 19801 March 9, 2007 105085 Florida: Clay Unincorporated areas of Clay County (06-04-BQ02P) November 9, 2006; November 16, 2006; *Clay Today* The Honorable William Wilkes, Circuit Court Judge, Clay County Courthouse, 825 North Orange Avenue, Green Cove Springs, FL 32043 October 16, 2006 120064 Florida: Duval City of Jacksonville (05-04-A005P) December 11, 2006; December 18, 2006; *Jacksonville Daily Record* The Honorable Mr. John Peyton, Mayor, City of Jacksonville, City Hall at St. James, Fourth Floor, 117 West Duval Street, Jacksonville, FL 32202 March 19, 2007 120077 Florida: Flagler Unincorporated areas of Flagler County (06-04-BW09P) December 21, 2006; December 28, 2006; *The News-Journal* The Honorable James Darby, Chairman, Board of Commissioners, Flagler County, P.O. Box 1132, Flagler Beach, FL 32136 November 30, 2006 120085 Florida: Leon Unincorporated areas of Leon County (06-04-B039P) December 21, 2006; December 28, 2006; *Tallahassee Democrat* The Honorable Parwez Alam, Administrator, Leon County, 301 South Monroe Street, Fifth floor, Tallahassee, FL 32301 March 29, 2007 120143 Florida: Marion Unincorporated areas of Marion County (06-04-BH17P) November 30, 2006; December 7, 2006; Star-Banner The Honorable Jim Payton, Chairman, Marion County Board of Commissioners, 601 Southeast 25th Avenue, Ocala, FL 34471 October 30, 2006 120160 Florida: Miami-Dade City of Miami (06-04-C312P) November 30, 2006; December 7, 2006; Miami New Times The Honorable Manuel A. Diaz, Mayor, City of Miami, 3500 Pan American Drive, Miami, FL 33133 October 30, 2006 120650 Florida: Pinellas City of St. Petersburg (06-04-BS96P) December 21, 2006; December 28, 2006; St. Petersburg Times The Honorable Rick Baker, 175 Fifth Street North, St. Petersburg, FL 33701 March 29, 2007 125148 Florida: Polk Unincorporated areas of Polk County (06-04-BO60P) November 16, 2006; November 23, 2006; The Polk County Democrat Mr. Michael Herr, County Manager, Polk County, P.O. Box 9005, Drawer BC01, Bartow, FL 33831 February 22, 2007 120261 Florida: St. Johns Unincorporated areas of St. Johns County (06-04-BT86P) November 9, 2006; November 16, 2006; *The St. Augustine Record* The Honorable James E. Bryant, Chairman, Board of County Commissioners, St. Johns County, 4020 Lewis Speedway, St. Augustine, FL 32084 February 15, 2007 125147 Georgia: Columbia Unincorporated areas of Columbia County (06-04-C011P) December 6, 2006; December 13, 2006; *Columbia County News-Times* The Honorable Ron C. Cross, Chairman, Columbia County Commissioners, 908 Nerium Trail, Evans, GA 30809 February 28, 2007 130059 Georgia: Gwinnett Unincorporated areas of Gwinnett County (05-04-2732P) December 21, 2006; December 28, 2006; *Gwinnett Daily Post* The Honorable Charles E. Bannister, Chairman, Gwinnett County Board of Commissioners, 75 Langley Drive, Lawrenceville, GA 30045 March 29, 2007 130322 Georgia: Gwinnett Unincorporated areas of Gwinnett County (06-04-C663P) December 21, 2006; December 28, 2006; *Gwinnett Daily Post* The Honorable Charles Bannister, Chairman, Board of Commissioners, Gwinnett County, 75 Langley Drive, Lawrenceville, GA 30045 November 30, 2006 130322 Georgia: Gwinnett Unincorporated areas of Gwinnett County (06-04-BY93P) February 1, 2007; February 8, 2007; *Gwinnett Daily Post* The Honorable Charles E. Bannister, Chairman, Gwinnett County Board of Commissioners, 75 Langley Drive, Lawrenceville, GA 30045 May 10, 2007 130322 Hawaii: Hawaii Unincorporated areas of Hawaii County (06-09-B047P) November 2, 2006; November 9, 2006; *Hawaii Tribune Herald* The Honorable Harry Kim, Mayor, Hawaii County, 25 Aupuni Street, Room 215, Hilo, HI 96720 October 16, 2006 155166 Idaho: Boise Unincorporated areas of Boise County (06-10-B184P) January 4, 2007; January 11, 2007; *The Idaho Statesman* The Honorable Roger B. Jackson, Chairman, Boise County Board of Commissioners, 420 Main Street, Idaho City, ID 83631 April 12, 2007 160205 Illinois: DuPage City of Warrenville (06-05-B753P) December 21, 2006; December 28, 2006; *Daily Herald* The Honorable David L. Brummel, Mayor, City of Warrenville, City Hall, 28W701 Stafford Place, Warrenville, IL 60555 November 22, 2006 170218 Illinois: Ogle City of Rochelle (06-05-B086P) November 9, 2006; November 16, 2006; *The Rochelle News-Leader* The Honorable Chet Olson, Mayor, City of Rochelle, 420 North Sixth Street, Rochelle, IL 61068 February 15, 2007 170352 Illinois: St. Clair City of Belleville (06-05-B005P) November 30, 2006; December 7, 2006; *News-Democrat* The Honorable Mark Eckert, Mayor, City of Belleville, 101 South Illinois Street, Belleville, IL 62220 March 8, 2007 170618 Illinois: St. Clair Unincorporated areas of St. Clair County (06-05-B005P) November 30, 2006; December 7, 2006; *News-Democrat* Mr. Mark Kern, Chairman, St. Clair County Board, St. Clair County Building, 10 Public Square, Belleville, IL 62220 March 8, 2007 170616 Illinois: Will Village of Frankfort (06-05-BT88P) November 30, 2006; December 7, 2006; *Daily Southtown* The Honorable Jim Holland, Mayor, Village of Frankfort, 432 West Nebraska Street, Frankfort, IL 60423 October 31, 2006 170701 Indiana: Hancock City of Greenfield (06-05-B085P) December 21, 2006; December 28, 2006; *Greenfield Daily Reporter* The Honorable Rodney Fleming, Mayor, City of Greenfield, Keith J. McClanon Government Center, 10 South State Street, Greenfield, IN 46140 January 2, 2007 180084 Indiana: Hancock Unincorporated areas of Hancock County (06-05-B085P) December 21, 2006; December 28, 2006; *Greenfield Daily Reporter* Mr. Brian Kleiman, President, Board of Commissioners, Hancock County, 111 South American Legion Place, Greenfield, IN 46140 March 29, 2007 180419 Kansas: Johnson City of Olathe (06-07-B170P) December 21, 2006; December 28, 2006; *The Johnson County Sun* The Honorable Michael Copeland, Mayor, City of Olathe, P.O. Box 768, Olathe, KS 66051-0768 November 22, 2006 200173 Kansas: Johnson City of Overland Park (06-07-B170P) December 21, 2006; December 28, 2006; *The Johnson County Sun* The Honorable Carl Gerlach, Mayor, City of Overland Park, 8500 Santa Fe Drive, Olathe, KS 66061 November 22, 2006 200174 Kansas: Sedgwick City of Wichita (06-07-BB40P) December 21, 2006; December 28, 2006; *The Wichita Eagle* The Honorable Carlos Mayans, Mayor, City of Wichita, City Hall, First Floor, 455 North Main Street, Wichita, KS 67202 February 5, 2007 200238 Kansas: Shawnee City of Topeka (06-07-B029P) November 16, 2006; November 23, 2006; *Topeka Capital Journal* The Honorable William W. Bunten, Mayor, City of Topeka, City Hall, 215 Southeast 7th Street, Topeka, KS 66603-3914 November 30, 2006 205187 Maine: Cumberland Town of Windham (06-01-B562P) November 9, 2006; November 16, 2006; *Portland Press Herald* The Honorable John MacKinnon, Chairman, Windham Town Council, 8 School Road, Windham, ME 04062 October 30, 2006 230189 Maine: Oxford Town of Bethel (06-01-B021P) November 30, 2006; December 7, 2006; *The Bethel Citizen* The Honorable Stanley R. Howe, Chairman, Town of Bethel, P.O. Box 1660, Bethel, ME 04217 October 30, 2006 230088 Maryland: Allegany Unincorporated areas of Allegany County (06-03-B234P) November 30, 2006; December 7, 2006; *The Cumberland Times-News* The Honorable James J. Stakem, President, Allegany County Board of Commissioners, Allegany County Office Complex, 701 Kelly Road, Fourth Floor, Cumberland, MD 21502-2803 March 8, 2007 240001 Maryland: Carroll Unincorporated areas of Carroll County (05-03-A533P) October 19, 2006; October 26, 2006; *Carroll County Times* The Honorable Julia W. Gouge, President, Carroll County Board of Commissioners, Carroll County Office Building, 225 North Center Street, Westminster, MD 21157 January 25, 2007 240015 Maryland: Howard Unincorporated areas of Howard County (05-03-A496P) December 14, 2006; December 21, 2006; *Howard County Times* The Honorable James N. Robey, Howard County Executive, 3430 Courthouse Drive, Ellicott City, MD 21043 November 16, 2006 240044 Massachusetts: Barnstable Town of Bourne (06-01-B530P) December 21, 2006; December 28, 2006; *Cape Cod Times* The Honorable Linda Zuern, Chair, Board of Selectmen, Town of Bourne, 24 Perry Avenue, Buzzards Bay, MA 02532 November 30, 2006 255210 Massachusetts: Essex Town of Wenham (06-01-B791P) November 9, 2006; November 16, 2006; *The Salem News* The Honorable Peter Hersee, Chairman, Wenham Board of Selectmen, 123 Main Street, Wenham, MA 01984 February 15, 2007 250107 Michigan: Macomb and Marquette Township of Macomb (06-05-BT19P) December 22, 2006; December 29, 2006; *Macomb County Legal News* The Honorable John D. Brennan, Supervisor, Township of Macomb, 54111 Broughton Rd, Macomb, MI 48042 March 30, 2007 260445 Minnesota: Olmsted City of Rochester (06-05-BR73P) November 30, 2006; December 7, 2006; *Post-Bulletin* The Honorable Ardell Brede, Mayor, City of Rochester, 201 Fourth Street Southeast, Room 281, Rochester, MN 55904 October 30, 2006 275246 Mississippi: Rankin City of Flowood (06-04-C397P) December 20, 2006; December 27, 2006; *Rankin County News* The Honorable Gary Rhoads, Mayor, City of Flowood, P.O. Box 320069, Flowood, MS 39232-0069 March 29, 2007 280289 Mississippi: Rankin Unincorporated areas of Rankin County (06-04-C397P) December 20, 2006; December 27, 2006; *Rankin County News* The Honorable Norman McLeod, Rankin County Administrator, 221 East Government Street, Suite A, Brandon, MS 39042 March 29, 2007 280142 Missouri: Pemiscot City of Caruthersville (06-07-B730P) December 21, 2006; December 28, 2006; *Caruthersville-Hayti Democrat-Argus* The Honorable Diane Sayre, Mayor, City of Caruthersville, 200 West Third Street, Caruthersville, MO 63830 March 29, 2007 290275 Missouri: Pemiscot Unincorporated areas of Pemiscot County (06-07-B730P) December 21, 2006; December 28, 2006; *Caruthersville Hayti Democrat-Argus* The Honorable Charles Moss, Presiding Commissioner, Pemiscot County Commission, 610 Ward Avenue, Caruthersville, MO 63830 March 29, 2007 290779 Missouri: St. Charles City of O'Fallon (06-07-B699P) September 20, 2006; September 27, 2006; *St. Charles Journal* The Honorable Donna Morrow, Mayor, City of O'Fallon, City Hall, 100 North Main Street, O'Fallon, MO 63366 December 27, 2006 290316 Missouri: St. Charles Unincorporated areas of St. Charles County (06-07-B699P) September 20, 2006; September 27, 2006; *St. Charles Journal* The Honorable Joe Ortwerth, County Executive, St. Charles County Administration Building, 201 North Second Street, St. Charles, MO 63301 December 27, 2006 290315 Nevada: Clark Unincorporated areas of Clark County (06-09-B036P) November 9, 2006; November 16, 2006; *Las Vegas Review-Journal* The Honorable Rory Reid, Chair, Clark County Board of Commissioners, 500 South Grand Central Parkway, Las Vegas, NV 89106 October 31, 2006 320003 Nevada: Clark Unincorporated areas of Clark County (06-09-B275P) November 9, 2006; November 16, 2006; *Las Vegas Review-Journal* The Honorable Rory Reid, Chair, Clark County Board of Commissioners, 500 South Grand Central Parkway, Las Vegas, NV 89106 February 15, 2007 320003 Nevada: Clark Unincorporated areas of Clark County (06-09-BC35P) November 9, 2006; November 16, 2006; *Las Vegas Review-Journal* The Honorable Rory Reid, Clark County Board of Commissioners, 500 South Grand Central Parkway, Las Vegas, NV 89106 October 24, 2006 320003 New Mexico: Bernalillo City of Albuquerque (07-06-0332P) February 1, 2007; February 8, 2007; *The Albuquerque Journal* The Honorable Martin J. Chavez, Mayor, City of Albuquerque, P.O. Box 1293, Albuquerque, NM 87103 May 10, 2007 350002 New Mexico: Sandoval City of Rio Rancho (06-06-BI29P) November 30, 2006; December 7, 2006; *The Santa Fe New Mexican* The Honorable Ken Jackson, Mayor, City of Rio Rancho, 3900 Southern Boulevard, Rio Rancho, NM 87124 December 1, 2006 350146 North Carolina: Durham City of Durham (06-04-B004P) November 9, 2006; November 16, 2006; *The Herald-Sun* The Honorable William V. “Bill” Bell, Mayor, City of Durham, 101 City Hall Plaza, Durham, NC 27701 October 27, 2006 370086 Ohio: Allen City of Lima (05-05-0634P) November 30, 2006; December 7, 2006; *The Lima News* The Honorable David J. Berger, Mayor, City of Lima, 50 Town Square, Lima, OH 45801 March 8, 2007 390006 Ohio: Allen Unincorporated areas of Allen County (05-05-0634P) November 30, 2006; December 7, 2006; *The Lima News* The Honorable Greg Sneary, President, Allen County Board of Commissioners, 301 West North Street, Lima, OH 45801 March 8, 2007 390758 Ohio: Lake City of Mentor (06-05-BY78P) January 12, 2007; January 19, 2007; *The News Herald* The Honorable Ray Kirchner, Mayor, City of Mentor, 8500 Civic Center Boulevard, Mentor, OH 44060 January 2, 2007 390317 Ohio: Lorain City of Amherst (05-05-A229P) November 30, 2006; December 7, 2006; *Chronicle Telegraph* The Honorable David A. Taylor, Mayor, City of Amherst, 480 Park Avenue, Amherst, OH 44001 March 8, 2007 390347 Ohio: Lucas City of Toledo (06-05-B078P) December 1, 2006; December 7, 2006; *Toledo Legal News* The Honorable Carleton S. Finkbeiner, Mayor, City of Toledo, One Government Center, 640 Jackson, Suite 2200, Toledo, OH 43604 October 30, 2006 395373 Ohio: Lucas City of Toledo (07-05-0330X) December 21, 2006; December 28, 2006; *Toledo Legal News* The Honorable Carleton S. Finkbeiner, Mayor, City of Toledo, One Government Center, 640 Jackson, Suite 2200, Toledo, OH 43604 November 29, 2006 395373 Ohio: Lucas Unincorporated areas of Lucas County (06-05-BW42P) December 1, 2006; December 7, 2006; *Toledo Legal News* Ms.Tina Skeldon Wozniak, President, Lucas County Board of Commissioners, One Government Center, Suite 800, Toledo, OH 43604 October 30, 2006 390359 Oklahoma: Carter City of Ardmore (06-06-B689P) December 21, 2006; December 28, 2006; *Ardmoreite* The Honorable Bob Clark, Mayor, City of Ardmore, P.O. Box 249, Ardmore, OK 73401 November 30, 2006 400031 Oklahoma: Oklahoma City of Oklahoma City (06-06-B396P) January 11, 2007; January 18, 2007; *The Oklahoman* The Honorable Mick Cornett, Mayor, City of Oklahoma City, 200 North Walker Street, Third Floor, Oklahoma City, OK 73102 April 19, 2007 405378 Oklahoma: Tulsa City of Broken Arrow (06-06-BJ56P) January 18, 2007; January 25, 2007; *Tulsa World* The Honorable Richard Carter, Mayor, City of Broken Arrow, P.O. Box 610, Broken Arrow, OK 74012 January 29, 2007 400236 Pennsylvania: Cumberland Township of Lower Allen (06-03-B823P) November 30, 2006; December 7, 2006; *The Sentinel* The Honorable John T. Titzel, President, Board of Commissioners, Township of Lower Allen, 1993 Hummel Avenue, Camp Hill, PA 17011 March 8, 2007 421016 Pennsylvania: Cumberland Township of Silver Spring (06-03-B462P) December 21, 2006; December 28, 2006; *The Sentinel* The Honorable Christopher R. Latta, Chairman, Silver Spring Township Supervisors, 6475 Carlisle Pike, Mechanicsburg, PA 17055 November 30, 2006 420370 Pennsylvania: Delaware Township of Thornbury (07-03-0012P) January 11, 2007; January 18, 2007; *Delaware County Daily Times* The Honorable Lou Gagliardi, Chairman, Thornbury Township Board of Supervisors, 8 Township Drive, Cheyney, PA 19319 December 18, 2006 425390 Pennsylvania: Lehigh City of Allentown (06-03-B617P) December 1, 2006; December 8, 2006; *The Express-Times* The Honorable Ed Pawlowski, Mayor, City of Allentown, Office of the Mayor, 435 Hamilton Street, Allentown, PA 18101 March 9, 2007 420585 Rhode Island: Bristol Town of Bristol (05-01-0763P) November 9, 2006; November 16, 2006; *The Phoenix Times* The Honorable Diane C. Mederos, Mayor, Town of Bristol, Town Hall, 10 Court Street, Bristol, RI 02809 October 17, 2006 445393 Rhode Island: Providence Town of North Smithfield (06-01-B167P) November 30, 2006; December 7, 2006; *The Call* The Honorable David Lovett, Chairman, North Smithfield Town Council, 1 Main Street, North Smithfield, RI 02876 October 10, 2006 440021 South Carolina: Charleston City of Charleston (06-04-BQ23P) November 30, 2006; December 7, 2006; *The Post and Courier* The Honorable Joseph P. Riley, Jr., Mayor, City of Charleston, P.O. Box 652, Charleston, SC 29402 October 27, 2006 455412 South Carolina: Charleston City of Isle of Palms (07-04-0193P) December 21, 2006; December 28, 2006; *The Post and Courier* Ms. Linda Lovvorn Tucker, City Administrator, City of Isle of Palms, Post Office Box 508, Isle of Palms, SC 29451 November 30, 2006 455416 South Carolina: Horry City of Myrtle Beach (05-04-2815P) December 21, 2006; December 28, 2006; *Horry Independent* Mr. Thomas Leath, Manager, City of Myrtle Beach, P.O. Drawer 2468, Myrtle Beach, SC 29577 November 17, 2006 450109 South Carolina: Horry Unincorporated areas of Horry County (06-04-C114P) November 22, 2006; November 30, 2006; *Horry Independent* Mr. Danny Knight, County Administrator, Horry County, P.O. Box 1236, Conway, SC 29528 March 1, 2007 450104 South Carolina: Richland Town of Blythewood (06-04-C394P) January 18, 2007; January 25, 2007; *Country Chronicle* The Honorable Pete Amoth, Mayor, Town of Blythewood, P.O. Box 1004, Blythewood, SC 29016 April 26, 2007 450258 South Carolina: Richland Unincorporated areas of Richland County (06-04-BP19P) December 22, 2006; December 29, 2006; *The Columbia Star* The Honorable Anthony G. Mizzell, Chair, Richland County Council, 106 Wembley Street, Columbia, SC 29209 March 30, 2007 450170 South Carolina: Richland Unincorporated areas of Richland County (06-04-BX98P) January 19, 2007; January 26, 2007; *The Columbia Star* Mr. J. Milton Pope, Interim County Administrator, Richland County, P.O. Box 192, Columbia, SC 29202 April 27, 2007 450170 South Carolina: Richland Unincorporated areas of Richland County (06-04-BX99P) January 19, 2007; January 26, 2007; *The Columbia Star* The Honorable Anthony G. Mizzell, Chair, Richland County Council, 106 Wembley Street, Columbia, SC 29209 April 27, 2007 450170 South Carolina: Richland Unincorporated areas of Richland County (07-04-0179P) December 22, 2006; December 29, 2006; *The Columbia Star* The Honorable Anthony Mizzell, Chairman, Richland County Council, P.O. Box 192, Columbia, SC 29202 March 30, 2007 450170 South Dakota: Pennington City of Rapid City (06-08-B495P) December 21, 2006; December 28, 2006; *Rapid City Journal* The Honorable Jim Shaw, Mayor, City of Rapid City, 300 Sixth Street, Rapid City, SD 57701 March 29, 2007 465420 South Dakota: Pennington Unincorporated areas of Pennington County (06-08-B495P) December 21, 2006; December 28, 2006; *Rapid City Journal* The Honorable Kenneth Davis, Chairperson, Pennington County Board of Commissioners, 315 Saint Joseph Street, Rapid City, SD 57701 March 29, 2007 460064 Tennessee: Nashville and Davidson Metropolitan Government of Nashville and Davidson County (07-04-0583P) December 21, 2006; December 28, 2006; *Nashville Record* The Honorable Bill Purcell, Mayor, Metropolitan Government of Nashville and Davidson County, 107 Metropolitan Courthouse, Nashville, TN 37201 November 30, 2006 470040 Tennessee: Williamson Town of Nolensville (06-04-BX96P) December 21, 2006; December 28, 2006; *Tennessean A.M. Section* The Honorable Tommy Dugger, Mayor, Town of Nolensville, 2260 Rolling Hills, Nolensville, TN 37135 November 22, 2006 470425 Texas: Bexar City of Live Oak (04-06-A273P) November 30, 2006; December 7, 2006; *Daily Commercial Recorder* The Honorable Henry O. Edward, Jr., Mayor, City of Live Oak, 8001 Shin Oak Drive, Live Oak, TX 78233 March 8, 2007 480043 Texas: Bexar City of San Antonio (06-06-B191P) November 30, 2006; December 7, 2006; *Daily Commercial Recorder* The Honorable Phil Hardberger, Mayor, City of San Antonio, P.O. Box 839966, San Antonio, TX 78283 March 8, 2007 480045 Texas: Bexar City of San Antonio (06-06-BC37P) November 30, 2006; December 7, 2006; *Daily Commercial Recorder* The Honorable Phil Hardberger, Mayor, City of San Antonio, P.O. Box 839966, San Antonio, TX 78283 March 8, 2007 480045 Texas: Bexar City of San Antonio (06-06-BD54P) November 22, 2006; November 30, 2006; *Daily Commercial Recorder* The Honorable Phil Hardberger, Mayor, City of San Antonio, P.O. Box 839966, San Antonio, TX 78283 March 1, 2007 480045 Texas: Bexar City of San Antonio (06-06-BH85P) January 11, 2007; January 18, 2007; *Daily Commercial Recorder* The Honorable Phil Hardberger, Mayor, City of San Antonio, P.O. Box 839966, San Antonio, TX 78283 January 29, 2007 480045 Texas: Bexar City of Shavano Park (06-06-BD54P) November 22, 2006; November 30, 2006; *Daily Commercial Recorder* The Honorable Tommy Peyton, Mayor, City of Shavano Park, 900 Saddletree Court, San Antonio, TX 78231 March 1, 2007 480047 Texas: Bexar Unincorporated areas of Bexar County (04-06-A273P) November 30, 2006; December 7, 2006; *Daily Commercial Recorder* The Honorable Nelson W. Wolff, County Judge, Bexar County Courthouse, 100 Dolorosa, Suite 1.20, San Antonio, TX 78205 March 8, 2007 480035 Texas: Bexar Unincorporated areas of Bexar County (05-06-A499P) January 11, 2007; January 18, 2007; *Daily Commercial Recorder* The Honorable Nelson W. Wolff, Bexar County Judge, Bexar County Courthouse, 100 Dolorosa, Suite 1.20, San Antonio, TX 78205 April 19, 2007 480035 Texas: Brazos City of College Station (06-06-B753P) December 21, 2006; December 28, 2006; *The Eagle* The Honorable Ron Silvia, Mayor, City of College Station, 1101 Texas Avenue, College Station, TX 77840 March 29, 2007 480083 Texas: Collin City of Allen (06-06-B685P) December 21, 2006; December 28, 2006; *The Allen American* The Honorable Stephen Terrell, Mayor, City of Allen, 305 Century Parkway, Allen, TX 75013 March 29, 2007 480131 Texas: Dallas City of Dallas (06-06-BF15P) January 11, 2007; January 18, 2007; *Daily Commercial Record* The Honorable Laura Miller, Mayor, City of Dallas, 1500 Marilla Drive, Dallas, TX 75201 April 19, 2007 480171 Texas: Dallas City of Grand Prairie (06-06-B413P) December 21, 2006; December 28, 2006; *The Daily Commercial Record* The Honorable Charles England, Mayor, City of Grand Prairie, 317 College Street, Grand Prairie, TX 75050 March 29, 2007 485472 Texas: Ellis City of Waxahachie (06-06-BF64P) November 9, 2006; November 16, 2006; *Waxahachie Daily Light* The Honorable Jay Barksdale, Mayor, City of Waxahachie, P.O. Box 757, Waxahachie, TX 75165 February 15, 2007 480211 Texas: Galveston City of Hitchcock (06-06-BK83P) February 1, 2007; February 8, 2007; *The Galveston County Daily News* The Honorable Lee A. Sander, Mayor, City of Hitchcock, 7423 Highway 6, Hitchcock, TX 77563 May 10, 2007 485479 Texas: Galveston City of La Marque (06-06-BK38P) February 1, 2007; February 8, 2007; *The Galveston County Daily News* The Honorable Larry Crow, Mayor, City of La Marque, 1111 Bayou Road, La Marque, TX 77568 May 10, 2007 485486 Texas: Harris Unincorporated areas of Harris County (06-06-B328P) November 30, 2006; December 7, 2006; *Houston Chronicle* The Honorable Robert Eckels, Harris County Judge, 1001 Preston, Suite 911, Houston, TX 77002 October 30, 2006 480287 Texas: Harris Unincorporated areas of Harris County (06-06-B392P) November 30, 2006; December 7, 2006; *Houston Chronicle* The Honorable Robert Eckels, Harris County Judge, 1001 Preston, Suite 911, Houston, TX 77002 March 7, 2007 480287 Texas: Montgomery Unincorporated areas of Montgomery County (06-06-BE46P) December 20, 2006; December 27, 2006; *Conroe Courier* The Honorable Alan B. Sadler, Montgomery County Judge, 301 North Thompson, Suite 210, Conroe, TX 77301 March 28, 2007 480483 Texas: Tarrant City of Colleyville (06-06-BG05P) December 21, 2006; December 28, 2006; *Fort Worth Star-Telegram* The Honorable David Kelly, Mayor, City of Colleyville, 100 Main Street, Colleyville, TX 76034 March 29, 2007 480590 Texas: Tarrant City of Fort Worth (06-06-B537P) December 21, 2006; December 28, 2006; *Fort Worth Star-Telegram* The Honorable Michael J. Moncrief, Mayor, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102 January 2, 2007 480596 Texas: Tarrant City of Fort Worth (06-06-B717P) November 9, 2006; November 16, 2006; *Fort Worth Star-Telegram* The Honorable Michael J. Moncrief, Mayor, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102 February 15, 2007 480596 Texas: Tarrant City of Fort Worth (06-06-BH46P) December 21, 2006; December 28, 2006; *Fort Worth Star-Telegram* The Honorable Michael J. Moncrief, Mayor, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102 November 27, 2006 480596 Texas: Tarrant City of Fort Worth (06-06-BK70P) November 9, 2006; November 16, 2006; *Fort Worth Star-Telegram* The Honorable Michael J. Moncrief, Mayor, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102 February 15, 2007 480596 Texas: Tarrant City of Fort Worth (06-06-BK71P) December 21, 2006; December 28, 2006; *Fort Worth Star-Telegram* The Honorable Michael J. Moncrief, Mayor, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, TX 76102 March 29, 2007 480596 Utah: Grand City of Moab (06-08-B290P) November 30, 2006; December 7, 2006; *The Times-Independent* The Honorable David Sakrison, Mayor, City of Moab, 217 East Center Street, Moab, UT 84532 March 8, 2007 490072 Utah: Grand Unincorporated areas of Grand County (06-08-B290P) November 30, 2006; December 7, 2006; *The Times-Independent* The Honorable Joette Langianese, Chair, Grand County Council, 125 East Center Street, Moab, UT 84532 March 8, 2007 490232 Utah: Salt Lake City of South Jordan (06-08-B511P) December 21, 2006; December 28, 2006; *The Salt Lake Tribune* The Honorable William Kent Money, Mayor, City of South Jordan, 1600 West Towne Center Drive, South Jordan, UT 84095 November 27, 2006 490107 Utah: Washington City of St. George (05-08-0365P) November 22, 2006; November 29, 2006; *St. George Spectrum* The Honorable Daniel D. McArthur, Mayor, City of St. George, 175 East 200 North, St. George, UT 84770 February 28, 2007 490177 Utah: Washington Unincorporated areas of Washington County (05-08-0365P) November 22, 2006; November 29, 2006; *St. George Spectrum* The Honorable James J. Eardley, Chairman, Washington County Board of Commissioners, 197 East Tabernacle Street, St. George, UT 84770 February 28, 2007 490224 Virginia: Rockingham Unincorporated areas of Rockingham County (07-03-0034P) December 21, 2006; December 28, 2006; *Daily News-Record* Mr. Joseph S. Paxton, County Administrator, Rockingham County Administration Center, 20 East Gay Street, Harrisonburg, VA 22802 March 29, 2007 510133 Wisconsin: Washington Village of Germantown (06-05-BH45P) January 18, 2007; January 25, 2007; *West Bend Daily News* The Honorable Charles J. Hargan, President, Village of Germantown Board of Trustees, P.O. Box 337, Germantown, WI 53022 April 26, 2007 550472 (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: March 16, 2007. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-5608 Filed 3-27-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 65 Changes in Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Modified Base (1 % annual-chance) Flood Elevations

(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety

(90)days have elapsed since that publication. The Mitigation Division Director of FEMA resolved any appeals resulting from this notification. The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFEs determinations are available for inspection. The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 *et seq.* , and with 44 CFR part 65. For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals. The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP). These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4. *National Environmental Policy Act.* This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This final rule involves no policies that have federalism implications under Executive Order 13132, Federalism. *Executive Order 12988, Civil Justice Reform.* This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 65 Flood insurance, Floodplains, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 65 is amended to read as follows: PART 65—[AMENDED] 1. The authority citation for part 65 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p.376. § 65.4 [Amended] 2. The tables published under the authority of § 65.4 are amended as follows: State and county Location and case No. Date and name of newspaper where notice was published Chief executive officer of community Effective date of modification Community No. Alabama: Houston, (FEMA Docket No.: B-7467) City of Dothan (05-04-A105P) May 18, 2006; May 25, 2006; *Dothan Eagle* The Honorable Pat Thomas, Mayor, City of Dothan, P.O. Box 2128, Dothan, Alabama 36302 August 24, 2006 010104 Jefferson, (FEMA Docket No.: B-7467) City of Trussville (06-04-BI39P) June 22, 2006; June 29, 2006; *Birmingham News* The Honorable Eugene A. Melton, Mayor, City of Trussville, Trussville City Hall, 131 Main Street, Trussville, Alabama 35173 September 28, 2006 010133 Jefferson, (FEMA Docket No.: B-7467) Unincorporated areas of Jefferson County (06-04-BI39P) June 22, 2006; June 29, 2006; *Birmingham News* The Honorable Larry Langford, President, Jefferson County Commission, Jefferson County Courthouse, Room 240, 716 Richard Arrington Jr. Boulevard, North Birmingham, Alabama 35203 September 28, 2006 010217 Jefferson, (FEMA Docket No.: B-7467) Unincorporated areas of Jefferson County (06-04-B748P) July 27, 2006; August 3, 2006; *Birmingham News* The Honorable Larry Langford, President, Jefferson County Commission, Jefferson County Courthouse, Room 240, 716 Richard Arrington Jr. Boulevard, North Birmingham, Alabama 35203 June 30, 2006 010217 Madison, (FEMA Docket No.: B-7467) City of Huntsville (06-04-B136P) July 14, 2006; July 21, 2006; *Madison County Record* The Honorable Loretta Spencer, Mayor, City of Huntsville, P.O. Box 308, Huntsville, Alabama 35804 June 26, 2006 010153 Mobile, (FEMA Docket No.: B-7467) Unincorporated areas of Mobile County (06-04-A402P) July 20, 2006; July 27, 2006; *Mobile Press Register* Mr. John Pafenbach, County Administrator, Mobile County, 205 Government Street, Mobile, Alabama 36644 June 30, 2006 015008 Shelby, (FEMA Docket No.: B-7467) City of Pelham (06-04-B342P) July 12, 2006; July 19, 2006; *Shelby County Reporter* The Honorable Bobby Hayes, Mayor, City of Pelham, P.O. Box 1419, Pelham, Alabama 35124 October 18, 2006 010193 Tuscaloosa, (FEMA Docket No.: B-7467) City of Northport (05-04-1187P) January 18, 2006; January 25, 2006; *The Northport Gazette* The Honorable Harvey Fretwell, Mayor, City of Northport, City Hall, 3500 McFarland Boulevard, Northport, Alabama 35476 April 26, 2006 010202 Tuscaloosa, (FEMA Docket No.: B-7467) City of Northport (05-04-A392P) May 17, 2006; May 24, 2006; *The Northport Gazette* The Honorable Harvey Fretwell, Mayor, City of Northport, City Hall, 3500 McFarland Boulevard, Northport, Alabama 35476 August 23, 2006 010202 Tuscaloosa, (FEMA Docket No.: B-7467) City of Tuscaloosa (05-04-A392P) May 17, 2006; May 24, 2006; *The Northport Gazette* The Honorable Walter Maddox, Mayor, City of Tuscaloosa, P.O. Box 2089, Tuscaloosa, Alabama 35403-2089 August 23, 2006 010203 Tuscaloosa, (FEMA Docket No.: B-7467) Unincorporated areas of Tuscaloosa County (05-04-1187P) January, 18 2006; January 25, 2006; *The Northport Gazette* The Honorable W. Hardy McCollum, Chairman, Tuscaloosa County, Board of Commissioners, 714 Greensboro Avenue, Tuscaloosa, Alabama 35401 April 26, 2006 010201 Tuscaloosa, (FEMA Docket No.: B-7467) Unincorporated areas of Tuscaloosa County (05-04-A392P) May 17, 2006; May 24, 2006; *The Northport Gazette* The Honorable W. Hardy McCollum, Chairman, Tuscaloosa County, Board of Commissioners, 714 Greensboro Avenue, Tuscaloosa, Alabama 35401 August 23, 2006 010201 Arkansas: Benton, (FEMA Docket No.: B-7467) City of Rogers (05-06-A559P) August 30, 2006; September 6, 2006; *Arkansas Democrat Gazette Rogers Hometown News* The Honorable Steve Womack, Mayor, City of Rogers, 300 West Poplar Street, Rogers, Arkansas 72756 July 28, 2006 050013 Arizona: Maricopa, (FEMA Docket No.: B-7467) City of Chandler (04-09-1562P) November 10, 2005; November 17, 2005; *Arizona Business Gazette* The Honorable Boyd W. Dunn, Mayor, City of Chandler, P.O. Box 4008, Mail Stop 603, Chandler, Arizona 85244-4008 October 26, 2005 040040 Maricopa, (FEMA Docket No.: B-7467) City of Avondale (06-09-B472P) July 13, 2006; July 20, 2006; *Arizona Business Gazette* The Honorable Marie Lopez-Rogers, Mayor, City of Avondale, 525 North Central Avenue, Avondale, Arizona 85323 June 30, 2006 040038 Maricopa, (FEMA Docket No.: B-7467) Town of Paradise Valley (05-09-1284P) December 8, 2005; December 15, 2005; *Arizona Business Gazette* The Honorable Ron Clarke, Mayor, Town of Paradise, 6401 East Lincoln Drive, Paradise Valley, Arizona 85253 March 16, 2006 040049 Maricopa, (FEMA Docket No.: B-7467) City of Phoenix (05-09-1284P) December 8, 2005; December 15, 2005; *Arizona Business Gazette* The Honorable Phil Gordon, Mayor, City of Phoenix, 200 West Washington Street, 11th Floor, Phoenix, Arizona 85003-1611 March 16, 2006 040051 Pinal, (FEMA Docket No.: B-7467) Unincorporated areas of Pinal County (05-09-A319P) February 8, 2006; February 15, 2006; *Copper Basin News* The Honorable Sandie Smith, Chair, Pinal County Board of Supervisors, P.O. Box 827, Florence, Arizona 85232 January 30, 2006 040077 Pinal, (FEMA Docket No.: B-7467) Unincorporated areas of Pinal County (06-09-B339P) April 19, 2006; April 26, 2006; *Copper Basin News* The Honorable Sandie Smith, Chair, Pinal County Board of Supervisors, P.O. Box 827, Florence, Arizona 85232 March 31, 2006 040077 California: Alameda, (FEMA Docket No.: B-7474) Unincorporated areas of Alameda County (06-09-B390P) September 14, 2006; September 21, 2006; *Tri-Valley Herald* The Honorable Keith Carson, President, Alameda County Board of Supervisors 1221 Oak Street, Suite 536, Oakland, CA 94612 August 18, 2006 060001 Delaware: New Castle, (FEMA Docket No.: B-7474) Unincorporated areas of New Castle County (06-03-B140P) October 5, 2006; October 12, 2006; *The News Journal* The Honorable Chris Coons, County Executive, New Castle County, 87 Read's Way, New Castle, DE 19720 January 4, 2007 105085 Florida: Duval, (FEMA Docket No.: B-7467) City of Jacksonville (05-04-1679P) November 14, 2005; November 21, 2005; *Daily Record* , The Honorable John Peyton, Mayor, City of Jacksonville 117 West Duval Street, Jacksonville, Florida 32202-3731 October 27, 2005 120077 Duval, (FEMA Docket No.: B-7467) City of Jacksonville (05-04-A259P) June 19, 2006; June 26, 2006; *Daily Record* The Honorable John Peyton, Mayor, City of Jacksonville, 117 West Duval Street, Jacksonville, Florida 32202-3731 September 25, 2006 120077 Duval, (FEMA Docket No.: B-7467) City of Jacksonville (05-04-A260P) May 15, 2006; May 22, 2006; *Daily Record* The Honorable John Peyton, Mayor, City of Jacksonville, 117 West Duval Street, Jacksonville, Florida 32202-3731 August 21, 2006 120077 Duval, (FEMA Docket No.: B-7467) City of Jacksonville (06-04-A703P) June 19, 2006; June 26, 2006; *Daily Record* The Honorable John Peyton, Mayor, City of Jacksonville, 117 West Duval Street, Jacksonville, Florida 32202-3731 September 25, 2006 120077 Duval, (FEMA Docket No.: B-7467) City of Jacksonville (06-04-B326P) May 15, 2006; May 22, 2006; *Daily Record,* The Honorable John Peyton, Mayor, City of Jacksonville, 117 West Duval Street, Jacksonville, Florida 32202-3731 April 27, 2006 120077 Duval, (FEMA Docket No.: B-7467) City of Jacksonville (06-04-BF40P) August 21, 2006; August 28, 2006; *Daily Record* The Honorable John Peyton, Mayor, City of Jacksonville, 117 West Duval Street, Jacksonville, Florida 32202-3731 November 27, 2006 120077 Lake, (FEMA Docket No.: B-7467) Unincorporated areas of Lake County (05-04-3652P) June 16, 2006; June 23, 2006; *Daily Commercial* The Honorable Catherine C. Hanson, Chairman, Lake County Board of Commissioners, P.O. Box 7800, Tavares, Florida 32778 May 23, 2006 120421 Lake, (FEMA Docket No.: B-7467) City of Mount Dora (05-04-3654P) June 15, 2006; June 22, 2006; *Daily Commercial* The Honorable James E. Yatsuk, Mayor, City of Mount Dora, P.O. Box 176, Mount Dora, Florida 32756 May 23, 2006 120137 Manatee, (FEMA Docket No.: B-7467) Unincorporated areas of Manatee County (05-04-0296P) March 16, 2006; March 23, 2006; *Bradenton Herald* The Honorable Joe McClash, Chairman, Manatee County Board of Commissioners, P.O. Box 1000, Bradenton, Florida 34206-1000 June 22, 2006 120153 Manatee, (FEMA Docket No.: B-7467) Unincorporated areas of Manatee County (05-04-A393P) May 18, 2006; May 25, 2006; *Bradenton Herald* The Honorable Joe McClash, Chairman, Manatee County Board of Commissioners, P.O. Box 1000, Bradenton, Florida 34206-1000 April 28, 2006 120153 Marion, (FEMA Docket No.: B-7467) Unincorporated areas of Marion County (05-04-A236P) June 22, 2006; June 29, 2006; *Ocala Star Banner* The Honorable Patrick G. Howard, County Administrator, Marion County, 601 Southeast 25th Avenue, Ocala, Florida 34471 September 28, 2006 120160 Miami-Dade, (FEMA Docket No.: B-7467) City of Miami (06-04-BL20P) July 20, 2006; July 27, 2006; *New Times* The Honorable Manuel A. Diaz, Mayor, City of Miami, Miami City Hall, 3500 Pan American Drive, Miami, Florida 33133 June 30, 2006 120650 Putnam, (FEMA Docket No.: B-7467) Unincorporated areas of Putnam County (06-04-B037P) May 18, 2006; May 25, 2006; *Palatka Daily News* Mr. Rick Larry, County Administrator, Putnam County, P.O. Box 758, Palatka, Florida 32178 August 24, 2006 120272 Georgia: Barrow, (FEMA Docket No.: B-7467) Unincorporated areas of Barrow County (05-04-3757P) April 5, 2006; April 12, 2006; *Barrow County News* The Honorable Douglas H. Garrison, Chairman, Barrow County Board of Commissioners, 233 East Broad Street, Winder, Georgia 30680 September 13, 2006 130497 Bartow, (FEMA Docket No.: B-7467) City of Cartersville (05-04-1806P) June 22, 2006; June 29, 2006; *Daily Tribune News* The Honorable Michael G. Fields, Mayor, City of Cartersville, P.O. Box 1390, Cartersville, Georgia 30120 September 28, 2006 130209 Bartow, (FEMA Docket No.: B-7467) Unincorporated areas of Bartow County (05-04-1806P) June 22, 2006; June 29, 2006; *Daily Tribune News* The Honorable Clarence Brown, Bartow County Commissioner, 135 West Cherokee Avenue, Suite 251, Cartersville, Georgia 30120 September 28, 2006 130463 Cherokee, (FEMA Docket No.: B-7467) Unincorporated areas of Cherokee County (05-04-A211P) August 25, 2006; September 1, 2006; *Cherokee Tribune* The Honorable J. Michael Byrd, Chairman, Cherokee County, 90 North Street, Suite 310, Canton, Georgia 30114 December 1, 2006 130424 Columbia, (FEMA Docket No.: B-7467) Unincorporated Areas of Columbia County (05-04-2889P) August 23, 2006; August 30, 2006; *Columbia County News-Times* The Honorable Ron C. Cross, Chairman, Board of Commissioners, Columbia County, 908 Nerium Trail, Evans, Georgia 30809 November 29, 2006 130059 Forsyth, (FEMA Docket No.: B-7467) Unincorporated areas of Forsyth County (05-04-1738P) May 24, 2006; May 31, 2006; *Forsyth County News* Mr. Jeff L. Quesenberry, County Manager, Forsyth County, 110 East Main Street, Suite 210, Cumming, Georgia 30040 July 26, 2006 130312 Forsyth, (FEMA Docket No.: B-7467) Unincorporated areas of Forsyth County (05-04-2202P) April 12, 2006; April 19, 2006; *Forsyth County News* The Honorable Jack Conway, Commission Chairman, Forsyth County, 110 East Main Street, Suite 210, Cumming, Georgia 30040 July 19, 2006 130312 Harris, (FEMA Docket No.: B-7467) Unincorporated areas of Harris County (05-04-A568P) June 15, 2006; June 22, 2006; *Harris County Journal* Mr. Kim W. Russell, Executive Director, Harris County, P.O. Box 426, Hamilton, Georgia 31811 May 24, 2006 130338 Thomas, (FEMA Docket No.: B-7467) City of Thomasville (06-04-B168P) March 24, 2006; March 31, 2006; *Thomasville Times Enterprise* The Honorable David Lewis, Mayor, City of Thomasville, P.O. Box 1540, Thomasville, Georgia 31799 March 6, 2006 130170 Iowa: Black Hawk, (FEMA Docket No.: B-7467) City of Cedar Falls (04-07-A141P) February 23, 2006; March 2, 2006; *Waterloo Courier* The Honorable Jon Crews, Mayor, City of Cedar Falls, 220 Clay Street, Cedar Falls, Iowa 50613 February 6, 2006 190017 Linn, (FEMA Docket No.: B-7467) Unincorporated areas of Linn County (05-07-0212P) April 20, 2006; April 27, 2006; *Cedar Rapids Gazette* The Honorable Linda Langston, Chairperson, Linn County Board of Supervisors, 930 First Street Southwest, Cedar Rapids, Iowa 52404 March 31, 2006 190829 Story, (FEMA Docket No.: B-7467) City of Ames (04-07-A685P) November 10, 2005; November 17, 2005; *The Tribune* The Honorable Ted Tedesco, Mayor, City of Ames, 515 Clark Avenue, Ames, Iowa 50010 February 16, 2006 190254 Kansas: Cowley, (FEMA Docket No.: B-7467) City of Arkansas City (04-07-A497P) March 15, 2006; March 22, 2006; *Arkansas City Traveler* The Honorable Joel Hockenbury, Mayor, City of Arkansas City, 118 West Central Avenue, Arkansas City, Kansas 67005 June 21, 2006 200070 Cowley, (FEMA Docket No.: B-7467) Unincorporated areas of Cowley County, (04-07-A497P) March 15, 2006; March 22, 2006; *Arkansas City Traveler* The Honorable Gary Wilson, Chairman, Cowley County Board of Commissioners, 311 East Ninth Avenue, Winfield, Kansas 67156 June 21, 2006 200563 Harvey, (FEMA Docket No.: B-7467) City of Sedgwick (04-07-A502P) January 26, 2006; February 2, 2006; *The Newton Kansan* The Honorable Keith Dehaven, Mayor, City of Sedgwick, 511 North Commercial, Sedgwick, Kansas 67135 May, 4 2006 200134 Harvey, (FEMA Docket No.: B-7467) Unincorporated areas of Harvey County (04-07-A502P) January 26, 2006; February 2, 2006; *The Newton Kansan* The Honorable Ron Krehbiel, Chairman, Harvey County, Board of Commissioners, P.O. Box 687, Newton, Kansas 67114 May 4, 2006 200585 Johnson, (FEMA Docket No.: B-7467) City of Overland Park (05-07-A066P) February 9, 2006; February 16, 2006; *The Johnson County Sun* The Honorable Carl Gerlach, Mayor, City of Overland Park, 8500 Santa Fe Drive, Overland Park, Kansas 66212 January 20, 2006 200174 Sedgwick, (FEMA Docket No.: B-7467) Unincorporated areas Sedgwick County (05-07-0176P) February 9, 2006; February 16, 2006; *Derby Reporter* The Honorable Dave Unruh, Chairman, Sedgwick County, Board of Commissioners, 525 North Main Street, Suite 320, Wichita, Kansas 67203 May 18, 2006 200321 Sedgwick, (FEMA Docket No.: B-7467) Unincorporated areas of Sedgwick County (05-07-B015P) June 8, 2006; June 15, 2006; *Wichita Eagle* The Honorable Dave Unruh, Chairman, Sedgwick County, Board of Commissioners, 525 North Main Street, Suite 320, Wichita, Kansas 67203 May 16, 2006 200321 Sedgwick, (FEMA Docket No.: B-7467) City of Wichita (05-07-0752P) May 18, 2006; May 25, 2006; *Wichita Eagle* The Honorable Carlos Mayans, Mayor, City of Wichita, 455 North Main, Wichita, Kansas 67202 August 24, 2006 200328 Sedgwick (FEMA Docket No.: B-7467) City of Wichita (06-07-B015P) June 8, 2006; June 15, 2006; *Wichita Eagle* The Honorable Carlos Mayans, Mayor, City of Wichita, 455 North Main, Wichita, Kansas 67202 May 16, 2006 200328 Wyandotte, (FEMA Docket No.: B-7467) City of Kansas City (04-07-A556P) May 25, 2006; June 1, 2006; *Kansas City Daily Record* The Honorable Joe Reardon, Mayor, Unified Government of Wyandotte County/Kansas City, 701 North Seventh Street, Kansas City, Kansas 66101 August 31, 2006 200363 Maine: Cumberland, (FEMA Docket No.: B-7467) Town of Standish (05-01-B168P) August 31, 2006; September 7, 2006; *Portland Press Herald* Mr. Gordon F. Billington, Town Manager, Town of Standish, 175 Northeast Road, Standish, Maine 04084 December 7, 2006 230207 Cumberland, (FEMA Docket No.: B-7467) Town of Windham (06-01-B270P) September 14, 2006; September 21, 2006; *Portland Press Herald* The Honorable John MacKinnon, Chairman, Windham Town Council, Eight School Road, Windham, Maine 04062 December 21, 2006 230189 Minnesota: Ramsey (FEMA Docket No.: B7467) City of Shoreview (04-05-B066P), (06-05-BD34X) December 20, 2005; December 27, 2005; *The North Suburban Press* The Honorable Sandy Martin, Mayor, City of Shoreview, 4600 Victoria Street North, Shoreview, Minnesota 55126 March 31, 2006 270384 Rice, (FEMA Docket No.: B7467) City of Northfield (05-05-1343P) November 16, 2005; November 23, 2005; *Northfield News* The Honorable Lee Lansing, Mayor, City of Northfield, City Hall, 801 Washington Street, Northfield, Minnesota 55057 February 22, 2006 270406 Rice, (FEMA Docket No.: B7467) Unincorporated areas of Rice County (05-05-1343P) November 16, 2005; November 23, 2005; *Northfield News* The Honorable Jim Brown, Chairperson, Rice County, Board of Commissioners, 320 Northwest Third Street, Faribault, Minnesota 55021 February 22, 2006 270646 Missouri: Clay, Jackson, Platte (FEMA Docket No.: B7467) City of Kansas City (05-07-0483P) January 26, 2006; February 2, 2006; *Kansas City Daily Record* The Honorable Kay Barnes, Mayor, City of Kansas City, 414 East 12th Street, Kansas City, Missouri 64106 May 4, 2006 290173 Clay, Jackson, Platte (FEMA Docket No.: B7467) City of Kansas City (04-07-A556P) May 25, 2006; June 1, 2006; *Kansas City Daily Record* The Honorable Kay Barnes, Mayor, City of Kansas City, 414 East 12th Street, Kansas City, Missouri 64106 August 31, 2006 290173 Howell, (FEMA Docket No.: B7467) City of West Plains (05-07-A513P) May 19, 2006; May 25, 2006; *West Plains Daily Quill* The Honorable Joe Paul Evans, Mayor, City of West Plains, P.O. Box 710, West Plains, Missouri 65775-0710 August 24, 2006 290166 Jackson, (FEMA Docket No.: B7467) City of Grain Valley (04-07-A290P) February 23, 2006; March 3, 2006; *The Independence Examiner* The Honorable David Halphin, Mayor, City of Grain Valley, 711 Main Street, Grain Valley, Missouri 64029 June 1, 2006 290737 Jefferson, (FEMA Docket No.: B7467) City of De Soto (06-07-B476P) May 18, 2006; May 25, 2006; *Jefferson County Leader* The Honorable Werner Stichling, Mayor, City of De Soto, 411 Lueking Drive, De Soto, Missouri 63020 April 27, 2006 295263 Pettis, (FEMA Docket No.: B7467) City of Sedalia (05-07-0407P) June 22, 2006; June 29, 2006; *Sedalia Democrat* The Honorable Bob Wasson, Mayor, City of Sedalia, P.O. Box 1707, Sedalia, Missouri 65301 May 31, 2006 290283 Phelps, (FEMA Docket No.: B7467) City of Rolla (05-07-0279P) December 15, 2005; December 22, 2005; *Rolla Daily News* The Honorable Joseph E. Morgan, Mayor, City of Rolla, 102 West Ninth Street, Rolla, Missouri 65401 November 22, 2005 290285 Platte, (FEMA Docket No.: B7467) City of Northmoor (04-07-A556P) May 25, 2006; June 1, 2006; *The Landmark* The Honorable Harlan Shaver, Jr., Mayor, City of Northmoor, 4907 Northwest Waukomis Drive, Northmoor, Missouri 64151 August 31, 2006 290293 Platte, (FEMA Docket No.: B7467) City of Parkville (04-07-A556P) May 25, 2006; June 1, 2006; *The Landmark* The Honorable Kathy Dusenbery, Mayor, City of Parkville, 1201 East Street, Parkville, Missouri 64152 August 31, 2006 290294 Platte, (FEMA Docket No.: B7467) City of Riverside 04-07-A556P) May 25, 2006; June 1, 2006; *The Landmark* The Honorable Kathy Rose, Mayor, City of Riverside, 2950 Northwest Vivion Road, Riverside, Missouri 64150 August 31, 2006 290296 St. Charles, (FEMA Docket No.: B7467) City of O'Fallon (04-07-A649P) April 19, 2006; April 26, 2006; *St. Charles Journal* The Honorable Donna Morrow, Mayor, City of O'Fallon, 100 North Main Street, O'Fallon, Missouri 63366 March 31, 2006 290316 St. Charles, (FEMA Docket No.: B7467) Unincorporated areas of St. Charles County (04-07-A649P) April 19, 2006; April 26, 2006; *St. Charles Journal* The Honorable Joe Ortwerth, County Executive, St. Charles County, Historic Courthouse, 100 North Third Street, St. Charles, Missouri 63301 March 31, 2006 290315 St. Louis, (FEMA Docket No.: B7467) City of Chesterfield (04-07-A535P) (06-07-B229X) January 5, 2006; January 12, 2006; *St. Louis American* The Honorable John Nations, Mayor, City of Chesterfield, 690 Chesterfield Parkway West, Chesterfield, Missouri 63017-0670 April 13, 2006 April 14, 2006 290896 St. Louis, (FEMA Docket No.: B7467) City of Eureka (06-07-B002P) June 21, 2006; June 28, 2006; *St. Louis Daily Record* The Honorable Kevin M. Coffey, Mayor, City of Eureka, P.O. Box 125, Eureka, Missouri 63025 May 31, 2006 290349 St. Louis, (FEMA Docket No.: B7467) City of Maryland Heights (04-07-A535P) (06-07-B229X) January 5, 2006; January 12, 2006; *St. Louis American* The Honorable Mike Moeller, Mayor, City of Maryland Heights, 212 Millwell Drive, Maryland Heights, Missouri 63043 April 13, 2006 April 14, 2006 290889 St. Louis, (FEMA Docket No.: B7467) City of Valley Park (06-07-B081P) April 19, 2006; April 26, 2006; *West County Suburban Journal* The Honorable Jeffery J. Whitteaker, Mayor, City of Valley Park, 320 Benton Street, Valley Park, Missouri 63088 March 30, 2006 290391 St. Louis, (FEMA Docket No.: B7467) City of Wildwood (06-07-B002P) June 21, 2006; June 28, 2006; *St. Louis Daily Record* The Honorable Edward L. Marshall, Mayor, City of Wildwood, City Hall, 16962 Manchester Road, Wildwood, Missouri 63040 May 31, 2006 290922 Nebraska: Burt, (FEMA Docket No.: B7466) City of Tekamah (04-07-A619P) March 15, 2006; March 22, 2006; *Midwest Messenger Burt County Plaindealer* The Honorable Bill Anderson, Mayor, City of Tekamah, 1315 K Street, Tekamah, Nebraska 68061-0143 June 21, 2006 310024 Lincoln, (FEMA Docket No.: B7466) City of North Platte (04-07-A439P) January 27, 2006; February 2, 2006; *North Platte Telegraph* The Honorable G. Keith Richardson, Mayor, City of North Platte, 211 West Third Street, North Platte, Nebraska 69101 May 4, 2006 310143 Sarpy, (FEMA Docket No.: B7466) City of Bellevue (06-07-B016P) July 19, 2006; July 26, 2006; *Bellevue Leader* The Honorable Jerry Ryan, Mayor, City of Bellevue, City Hall, 210 West Mission Avenue, Bellevue, Nebraska 68005 June 30, 2006 310191 North Carolina: Buncombe, (FEMA Docket No.: B-7466) City of Asheville (05-04-2753P) December 22, 2005; December 29, 2005; *Asheville Citizen-Times* Mr. Gary Jackson, City Manager, City of Asheville, P.O. Box 7148, Asheville, North Carolina 28802 March 30, 2006 370032 Durham, (FEMA Docket No.: B-7466) City of Chapel Hill (06-04-B144P) January 27, 2006; January 30, 2006; *Chapel Hill Herald* The Honorable Kevin C. Foy, Mayor, Town Chapel Hill, 19 Oakwood Drive, Chapel Hill, North Carolina 27517 May 1, 2006 370180 Durham, (FEMA Docket No.: B-7466) City of Durham (06-04-0057P) August 17, 2006; August 24, 2006; *Herald-Sun* The Honorable William V. Bell, Mayor, City of Durham, 101 City Hall Plaza, Durham, North Carolina 27701 November 23, 2006 370086 Durham, (FEMA Docket No.: B-7466) City of Durham (06-04-B046P) June 15, 2006; June 22, 2006; *Herald-Sun* The Honorable William V. Bell, Mayor, City of Durham, 101 City Hall Plaza, Durham, North Carolina 27701 September 21, 2006 370086 Durham, (FEMA Docket No.: B-7466) City of Durham (06-04-B144P) January 27, 2006; January 30, 2006; *Chapel Hill Herald* The Honorable William V. Bell, Mayor, City of Durham, 101 City Hall Plaza, Durham, North Carolina 27701 May 1, 2006 370086 Durham, (FEMA Docket No.: B-7466) Unincorporated areas of Durham County (06-04-0057P) August 17, 2006; August 24, 2006; *Herald-Sun* Mr. Michael M. Ruffin, County Manager, Durham County, 200 East Main Street, Second Floor, Durham, North Carolina 27701 November 23, 2006 370085 Durham, (FEMA Docket No.: B-7466) Unincorporated areas of Durham County (06-04-B144P) January 27, 2006; January 30, 2006; *Chapel Hill Herald* The Honorable Ellen W. Reckhow, Chairman, Durham County Board of Supervisors, 11 Pine Top Place, Durham, North Carolina 27705 May 1, 2006 370085 Guilford, (FEMA Docket No.: B-7466) City of High Point (05-04-3099P) December 15, 2005; December 22, 2005; *High Point Enterprise* The Honorable Rebecca Rhodes-Smoothers, Mayor, City of High Point, 1843 Country Club Drive, High Point, North Carolina 27262 March 23, 2006 370113 Mecklenburg, (FEMA Docket No.: B-7466) City of Charlotte (05-04-A580P) May 18, 2006; May 25, 2006; *Charlotte Observer* The Honorable Patrick McCrory, Mayor, City of Charlotte, 600 East Fourth Street, Charlotte, North Carolina 28202 May 30, 2006 370159 Orange, (FEMA Docket No.: B-7466) Town of Carrboro (05-04-3236P) May 17, 2006; May 24, 2006; *Chapel Hill News* The Honorable Mark Chilton, Mayor, Town of Carrboro, 301 West Main Street, Carrboro, North Carolina 27510 April 25, 2006 370275 Rowan, (FEMA Docket No.: B-7466) Unincorporated areas of Rowan County (05-04-A505P) March 23, 2006; March 30, 2006; *Salisbury Post* The Honorable Arnold Chamberlain, Chairman, Rowan County Commission, 130 West Innes Street, Salisbury, North Carolina 28144-4326 June 29, 2006 370351 Wake, (FEMA Docket No.: B-7466) Town of Cary (06-04-1527P) July 20, 2006; July 27, 2006; *Wake Weekly* The Honorable Ernie McAlister, Mayor, Town of Cary, P.O. Box 8005, Cary, North Carolina 27512-8005 June 30, 2006 370238 Wake, (FEMA Docket No.: B-7466) Town of Cary (05-04-3129P) August 24, 2006; August 31, 2006; *Wake Weekly* The Honorable Ernie McAlister, Mayor, Town of Cary, P.O. Box 8005, Cary, North Carolina 27512-8005 November 30, 2006 370238 Wake, (FEMA Docket No.: B-7466) Town of Cary (06-04-B143P) January 27, 2006; January 30, 2006; *News and Observer* The Honorable Ernie McAlister, Mayor, Town of Cary, P.O. Box 8005, Cary, North Carolina 27512-8005 May 1, 2006 370238 Wake, (FEMA Docket No.: B-7466) Town of Morrisville (05-04-3129P) August 24, 2006; August 31, 2006; *Wake Weekly* The Honorable Jan Faulkner, Mayor, Town of Morrisville, Morrisville Town Hall, 100 Town Hall Drive, Morrisville, North Carolina 27560 November 30, 2006 370242 (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: March 16, 2007. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-5618 Filed 3-27-07; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations

(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map

(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety

(90)days have elapsed since that publication. The Mitigation Division Director of FEMA has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet

(NGVD)+Elevation in feet

(NAVD)# Depth in feet above ground modified Communities affected Clayton County, Georgia and Incorporated Areas Docket No.: FEMA-B-7469 Beaver Dam Creek Approximately 1,500 feet upstream of the confluence with Flint River +797 Clayton County (Unincorporated Areas). Approximately 2,500 feet upstream of the confluence with Flint River +797 East Tributary of Jester Creek At the confluence with West Tributary Jester Creek +933 City of Forest Park. Approximately 260 feet upstream of the confluence with West Tributary Jester Creek +933 Flint River Tributary Approximately 570 feet upstream of the confluence with Flint River +843 Clayton County (Unincorporated Areas). Approximately 1,250 feet upstream of the confluence with Flint River +844 City of Riverdale. Hurricane Creek Approximately 60 feet downstream of Turner Road +784 Clayton County (Unincorporated Areas). Approximately 350 feet upstream of Turner Road +784 Jester Creek Approximately 200 feet upstream of the confluence with Flint River +816 Clayton County (Unincorporated Areas). Approximately 60 feet upstream of Tara Boulevard/U.S. Highway 41/19/State Highway 3C +816 Lake Spivey Entire shoreline +786 Clayton County (Unincorporated Areas). Mud Creek At confluence with Flint River +838 Clayton County (Unincorporated Areas). Approximately 850 feet downstream of Ashmore Drive +841 Panther Creek Approximately 3,660 feet downstream of State Highway 413/Interstate Highway 675 +750 Clayton County (Unincorporated Areas). Approximately 2,220 feet downstream of State Highway 413/Interstate Highway 675 +751 Sullivan Creek At the confluence with Flint River +859 Clayton County (Unincorporated Areas). Approximately 1,000 feet upstream of the confluence with Flint River +860 Upton Creek Approximately 50 feet upstream of Double Bridge Road +803 Clayton County (Unincorporated Areas). Approximately 2,325 feet upstream of Double Bridge Road +806 West Tributary of Jester Creek At the confluence with Jester Creek +924 City of Forest Park. Approximately 320 feet upstream of confluence with Jester Creek +924 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Clayton County (Unincorporated Areas) Maps are available for inspection at Clayton County Transportation and Development Department, 7960 North McDonourgh Street, Jonesboro, Georgia. City of Forest Park Maps are available for inspection at City of Forest Park Public Works Department, 5230 Jones Road, Forest Park, Georgia. City of Riverdale Maps are available for inspection at Riverdale Community Department, 971 Wilson Road, Riverdale, Georgia. Muscogee County, Georgia (Consolidated Government) Docket No.: FEMA-B-7469 Califon Creek At the confluence with Lower Bull Creek +228 City of Columbus—Muscogee County. Approximately 400 feet upstream of Benning Drive. +228 (Consolidated Government). Lindsey Creek At the confluence with Lower Bull Creek +242 City of Columbus—Muscogee County. Approximately 440 feet upstream of Morris Road +242 (Consolidated Government). Lower Bull Creek At the confluence with Chattahoochee River +228 City of Columbus—Muscogee County. Approximately 850 feet upstream of Cusseta Road +228 (Consolidated Government). Upper Bull Creek Just upstream of Flood Control Dam No. 1 +404 City of Columbus—Muscogee County. Approximately 2,660 feet upstream Alternate U.S. Highway 27/State Highway 85 +405 (Consolidated Government). Weracoba Creek At the confluence with Lower Bull Creek +228 City of Columbus—Muscogee County. At U.S. Highway 27/Victory Drive +228 (Consolidated Government). * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Columbus Maps are available for inspection at the Department of Engineering, 420 Tenth Street, Second Floor, Columbus, Georgia. Newton County, Georgia and Incorporated Areas Docket No.: FEMA-B-7469 Town Branch (Rogers Branch) Approximately 200 feet upstream of confluence with Dried Indian Creek +662 City of Covington. Approximately 710 feet downstream of Rebecca Street. +662 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Covington Maps are available for inspection at 2194 Emory Street NW, Covington, Georgia. Walker County, Georgia, and Incorporated Areas Docket No.: FEMA-B-7473 Andrews Street Tributary At confluence with Tributary to Chattanooga Creek +690 City of Rossville. Approximately 35 feet upstream of confluence with Tributary to Chattanooga Creek +690 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Rossville, Walker County, Georgia Maps are available for inspection at Rossville City Government, 220 Ellis Road, Rossville, Georgia 30741. Kemper County, Mississippi, and Incorporated Areas Docket No.: FEMA-B-7471 Hull Branch Approximately 10,360 feet upstream of Old Jackson Road +336 Kemper County (Unincorporated Areas). At the confluence of Snoody Creek +383 Okatibbe Creek Approximately 2,340 feet upstream of Bull Swamp Road +374 Kemper County (Unincorporated Areas). At the confluence with Houston Creek +408 Snoody Creek At the confluence with Hull Branch +327 Town of De Kalb. Approximately 2,290 feet downstream of State Road 39 +336 Kemper County (Unincorporated Areas). * National Geodetic Vertical Datum. # Depth in feet above ground. +North American Vertical Datum. ADDRESSES Kemper County (Unincorporated Areas) Maps are available for inspection at Kemper County Courthouse, 100 Main Street, De Kalb, MS 39328. Town of De Kalb Maps are available for inspection at Kemper County Courthouse, 100 Main Street, De Kalb, MS 39328. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: March 16, 2007. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-5613 Filed 3-27-07; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1127; MB Docket No. 03-142; RM-10539] Radio Broadcasting Services; Glen Arbor, MI AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In response to a Petition for Rule Making filed by WKJF Radio, Inc., licensee of Station WJZQ, Channel 225C, Cadillac, Michigan, this document deletes the Channel 227A allotment at Glen Arbor, Michigan, in order to permit WKJF Radio, Inc. to modify the Station WJZQ facilities as set forth in its pending application (File BMLH-20020517AAG). With this action, the proceeding is terminated. DATES: Effective April 23, 2007. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Media Bureau

(202)418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis of the *Report and Order* in MB Docket No. 03-142, adopted March 7, 2007, and released March 9, 2007. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com* . The Commission will send a copy of this *Report and Order* in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Michigan is amended by removing Channel 227A at Glen Arbor. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-5564 Filed 3-27-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1132; MB Docket No. 06-65; RM-11320, RM-11335] Radio Broadcasting Services; Alva, OK; Ashland, Greensburg, and Kinsley, KS; Medford, and Mustang, OK AGENCY: Federal Communications Commission. ACTION: Final rule, dismissal of petition for reconsideration. SUMMARY: This document dismisses a counterproposal, including the allotment of Channel 288C3 at Kinsley, Kansas, and a petition for reconsideration directed to the Report and Order in this proceeding, pursuant to Chisholm's Request for Withdrawal. Although the **Federal Register** Summary added Channel 288C3 at Kinsley, it was never implemented. Nevertheless, we are formally removing Channel 288C3 at Kinsley, Kansas from the FM Table of Allotments because there is no longer any expression of interest in it. FOR FURTHER INFORMATION CONTACT: Helen McLean, Media Bureau,

(202)418-2738. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order* , MB Docket No. 06-65, adopted March 7, 2007, and released March 9, 2007. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com* . The Commission will send a copy of this *Memorandum Opinion and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-5567 Filed 3-27-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1106; MB Docket No. 05-101; RM-11159] Radio Broadcasting Services; Jackson, WY AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division grants a Petition for Rule Making filed by Jackson Hole Community Radio, requesting the allotment of Channel *294C2 at Jackson, Wyoming, and reservation for noncommercial educational use. A staff engineering analysis determines that Channel *294C2 can be allotted at Jackson in compliance with the Commission's minimum distance spacing requirements at reference coordinates 43-28-42 NL and 110-45-42 WL. An objection filed by the University of Wyoming is dismissed. DATES: Effective April 23, 2007. ADDRESSES: Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Report and Order, MB Docket No. 05-101, adopted March 7, 2007, and released March 9, 2007. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Wyoming, is amended by adding Jackson, Channel *294C2. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-5563 Filed 3-27-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1130; MB Docket No. 03-91; RM-10693] Radio Broadcasting Services; Wofford Heights, CA AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document grants a petition filed by Dana J. Puopolo requesting the allotment of Channel 251A at Wofford Heights, California, as its first local aural transmission service. Channel 251A can be allotted consistent with the Commission's minimum spacing requirements, provided there is a site restriction of 12.8 kilometers (7.9 miles) west of Wofford Heights, using reference coordinates 35-43-28 NL and 118-35-42 WL. The site restriction is necessary to prevent short-spacings to the licensed sites of Station KRXV-FM, Channel 251B, Yermo, California and Station KDFO-FM, Channel 253B1, Delano, California. DATES: Effective April 23, 2007. ADDRESSES: Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Rolanda F. Smith, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order* , MB Docket No. 03-91, adopted March 7, 2007, and released March 9, 2007. The *Notice of Proposed Rule Making* proposed the allotment of Channel 251A at Wofford Heights, California. *See* 68 FR 18180, published April 15, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under California, is amended by adding Wofford Heights, California, Channel 251A. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-5565 Filed 3-27-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 061106290-7059-02, I.D. 101706C] RIN 0648-AV01 List of Fisheries for 2007 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Final rule. SUMMARY: The National Marine Fisheries Service

(NMFS)is publishing its final List of Fisheries

(LOF)for 2007, as required by the Marine Mammal Protection Act (MMPA). The final LOF for 2007 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The categorization of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. DATES: This final rule is effective April 27, 2007. The Alaska Cook Inlet set gillnet fishery, Alaska Cook Inlet salmon purse seine fishery, Alaska Kodiak salmon purse seine fishery, California tuna purse seine fishery, Mid-Atlantic mid-water trawl (including pair trawl) fishery, and Mid-Atlantic flynet fishery are considered to be Category II fisheries on April 27, 2007, and are required to comply with all requirements of Category II fisheries (i.e., complying with applicable registration requirements, complying with applicable take reduction plan requirements, and carrying observers, if requested) on that date. ADDRESSES: See SUPPLEMENTARY INFORMATION for a listing of all Regional offices. Written comments regarding the burden-hour estimates or other aspects of the information collection requirements contained in this final rule may be submitted to NMFS, Attn: Patricia Lawson, fax: 301-427-2522 or *Patricia.Lawson@noaa.gov* , or the Office of Management and Budget, Attn: David Rostker, fax: 202-395-7285 or *David_Rostker@omb.eop.gov* . FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9328; Nancy Young, Southeast Region, 727-551-5607; Elizabeth Petras, Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van Atta, Pacific Islands Region, 808-944-2257. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays. SUPPLEMENTARY INFORMATION: Availability of Published Materials Information regarding the LOF and the Marine Mammal Authorization Program, including registration procedures and forms, current and past LOFs, observer requirements, and marine mammal injury/mortality reporting forms and submittal procedures, may be obtained at: *http://www.nmfs.noaa.gov/pr/interactions/mmap* , or from any NMFS Regional Office at the addresses listed below. Regional Offices NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298, Attn: Marcia Hobbs; NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Teletha Mincey; NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Lyle Enriquez; NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, Attn: Permits Office; NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802; or NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani Boulevard, Suite 1100, Honolulu, HI 96814-4700. What is the List of Fisheries? Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Stock Assessment Reports and other relevant sources and publish in the **Federal Register** any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)). How Does NMFS Determine in which Category a Fishery is Placed? The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here. Fishery Classification Criteria The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal

(PBR)level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). *Tier 1:* If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification. *Tier 2, Category I:* Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level. * Tier 2, Category II:* Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level. *Tier 2, Category III:* Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level. While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995). Since fisheries are categorized on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically categorized on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Other Criteria That May Be Considered In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality qualifies for Category II by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2). How Does NMFS Determine which Species or Stocks are Included as Incidentally Killed or Seriously Injured in a Fishery? The LOF includes a list of marine mammal species or stocks incidentally killed or seriously injured in each commercial fishery, based on the level of mortality or serious injury in each fishery relative to the PBR level for each stock. To determine which species or stocks are included as incidentally killed or seriously injured in a fishery, NMFS annually reviews the information presented in the current Marine Mammal Stock Assessment Reports (SARs). The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of mortality or serious injury incidental to commercial fishing operations. NMFS also reviews other sources of new information, including observer data, stranding data and fisher self-reports. In the absence of reliable information on the level of mortality or serious injury of a marine mammal stock, or insufficient observer data, NMFS will determine whether a species or stock should be added to, or deleted from, the list by considering other factors such as: changes in gear types used, increases or decreases in fishing effort, increases or decreases in the level of observer coverage, and/or changes in fishery management that are expected to lead to decreases in interactions with a given marine mammal stock (such as a Fishery Management Plan or a Take Reduction Plan). NMFS will provide case specific justification in the LOF for changes to the list of species or stocks incidentally killed or seriously injured. How do I Determine the Level of Observer Coverage in a Fishery? Data obtained from observers and the level of observer coverage are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. The best available information on the level of observer coverage, and the spatial and temporal distribution of observed marine mammal interactions, is presented in the SARs. Starting in 2005, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Information presented in the SARs' appendices include: level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, gear characteristics, management and regulations, and marine mammal interactions. NMFS refers readers to the SARs for the most current information on the level of observer coverage for each fishery. Copies of the SARs are available on the NMFS Office of Protected Resource's web site at: *http://www.nmfs.noaa.gov/pr/sars/* . Additional information on observer coverage in commercial fisheries can be found on the National Observer Program's web site at: *http://www.st.nmfs.gov/st4/nop/* . How Do I Find Out if a Specific Fishery is in Category I, II, or III? This final rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean. Am I Required to Register Under the MMPA? Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization. How Do I Register? Vessel or gear owners must register with the Marine Mammal Authorization Program

(MMAP)by contacting the relevant NMFS Regional Office (see ADDRESSES ) unless they participate in a fishery that has an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners an authorization certificate. The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). What is the Process for Registering in an Integrated Fishery? For some fisheries, NMFS has integrated the MMPA registration process with existing state and Federal fishery license, registration, or permit systems. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. The following section indicates which fisheries are integrated fisheries and has a summary of the integration process for each Region. Vessel or gear owners who operate in an integrated fishery and have not received an authorization certificate by January 1 of each new year or with renewed state fishing licenses (as in Washington and Oregon) must contact their NMFS Regional Office (see ADDRESSES ). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ). Which Fisheries Have Integrated Registration Programs? The following fisheries have integrated registration programs under the MMPA: 1. All Alaska Category II fisheries; 2. All Washington and Oregon Category II fisheries; 3. Northeast Regional fisheries for which a state or Federal permit is required; 4. All Southeast Regional fisheries for which a Federal permit is required, as well as fisheries permitted by the states of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas; and 5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo,Oceanic Sharks Longline/Set line Fishery. How Do I Renew My Registration Under the MMPA? Vessel or gear owners that participate in fisheries that have integrated registration programs (described above) are automatically renewed and should receive an authorization certificate by January 1 of each new year, with the exception of Washington and Oregon Category II fisheries. Washington and Oregon fishers receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in an integrated fishery and have not received authorization certificates by January 1 or with renewed fishing licenses (Washington and Oregon) must contact the appropriate NMFS Regional Office (see ADDRESSES ). Vessel or gear owners that participate in fisheries that do not have integrated registration programs and that have previously registered in a Category I or II fishery will receive a renewal packet from the appropriate NMFS Regional Office at least 30 days prior to January 1 of each new year. It is the responsibility of the vessel or gear owner in these fisheries to complete their renewal form and return it to the appropriate NMFS Regional Office at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time must request a registration form from the appropriate Regional Office (see ADDRESSES ). Am I Required to Submit Reports When I Injure or Kill a Marine Mammal During the Course of Commercial Fishing Operations? In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported. Injury/mortality report forms and instructions for submitting forms to NMFS can be downloaded from: *http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf* . Reporting requirements and procedures can be found in 50 CFR 229.6. Am I Required to Take an Observer Aboard My Vessel? Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7. Am I Required to Comply With Any Take Reduction Plan Regulations? Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans. Take reduction plan requirements can be found at 50 CFR 229.30-34. Sources of Information Reviewed for the Final 2007 LOF NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the SARs for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS' SARs are based on the best scientific information available at the time of preparation, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups

(SRGs)representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that may not be included in the SARs. The LOF for 2007 was based, among other things, on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 (69 FR 54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, June 20, 2005), the final SARs for 2005 (71 FR 26340, May 4, 2006), and the draft SARs for 2006 (71 FR 42815, July 28. 2006). All SARs are available at: *http://www.nmfs.noaa.gov/pr/sars/* . Comments and Responses NMFS received 9 comment letters on the proposed 2007 LOF (71 FR 70339, December 4, 2006) from environmental, commercial fishing, and Federal and state interests. Comments on issues outside the scope of the LOF were noted, but are not responded to in this final rule. General Comments *Comment 1:* One commenter recommended NMFS continue to support current research efforts, and support and engage in additional research, on depredation and associated fishery interactions. Research should focus on developing means of reducing or controlling depredation rates and minimizing or mitigating any serious injuries or deaths of marine mammals from depredation-related interactions. *Response:* NMFS has supported and will continue to support research efforts intended to better understand the nature of depredation-related interactions, to reduce the risk of serious injury and mortality to marine mammal stocks, and to investigate potential mitigation strategies. Through the Take Reduction Team

(TRT)process, NMFS has developed and implemented successful gear research components to several Take Reduction Plans (TRP). Specifically, NMFS has allocated research funding for several TRPs including the Atlantic Trawl Gear, Atlantic Large Whale, Pelagic Longline, and Bottlenose Dolphin TRPs. The research identified by the respective TRTs allows NMFS to better understand the behavior of several marine mammal species. The recommended research included techniques such as the use of video cameras to document marine mammal interactions with various gear types in hopes of gaining a better understanding of whether these interactions are a result of depredation of the target species by the marine mammals, or other behavioral factors. This knowledge will provide insights into what types of mitigation measures can be implemented in order to minimize the serious injuries and mortalities associated with depredation-related interactions. Various gear modifications are routinely researched to reduce the risk of interactions and serious injury and mortality of marine mammals should an entanglement occur. NMFS also gathers information on marine mammal depredation in fisheries from various sources including, fishery observer records, vessel logbooks, data collected during dockside surveys, independent researchers, State agencies, and the general public. NMFS uses this information to monitor fisheries and evaluate whether action is needed to prevent or limit depredation in order to protect marine mammals. For example, in the past NMFS has participated in a program to conduct research in California, Oregon, and Washington examining pinniped depredation in various fisheries and develop methods to reduce or control the depredation. However, funding for this program was eliminated in 2005 and it is not known if funding will be re-instated in the future. Also, NMFS is currently reviewing the issues related to depredation by false killer whales in the Hawaii-based longline fishery and is supportive of research efforts to reduce false killer whale take. NMFS continues to seek ways to support and participate in research on depredation and the development of deterrent methods, within existing budget constraints. *Comment 2:* One commenter recommended NMFS work with regional Fishery Management Councils to improve monitoring and mitigation of serious injury and mortality rates incidental to trap/pot fisheries. Interactions with trap/pot gear are known to occur. However, the frequency is difficult to quantify because traditional fishery observer programs are unlikely to observe entangled animals, particularly large whales that often carry entangling gear away. In absence of better monitoring, characterization of such problems is often based on anecdotal information. *Response:* NMFS has been often unable to identify lines wrapped on entangled whales conclusively or determine to which specific fishery gear belongs, including whether it is a commercial or recreational fishery. This is particularly difficult for pot gear, when often just a single line or line with an unidentified buoy is found associated with an entangled whale. This information is critically important in assigning fisheries under the LOF, and NMFS will only assign a serious injury or mortality to a specific fishery when gear can be identified to that fishery with a high degree of certainty. NMFS is working to improve the ability to identify such gear found on entangled whales. NMFS agrees that quantifying entanglement rates in the trap/pot fishery would be difficult through an observer program due to the low likelihood of observing an entanglement. However, other means of collecting information on entanglements of marine mammals are also available. For example, information regarding fishery interactions with marine mammals is included in reports by fishermen collected under the Marine Mammal Authorization Program (MMAP), under which all commercial vessel owners or operators, regardless of the category of fishery they participate in, must report all incidental injuries and mortalities of marine mammals. Stranding data is also used to collect information on entanglements. Trap/pot fisheries are of interest based on available information concerning trap/pot gear interactions with large whales in the Atlantic, Pacific, and Alaska, and bottlenose dolphins in the Southeast Atlantic and Gulf of Mexico. In the Atlantic Ocean and Gulf of Mexico, NMFS has funded, and plans to continue to fund based on available resources, several research projects for mitigating blue crab trap/pot interactions with bottlenose dolphins in the Southeast Atlantic and Gulf of Mexico. Many of these projects have been incorporated into non-regulatory components of the Bottlenose Dolphin Take Reduction Plan. NMFS is considering folding trap/pot fisheries into the Atlantic Large Whale Take Reduction Plan (ALWTRP) in an upcoming action. The Atlantic Large Whale Take Reduction Team (ALWTRT) currently emphasizes the incorporation of the regional fishery management councils by asking council representatives to serve as team members. NMFS will raise this issue with council representatives at future meetings to further the discussion. In the Pacific Ocean, NMFS plans to communicate with the Pacific Fisheries Management Council when considering current fishery descriptions for trap/pot fisheries, as well as when assessing potential changes to fishery descriptions to more accurately reflect differences in trap gear fisheries and the likelihood for interactions with marine mammals. In Alaska, a high proportion of all humpback whale entanglements are thought to be from pot gear relative to other fishery sources, while in reality the proportion of entanglements resulting in known serious injuries and mortalities from known or assumed pot gear when compared to serious injury and mortalities from all entanglements is not as high. From 2001 through 2005 there were 40 humpback whale entanglements attributed to commercial or recreational fisheries, and 15 (37.5 percent) of those were thought to be from various pot gear, although that is not conclusive. Of those 40 humpback whale entanglements, 17 (42.5 percent) were serious injuries or mortalities, all attributed to commercial fisheries. Five of the 17 (29 percent) serious injuries or mortalities were thought to be from various pot gear. Therefore, from 2001-2005, 5 of the overall 40 humpback whale entanglements, or 12.5 percent, resulted in serious injuries or mortalities thought to be from various pot gear. Determining whether an entanglement results in a serious injury (one that leads to mortality) is a challenge for NMFS, and an improved approach to this is needed, and the agency is working toward that end. In the Alaska region, NMFS is working to increase public awareness of the dangers to whales of vertical lines in the water column, and is asking for voluntary cooperation to minimize the amount of vertical line in the water column where possible and in marking personal and commercial gear. Working with marine mammal researchers, the fishing industry, and NOAA Sea Grant over the past several years, the Alaska Stranding Program has increased community outreach. Cooperative, ongoing efforts include community meetings, informal working groups, increased disentanglement response training, developing a vessel wheelhouse guide on preventive measures and reporting information, investigating deterrent uses, improved reporting, and acquisition of additional response equipment, including adding a response vessel to the program, and satellite telemetry tags and buoys. Ultimately, the goal is entanglement reduction and prevention. *Comment 3:* One commenter stated that the length of the public comment period (30 days) on the proposed rule does not allow appropriate time for formal review and comment by Fishery Management Councils, protected resources committees, industry advisors, and individuals. *Response:* NMFS believes the 30-day comment period allowed for adequate review and comment on this proposed rule. *Comment 4:* One commenter noted that the categorization of fisheries under the MMPA is not congruent with fishery management units defined under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). Congruency between the definitions under MSFCMA and the categorization of fisheries under the MMPA would facilitate the process of moving towards an ecosystem approach to management, i.e., for the management of fisheries resources and the conservation of marine mammal stocks. *Response:* The MSFCMA defines fishery listings based on fish species and fish stocks, while the MMPA defines fishery listings based on marine mammal stocks and their interactions with fishing gear types. Since multiple fishing gear types are usually covered under each Fishery Management Plan (FMP), categorizing marine mammal interactions with fisheries on an FMP basis is usually not appropriate. To help minimize confusion associated with the different fishery definitions, the agency will continue, as appropriate, to make modest changes to facilitate cooperation with regional Fishery Management Councils (see responses to comments 2 and 3). *Comment 5:* The proposed rule states that less than 360 small entities will be affected by the LOF due to the cost of permits and that no economic costs will be incurred by vessels requested to carry an observer. This evaluation fails to recognize the burden of carrying an observer, especially on smaller fishing vessels that may have to operate with one less crew member to accommodate the observer. This could lead to operational inefficiencies and loss of revenue. *Response:* An Environmental Assessment

(EA)was prepared for the Final 2006 LOF, which included a full Regulatory Impact Review (RIR). The effects on small entities were discussed and analyzed as part of the RIR. Impacts to small entities including the impacts associated with carrying an observer were adequately addressed. A full copy of the December 2005 EA can be obtained at: *http://www.nmfs.noaa.gov/pr/pdfs/interactions/lof_ea.pdf* . In addition, under section 118(d)(6)(B) of the MMPA, NMFS is not required to place an observer on a Category I or II vessel if the facilities for housing the observer or for carrying out observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized (also stated in 50 CFR 229.7(c)(3)). *Comment 6:* NMFS did not provide sufficient notice in the proposed rule to inform fishermen that their fishery is proposed for elevation and the associated more stringent regulations. Also, the holiday season falling within the comment period (December 4, 2006-January 3, 2007) made it difficult to find credible information and to contact agency staff to allow public involvement. *Response:* See Comment Response 3 above. *Comment 7:* One commenter viewed the LOF fishery classification system as inaccurate, under which NMFS is downplaying the highly destructive nature of commercial fisheries. NMFS does not sufficiently monitor these fisheries; therefore, many more fisheries should be classified higher on the LOF to allow for observer coverage. *Response:* NMFS believes that the fishery classification system is accurate. The current fishery classification system, which continues to be widely accepted by the scientific community and the fishing industry, is based on a two-tiered, stock-specific approach that first addresses the total impacts of all fisheries on each marine mammal stock and then addresses the impacts of individual fisheries on each stock. Please see SUPPLEMENTARY INFORMATION for additional information on the classification criteria. NMFS implemented the classification criteria in the final regulations to implement the 1994 amendments to the MMPA (60 FR 45086, August 30, 1995) after ample consider of comments and suggestions from the public. NMFS also finalized an Environmental Assessment

(EA)in August, 1995, to analyze the impacts of the regulations implementing the 1994 amendment on the environment and the public, and finalized a revised EA in December 2005 on the process of classifying U.S. commercial fisheries. To determine whether changes in fishery classification are warranted, NMFS reviews all marine mammal incidental injury and mortality information presented in the Stock Assessment Reports (SARs). NMFS' SARs are based on the best available scientific information available at the time of publication. The SARs are peer-reviewed by regional Scientific Review Groups (SRGs), created by the MMPA to review the science that informs the SARs. NMFS regularly monitors commercial fisheries in the U.S. and reviews data gathered by the National Observer Program, fisher self-reports, stranding data, and other information when categorizing fisheries based on the level of interactions with marine mammals. Category I and II fisheries are required to register with NMFS, to carry NMFS observers if requested, and comply with all applicable take reduction plan regulations. In addition, all fishermen, regardless of the classification of the fishery in which they operate, are required by the MMPA to report, within 48 hours of returning to port, any injury or mortality that occurs incidental to commercial fishing operations. NMFS also reviews other sources of information, such as stranding data, to assess whether elevation of a Category III fishery is warranted, thereby requiring the fishery to carry observers, if requested. *Comment 8:* One commenter reiterated previous letters on the 2005 and 2006 LOFs calling for the inclusion of observer coverage on the LOF. The SARs usually include estimates of observer coverage only for fisheries known to interact with marine mammals, while fisheries for which interactions have not been documented in recent years are not described. Without this information, it is not possible to determine whether a given fishery was adequately observed and no interactions documented, or whether the fishery was not adequately observed and interactions may occur. For this reason, NMFS should describe the level of observer coverage for each fishery on the LOF. *Response:* Including detailed information on the level, or percentage, of observer coverage to each fishery on the LOF will be of limited use without also including the confidence associated with mortality/serious injury estimates generated from observer data. Presenting the level of observer coverage in the LOF without the associated confidence information will likely lead to misinterpretation of the information provided. Information including details of the interaction data, and the Coefficient of Variance

(CV)for stock-specific information, is reported in the SARs. Please also see NMFS' response to a similar comment in the final LOF for 2006 (see Response to Comment 4 in 60 FR 48802, August 22, 2006). NMFS continues to refer readers to the SARs for the most current, peer-reviewed information on observer coverage. Since 2005 each SARs includes an Appendix with Category I and II fishery-specific information, including the level of observer coverage; therefore, this information does not need to be duplicated in the LOF. NMFS is continuing to work to build and improve the fisheries interaction information presented in order to provide a useful source of information for the reader. NMFS will consider this comment when considering improvements to the SARs appendices. The SARs can be accessed through the NMFS Office of Protected Resource's web site at: *http://www.nmfs.noaa.gov/pr.sars/* . Additional information can also be found on the National Observer Program web site at: *http://www.st.nmfs.gov/st4/nop/* . Information beyond stating “interactions have not been documented in recent years” would be useful as further explanation and support for changes in fishery classifications or additions and deletions of stocks from the list of marine mammal species or stocks incidentally killed/injured in a fishery. For this reason, NMFS will present information associated with the level of observer coverage or lack of observer coverage, if available, as part of the justification for proposing changes in future LOFs. *Comment 9:* One commenter reiterated a previous comment made on the 2004 LOF for inclusion of high seas fisheries on the LOF. Multiple high sea fisheries, in which U.S. flagged vessels operate, are known to interact or are likely to interact with marine mammals. Section 118 of the MMPA applies to “commercial fishing operations by persons using vessels of the United States”. Therefore, NMFS failure to include these high seas fisheries is unlawful. Specific fisheries suggested as additions are the Cobb Seamount fishery, Pacific Pelagic Squid Jig fishery, South Pacific Tuna Purse Seine fishery, and fisheries in the area of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) including the Patagonian toothfish longline fishery and a trawl fishery for krill. *Response:* NMFS is currently investigating available information on existing high seas fisheries in which U.S. nationals and flagged vessels participate, the estimated number of vessels/participants in these fisheries, and fishery interactions with marine mammal stocks on the high seas. NMFS will continue its investigation and consider the inclusion of high seas fisheries in future LOFs. Comments on Fisheries in the Pacific Ocean *Comment 10:* One commenter supported the elevation and addition of 3 Alaska fisheries, the AK Cook Inlet salmon set gillnet fishery, AK Cook Inlet salmon purse seine fishery, and AK Kodiak salmon purse seine fishery, to Category II. *Response:* NMFS has added the AK Cook Inlet salmon set gillnet fishery as a Category II, and has elevated the AK Cook Inlet salmon purse seine fishery and the AK Kodiak salmon purse seine fishery to Category II, on the 2007 LOF. *Comment 11:* One commenter stated that NMFS' proposed elevation or addition of 3 Alaska nearshore fisheries, the AK Cook Inlet salmon set gillnet fishery, AK Cook Inlet salmon purse seine fishery, and AK Kodiak salmon purse seine fishery, highlights the importance of monitoring interactions in state-managed fisheries. The Alaska Marine Mammal Observer Program (AMMOP) has not been funded sufficiently or consistently and does not provide an adequate basis for characterizing the full extent of such interactions. NMFS should increase and maintain funding for the AMMOP at levels sufficient for reasonable assessment of marine mammal take levels in AK state-managed fisheries or consider alternative means for assessing take levels and their population impacts. *Response:* The cost of the Alaska Marine Mammal Observer Program is very high, relative to other observer programs around the country, due to the remote nature of the fisheries observed. To offset such high costs, NMFS is investigating alternatives to implementing full observer programs in these fisheries, such as observing focused portions of the fisheries. *Comment 12:* Estimates of abundance and PBR level are not readily available for North Pacific sperm whales. NMFS should develop a scientifically sound estimate of this stock's abundance and PBR level that can be used to evaluate potential fishery impacts. For example, sperm whales are known to depredate on catch in the sablefish longline fishery and at least one serious injury of a sperm whale has been observed, with the current estimate of injury/mortality at 0.45 whales/year. This rate may increase if depredation becomes more widespread. *Response:* At this time, resources are not available to assess the abundance of North Pacific sperm whales in order to calculate a PBR level. *Comment 13:* One commenter recommended NMFS expedite analyses of humpback whale stock structure in the North Pacific and increase efforts to observe entangled and stranded whales in southeastern Alaska to obtain accurate estimates of interactions with trap/pot fisheries. These analyses will better assess the potential impact of fishery interactions on the southeastern AK feeding aggregation of Central North Pacific humpback whales (which NMFS is currently considering designating as a separate stock), considering recent reports of stranded/entangled whales suggest interactions with trap/pot fisheries in southeastern Alaska may be unsustainable. *Response:* The Structure of Populations, Levels of Abundance, and Status of Humpbacks (SPLASH) project collected information on humpback whales throughout the North Pacific. This project has only recently concluded. At this time, NMFS anticipates that some preliminary results may begin to be published in 2008 and may be considered during the preparation of the draft List of Fisheries for 2009. *Comment 14:* One commenter referenced the case of a humpback whale removed from a set gillnet by NMFS personnel in June 2005. Although they were not successful in removing all the webbing, the animal swam away. We are not aware of conclusive information that provides a determination that mortality resulted from this incidental take. *Response:* The Marine Mammal Protection Act

(MMPA)requires that serious injuries and mortalities be included in consideration of the classification of fisheries under the annual List of Fisheries. NMFS has defined serious injury in 50 CFR 229.2 as an injury that is likely to lead to mortality. The agency convened a workshop in April 1997 to develop guidelines for a consistent approach for determining which injuries may be considered serious injuries. Results from that workshop were published as a NOAA Technical Memorandum in 1998 (NMFS-OPR-13, Angliss, R.P., and D.P. DeMaster) and have been incorporated into the annual process of fisheries classification. Current guidelines for making serious injuries determinations for marine mammals injuries resulting from entanglement in fishing gear include consideration of whether the animal's locomotion or feeding is or could be impaired by the entanglement. Information for each humpback whale entanglement in Alaska is reviewed by members of the Alaska Scientific Review Group (SRG), a Congressionally mandated regional advisory board to NMFS made up of marine mammal scientists. The SRG forwards to NMFS recommendations for each entanglement on whether the entanglement is likely to result in a serious injury or not. NMFS makes the final determination for each entanglement, taking into account the SRG's recommendation and the proper application of the serious injury determination guidelines. NMFS anticipates holding a follow-up serious injury workshop in 2007 to update and advance the current guidelines for making serious injury determinations. *Comment 15:* One commenter stated that the population of the Central North Pacific humpback whale stock appears to be increasing. Therefore, the take in the Cook Inlet set gillnet fishery, which is calculated to be 1.55 percent of the stock's PBR, should not trigger changing this fisheries' classification from Category III to Category II. *Response:* There is evidence that the central North Pacific stock of humpback whales is increasing in at least portions of its range, such as in Southeast Alaska. However, it is not clear that this is the case throughout the range of the stock. Further, the results of the recent study of North Pacific humpback whales may indicate that the existing stock structure is incorrect and that smaller stocks may be more appropriate. Given the uncertainty in the rate of increase and stock structure, NMFS will classify this fishery using the classification criteria without adjusting for possible changes in abundance. *Comment 16:* One commenter stated that the area in which the humpback whale take in 2005 occurred in Cook Inlet is remote, and that portion of the fishery is not conducted in the same time, area or methodology as 95 percent of the set gillnet fishery within Cook Inlet. The productivity of this small portion of the fishery is only 1 percent of the targeted sockeye salmon species. There has been no documented incidence with humpback whales in the Central or Northern districts of Upper Cook Inlet through the previous observer program (1999-2000) or in the commercial fishery. Please consider listing Upper and Lower Cook Inlet set gillnet fisheries as separate fisheries on the List of Fisheries. *Response:* NMFS organizes Alaska fisheries under the LOF by target, gear type, and geographic area. Separating the Upper and Lower Cook Inlet set gillnet fisheries into two fisheries on the LOF would not be consist with the scale of identification of other Alaska state and Federal fisheries on the LOF. The Alaska Department of Fish and Game manages the state fisheries at the local scale to achieve the success that they have in maintaining sustainable fish population levels, because salmon fishery management is based in large part on achieving local escapement goals. However, NMFS manages marine mammals by stocks, which generally cover large geographic areas in Alaska. The fisheries within or across those areas are classified under the LOF in order to track the relative impacts of the fisheries on the marine mammal stocks. Because of the large scale of Alaska and the high number of small, local fisheries throughout the state, NMFS believes that the geographic areas and other variables used to identify fisheries under the LOF are comprehensive enough to detect potential concerns with marine mammal-fishery interactions, but not so large that the local source becomes unclear. Under circumstances outlined in the MMPA, when fishery-related serious injuries and mortalities reach a level which trigger the need to institute focused take reduction measures, a finer scale of review is instituted. In such cases, detailed differences in gear, area, timing, effort, and other variables would be taken into account to address specific sources of marine mammal incidental serious injuries and mortalities. *Comment 17:* One commenter noted errors in the number of permits issued in, and management of, the WA/OR purse seine fishery. The proposed rule states that OR and WA issued 26 and 16 permits, respectively, for the 2004 fishery, when the correct number of permits was 20 and 21, respectively. At that time, the OR fishery was a developmental fishery and the WA fishery was an experimental fishery. In 2006 the OR fishery operated as a state run limited entry fishery and WA remained an experimental fishery. *Response:* The commenter is correct. OR and WA issued 20 and 21 permits, respectively, for the WA/OR purse seine fishery in 2004. The figures provided in the proposed rule, 26 permits issued in OR and 16 in WA, were incorrectly associated with the fishery for 2004. In fact, 26 and 16 permits were issued for OR and WA, respectively in 2006. The commenter is also correct that OR become a limited entry fishery in 2006, while WA remained an emerging fishery. *Comment 18:* Two commenters recommended elevating the CA lobster, prawn, shrimp, rock crab, fish pot fishery and the WA/OR/CA crab pot fishery to Category II based on interactions with humpback and gray whales. Interactions with humpback whales off the CA coast are likely to exceed 1 percent of PBR (PBR = 1.9). At least 14 large whales were documented entangled in this gear type from 2000-2005. *Response:* NMFS is aware of interactions between humpback and gray whales and pot and trap gear. The 2005 Pacific SAR indicates that there were six Eastern North Pacific humpback whales observed killed or injured between 1999 and 2003 attributed to unidentified fisheries. This results in a mean annual take of more than 1.2 humpback whales per year, which is greater than 1 percent of this stock's PBR of 2.3. Based upon available data from the California Marine Mammal Stranding Network Database, which is currently being reviewed and updated, five humpbacks were observed entangled in pot or trap gear between 1999 and 2003. Thus NMFS has initiated a review of the trap/pot fisheries to determine whether recategorization of the CA lobster, prawn, shrimp, rock crab, fish pot fishery or the WA/OR/CA crab pot fishery is appropriate. At this time, NMFS has insufficient information on the spatial and temporal distribution on these various fisheries to determine which fisheries may be interacting with marine mammals, particularly humpback whales. Stranding reports from the stranding network are not necessarily a reliable identifier of fishing gear types as it is difficult to distinguish different pot and trap gears from surface observations of line and floats. Therefore, NMFS will work with the States of California, Oregon, and Washington to characterize the state and Federal fisheries that utilize these gear types, and review observed marine mammal entanglement from stranding reports and limited data from observer programs, to determine which pot and trap fisheries are most likely to interact with marine mammals. NMFS will also consider if the current fishery descriptions should be adjusted to more accurately reflect spatial and temporal differences in the various pot and trap gear fisheries, the regulatory authority for the fisheries, and the likelihood of interactions with marine mammals. NMFS will work with the states and the Pacific Fisheries Management Council during this process and make recommendations on fishery recategorizations once sufficient information has been collected and analyzed. *Comment 19:* One commenter recommended NMFS observe the category III CA halibut bottom trawl fishery and reevaluate classification once reliable information on interactions with marine mammals becomes available. This fishery is similar to the WA/OR/CA groundfish trawl fishery, also Category III, which is known to interact with several marine mammal species. *Response:* NMFS is planning to place observers on the CA halibut bottom trawl fishery beginning in 2007. Because this fishery has not been previously observed, NMFS reviewed the bottom trawl groundfish observer data and classified the CA halibut bottom trawl fishery as a Category III fishery based upon the level of interactions with marine mammals and by analogy to the WA/OR/CA groundfish trawl fishery based upon fishing methods and gear used. As of 2006, the State of California requires a license for vessels participating in the previously open-access CA halibut bottom trawl fishery. Thus NMFS will be able to deploy observers in this fleet starting in January 2007. Once the data are collected and analyzed, NMFS will re-evaluate the CA halibut bottom trawl fishery to determine if recategorization on the LOF is appropriate. *Comment 20:* One commenter recommended NMFS reclassify the category I HI swordfish, tuna, billfish, mahi mahi, wahoo, oceanic sharks longline/set line fishery as Category II, given the lack of evidence of geographic isolation or genetic distinction among “stocklet” populations of false killer whales in the U.S. Exclusive Economic Zone

(EEZ)and false killer whales on the high seas, and given the genetic evidence of central and eastern Pacific stock overlap. Genetic samples taken by NMFS observers indicate substantial mixing and genetic overlap between central and eastern Pacific stocks. Therefore, false killer whales that interact with the Hawaii-based longline fisheries are not clearly identifiable as part of the HI EEZ or central Pacific stock. It inappropriate to charge all mortalities or serious injuries by HI-based longline fisheries against a HI EEZ stock when it is clear that some genetic samples of the injured or killed whales cannot be tracked to a genetically distinct HI population. The commenter also noted errors and uncertainties in the false killer whale SARs, which underestimate false killer whale abundance and overestimate the seriousness of the HI longline fishery interactions with this species. NMFS improperly divides the central Pacific false killer whale stock into two stocklets, artificially reducing the abundance numbers against which HI longline fishery interactions are considered. NMFS should also:

(1)base final SAR and LOF decisions on a single, combined central Pacific stock of false killer whales across the HI and Palmyra Atoll EEZs and the central Pacific;

(2)recognize the size of this single false killer whale stock is greater than the sum of the estimated populations of “stocklets” in the HI and Palmyra Atoll EEZs (i.e. >1813 animals);

(3)derive values for minimum false killer whale population estimates and PBR levels based on the combined population numbers in the HI and Palmyra Atoll EEZs and the central Pacific; and

(4)apportion mean annual take estimates attributable to the HI-based longline fisheries between a central and eastern false killer whale stock consistent with ongoing tissue sampling. This approach would result in an overall PBR for the single stock as 10.1 (2.4 for the HI EEZ + 7.7 for the Palmyra Atoll EEZ). With these changes HI-based longline fisheries would be well below 50 percent of PBR, qualifying the fishery for reclassification as a Category II. Also, a Category II classification would not affect the observer program requirements, which are a consequence of Endangered Species Act

(ESA)consultation requirements. *Response:* Genetic analyses of tissue samples collected within the Eastern North Pacific

(ENP)indicate restricted gene flow between false killer whales sampled near the main Hawaiian Islands and false killer whales sampled in all other regions of the ENP (Chivers et al., 2006). False killer whales sampled at Palmyra Atoll appear more closely related to animals sampled in the waters of the pelagic ENP, Panama, and Mexico (Chivers et al., 2006). Thus, false killer whales occurring near Palmyra Atoll may be part of a larger stock covering a broad geographic area within the central and eastern North Pacific. Since 2003, observers of the Hawaii-based longline fishery have also been collecting tissue samples of incidentally caught cetaceans for genetic analysis whenever possible. Four false killer whale samples, two collected outside the Hawaiian EEZ and two collected more than 100 nautical miles from the main Hawaiian Islands, were determined to have ENP-like haplotypes. This suggests that false killer whales within the Hawaiian EEZ belong to two stocks, with a boundary somewhere within the Hawaiian EEZ. Efforts are currently underway to obtain and analyze additional tissue samples of false killer whales for further studies of population structure in the North Pacific Ocean. Therefore, for the MMPA SARs, there are currently two Pacific Island Region management stocks. One includes animals found within the U.S. EEZ of the Hawaiian Islands, the other includes false killer whales found with the U.S. EEZ of Palmyra Atoll. Estimates of abundance, PBR levels, and status determinations are analyzed separately. Abundance estimates are based upon established scientific methods have been peer-reviewed and accepted by the Pacific SRG. The marine mammal stock assessment process under the MMPA was specifically designed to allow for levels of uncertainty similar to those observed for false killer whales. Furthermore, NMFS has previously responded to a similar comment in our List of Fisheries for 2004 (69 FR 48407, August 10, 2004). In our Response to Comment 17 (69 FR 48413), NMFS stated: “The Hawaiian stock of false killer whales is considered a strategic stock under the MMPA because fishery related mortality and serious injury exceeds the PBR level for this stock (see 16 U.S.C. 1362(19)). Genetic analysis of samples from false killer whales in the North Pacific Ocean indicates population structure, but geographic boundaries of the various populations cannot yet be identified. However, the evidence for reproductive isolation and strong genetic differentiation of individuals sampled around Hawaii from individuals sampled in the ETP (Eastern Tropical Pacific) is solid. Furthermore, NMFS' current mortality and serious injury estimates are based only on takes within the U.S. EEZ and compared to PBR levels derived from abundance estimates for waters within the U.S. EEZ. In addition, even if the actual boundaries of the Hawaiian stock of false killer whales extended beyond the EEZ, the strategic status of the stock would not be changed. NMFS' guidelines for preparing marine mammal stock assessment reports contain specific instructions for calculating PBR of trans-boundary stocks. (The guidelines are available in electronic form at *http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm* ). In cases such as false killer whales in the Hawaiian EEZ, where the stock could extend into international waters, the PBR would be based on the abundance of animals within the EEZ. This guideline was established to prevent underestimating the effects of mortality and serious injury incidental to U.S. fisheries in international waters where unknown levels of additional human-caused mortality and serious injury (e.g., incidental to foreign fisheries in the same waters) may also be affecting the stock. NMFS does, however, plan to try to obtain additional genetic samples from a broader geographic range to help define stock boundaries.” Comments on Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean *Comment 21:* Two commenters supported reclassification of the mid-Atlantic mid-water trawl fishery from category I to category II and supported findings that this fishery does not pose a serious risk or contribute to the mortality or serious injury of common dolphins, Western North Atlantic

(WNA)stock, and long- and short-finned pilot whales, WNA stock. One commenter encouraged NMFS to maintain adequate observer coverage to provide robust estimates of mortality and serious injury, particularly to inform the Atlantic Trawl Gear Take Reduction Team (ATGTRT). *Response:* Based on a recommendation made by the ATGTRT (September 2006), NMFS re-evaluated the classification of the mid-Atlantic mid-water trawl fishery as a Category I fishery on the LOF. After conducting a tier analysis, NMFS determined that reclassification as a Category II fishery is warranted. It should be noted that the MMPA establishes a requirement that the level of incidental mortality and serious injury of marine mammals be reduced to insignificant levels approaching a zero rate, commonly referred to as the Zero Mortality Rate Goal (ZMRG). NMFS has established a threshold level for mortality and serious injury to meet the insignificance threshold requirement. NMFS has defined the insignificance threshold as 10 percent of the PBR level for a stock of marine mammals (69 FR 43338, July 20, 2004). Since the mid-Atlantic mid-water trawl fishery is a Category II fishery and the annual mortality and serious injury level is above the insignificance threshold, it remains subject to future TRPs developed by the ATGTRT. NMFS will continue to allocate observer coverage to the maximum extent possible to meet MMPA requirements. NMFS will also try to make the best use of available resources by using existing research programs, programs operated by states or other authorities, or alternative programs where statistically reliable information can be obtained. *Comment 22:* One commenter requested further evidence of additional species being targeted with trap/pot gear in the mid-Atlantic region. It is unclear from the text in the proposed rule (71 FR 70339, December 4, 2006) which species are being added to the list of target species in the Atlantic mixed species trap/pot fishery. *Response:* Clarification on which targeted species are being included in the expansion of species associated with the Atlantic mixed species trap/pot fishery can be found in the proposed 2007 LOF (71 FR 70346, December 4, 2006). NMFS added the category II Atlantic mixed species trap/pot fishery to the 2003 LOF to encompass the Northeast trap/pot fishery, the mid-Atlantic mixed species trap/pot fishery, the U.S. mid-Atlantic and Southeast U.S. Atlantic black sea bass trap/pot fisheries and any other trap/pot fisheries otherwise not identified in the LOF, based on the use of similar gear and the potential for marine mammal entanglements. NMFS has recently become aware of additional species being targeted in this fishery including but not limited to: hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), white hake, spot, skate, catfish and American eel (not included in the LOF's U.S. mid-Atlantic eel trap/pot fishery description) (71 FR 70346, December 4, 2006). Evidence for this decision can be found in the Draft Environmental Impact Statement

(DEIS)for Amending the Large Whale Take Reduction Plan (ALWTRP): Broad-Based Gear Modifications (February 2005), chapter 4 titled “Affected Environment”. This chapter includes the reasoning for why the addition of these fisheries to the Atlantic mixed species trap/pot gear fishery is warranted. *Comment 23:* NMFS used “anecdotal” data to help make a category determination for the Gulf of Maine Atlantic herring purse seine fishery (71 FR 70347, December 4, 2006). NMFS should present the objective criteria used to evaluate the legitimacy of anecdotal data and how such use satisfies the requirements of the Data Quality Act. *Response:* In the 2007 proposed LOF, NMFS proposed to remove the Gulf of Maine/Bay of Fundy stock of harbor porpoises from the list of species or stocks incidentally killed or seriously injured in the Gulf of Maine Atlantic herring purse seine fishery. The rationale for the removal of the harbor porpoise from this list comes from the most recent SAR

(2005)which highlights the most recent 5 years of data (from 1999 2003) as well as anecdotal or historical information, as records of interaction. According to the SAR, there is currently no evidence indicating that harbor porpoises are killed or seriously injured in the Gulf of Maine Atlantic herring purse seine fishery (71 FR 70347, December 4, 2006). The removal of harbor porpoises from the list of species or stocks incidentally killed or injured has not resulted in a change in the category determination for the Gulf of Maine herring purse seine fishery, which is currently classified as a Category III fishery. In order for the agency to determine which species or stocks are included as incidentally killed or seriously injured in a fishery, NMFS reviews the marine mammal incidental serious injury and mortality information presented in the most recent SARs for commercial fishing operations. Historical and/or anecdotal information is presented in the SARs to inform readers about past interactions and takes not observed through the fishery observer program. This information is not factored into the incidental take information that is collected through observer data. SARs are based on the best scientific information available at the time of preparation. The information contained in the SARs is reviewed by regional SRGs who review the science that informs the SARs and advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that may not be included in the SARs (71 FR 70342, December 4, 2006). Information evaluated by NMFS that is disseminated to the public is required to comply with the Information Quality Act. The information used to classify fisheries for the 2007 LOF has undergone a predissemination review and is consistent with Information Quality Act requirements and NOAA guidelines. In the predissemination review, NMFS explains how the contents of the 2007 LOF meet the standards for utility, integrity, and objectivity established in the Information Quality Act and NOAA guidelines. The information in the 2007 LOF meets the standards for utility because it provides current, updated information on marine mammal abundance and serious injury and mortality rates that is beneficial or serviceable to the public and affected fisheries. The information in the 2007 LOF is provided in a publicly accessible and broadly available document, published in the **Federal Register** and available through paper and electronic media, in which the updated information is an improvement over previously available information. The contents of the 2007 LOF meet the standards for integrity because the 2007 LOF adheres to the standards set out in the Computer Security Act and the Government Information Security Reform Act for electronic information disseminated by NOAA. The information in the 2007 LOF also meets the standards for objectivity. The LOF is categorized as a natural resource plan for purposes of Information Quality Act compliance, an information product that is prescribed by law and has content, structure, and public review processes based upon published standards. The 2007 LOF meets the standards for objectivity because it is published in compliance with the requirements of the MMPA, National Environmental Policy Act, Endangered Species Act, Coastal Zone Management Act, Administrative Procedures Act, Paperwork Reduction Act, and Executive Orders 13132 and 12866. The 2007 LOF is supported by the best available information, which has been reviewed by independent technically qualified individuals (i.e., SRG members) to ensure that the information is valid, complete, unbiased, and relevant. The peer review process of evaluating the SARs through the SRG allows the agency to maximize the objectivity and utility of the information the SARs promote. *Comment 24:* One commenter supported the removal of superscript ( 1 ) from bottlenose dolphin

(WNA)and minke whale (Canadian east coast) under the mid-Atlantic gillnet fishery. *Response:* The superscript ( 1 ) next to the offshore bottlenose dolphins and minke whale stocks be removed under the mid-Atlantic gillnet fishery. The superscript ( 1 ) was defined to denote if a stock was responsible for a current fishery's classification (71 FR 70347, December 4, 2006). The tier analysis conducted in 1996 that drove classification of the mid-Atlantic gillnet fishery from category III to category II focused on the incidental mortality and serious injury for harbor porpoise, coastal bottlenose dolphin, and humpback whales (60 FR 67081, December 28, 1995). For reclassification to a category I fishery, the tier analysis was based on coastal bottlenose dolphins (68 FR 1422, January 10, 2003). Though offshore bottlenose dolphins and minke whales have the potential to interact with the mid-Atlantic gillnet fishery, these species have not influenced the fishery classification or its elevation; therefore, the superscript

(1)has been removed. *Comment 25:* Two commenters viewed the category I Mid-Atlantic gillnet fishery as too broad in classification. The definition encompasses a large range of mesh sizes, areas, and gear deployments (sink and anchored gillnet, drift net, stab net, etc). This fishery should be stratified, perhaps by mesh size or target species. Stratification would allow for more precise estimation of marine mammal interactions by gear type and species targeted. One commenter specifically recommended separating the bluefish and croaker portions from the generic mid-Atlantic gillnet fishery and re-designating each as either Category II or III. These fisheries have developed into two separate and distinct directed fisheries that are proven to pose little or no threat to marine mammals. The commenter reiterated a previous request that NMFS perform a separate Tier Analysis for both the bluefish and croaker portions of the mid-Atlantic gillnet fishery. *Response:* NMFS acknowledges the information provided by the commenters on the potential for subdivisions within this fishery. Typically NMFS has bundled different targeted species into groups based on similar fishery characteristics unless there is information on marine mammal interaction rates or fishery operation to warrant a separate listing (see response to comment 4). Based on the best available (peer reviewed) information, NMFS does not find it appropriate to subdivide the bluefish and/or croaker mid-Atlantic gillnet fisheries at this time. The information currently available on the composition and distribution of the mid-Atlantic gillnet fishery and its incidental take levels is insufficient to identify distinct subcomponents of this fishery based on mesh size, area, or type of gear deployment. NMFS will investigate whether or not evidence exists to separate the bluefish and croaker portions of the mid-Atlantic gillnet fishery based on the criteria addressed above. If a reclassification is warranted, NMFS will propose these changes in a future LOF. *Comment 26:* One commenter supported the addition of the mid-Atlantic flynet fishery as a Category II and encouraged NMFS to place observers aboard vessels in this fishery to obtain the necessary information to assess the frequency of interactions. *Response:* The mid-Atlantic flynet fishery has been observed opportunistically out of Wanchese, NC. During observed trips, no marine mammal takes were observed. Since this is a Category II fishery, NMFS may place observers in the fishery to further assess the frequency of marine mammal interactions; however, initiation of observer coverage is dependent on resources. NMFS also notes that self-reporting of injuries and mortalities of marine mammals by fishers is required by the MMPA. For this purpose, NMFS developed the MMAP Mortality/Injury Report Form, which is available at: *http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reportin_form.pdf* *Comment 27:* One commenter requested further information and description of the specific gear types used to list the mid-Atlantic flynet fishery as a category II by analogy with other category II bottom trawl fisheries. *Response:* The flynet fishery was listed as a Category II fishery because of its similarities to other Category II bottom trawl fisheries in terms of gear configuration, seasons and areas fished, and target species. As described in the proposed rule, flynets are high profile trawls similar to bottom otter trawls, except that they fish just off the bottom, rather than on the bottom. Fishermen use flynets to target summer flounder, croaker, and weakfish in waters off North Carolina from October through April. The flynet fishery is analogous to the Category II mid-Atlantic bottom trawl fishery, which, as defined in the LOF, includes any bottom trawl gear targeting a wide range of species, including, but not limited to, monkfish, summer flounder (fluke), winter flounder, silver hake (whiting), spiny dogfish, smooth dogfish, scup, black sea bass, bluefish, and croaker. This fishery operates year-round from Cape Cod, MA to Cape Hatteras, NC. Because of the similarities between these two fisheries, they present a similar risk of serious injury and mortality to marine mammals; therefore, the mid-Atlantic flynet fishery warrants a Category II classification. *Comment 28:* One commenter stated that several fisheries in the Gulf of Mexico are known to injure and kill marine mammals, particularly bottlenose dolphins. The commenter raised concern in previous letters from 2003, 2004, 2005, and 2006, about the uncertainties of interactions with Gulf of Mexico fisheries (in particular the Gulf of Mexico blue crab trap/pot fishery and the Gulf of Mexico menhaden purse seine fishery) and the unreliable information about bottlenose dolphin stock structure in the Gulf of Mexico. Since there is no evidence that research on bottlenose dolphin stock structure will take place in the near future, NMFS should expand its efforts to collect reliable information on interaction rates of marine mammals incidental to Gulf of Mexico fisheries, with priority given to an observer program for the Gulf of Mexico blue crab/trap pot fishery and the Gulf of Mexico menhaden purse seine fishery. *Response:* Investigating bottlenose dolphin stock structure in the Gulf of Mexico is a high priority for NMFS, and efforts to update abundance estimates are underway. For northern Gulf of Mexico coastal stocks, aerial surveys began in January 2007 for the northern and eastern stocks from the mouth of the Mississippi River Delta to Key West, Florida. At least two abundance estimates per year are planned for the Bays, Sounds, and Estuarine stocks for the northern Gulf of Mexico. Additionally, a ship survey that will include the northern Gulf of Mexico continental shelf stock is being planned for the summer of 2007. More information is needed on interactions rates with marine mammals in the Gulf of Mexico menhaden purse seine fishery. NMFS recently elevated this fishery to Category II based on documented serious injury and mortality to bottlenose dolphins. Because this is a Category II fishery, NMFS may place observers in the fishery to better assess the frequency of marine mammal interactions. While this fishery is a high priority for observer coverage, initiation of observer coverage is dependent on resources. NMFS will continue to monitor blue crab fishing effort in the Gulf of Mexico and evaluate bottlenose dolphin strandings for evidence of trap/pot-related fishery interactions to determine the need for future reclassification of the fishery. NMFS has made efforts to train stranding responders in assessing and better documenting human interactions, and will continue efforts to work with the Gulf of Mexico Marine Fisheries Commission on outreach and derelict crab trap removals to reduce the risk of trap/pot interactions with marine mammals. *Comment 29:* Two commenters recommended NMFS elevate the Gulf of Mexico blue crab trap/pot fishery to Category II based on the level of bottlenose dolphin mortality and serious injury obtained from available stranding data. The commenters also recommended NMFS elevate the Gulf of Mexico menhaden purse seine fishery to Category I. One commenter previously commented on the classification of these fisheries and the need for an observer program to obtain more reliable information about bottlenose stock structure and interactions with fisheries in the Gulf of Mexico in letters from 2003, 2004, 2005, and 2006. *Response:* More information is needed on interaction rates with marine mammals in the Gulf of Mexico menhaden purse seine fishery, as well as an increased understanding of stock structure of bottlenose dolphins in this area. NMFS recently elevated this fishery to a Category II based on documented serious injury and mortality to bottlenose dolphins, thus, NMFS may place observers in the fishery to better assess the frequency of marine mammal interactions. At this time, NMFS believes that more information is needed prior to considering elevating this fishery to Category I. *Comment 30:* One commenter recommended that NMFS elevate the Gulf of Mexico gillnet fishery to Category I. *Response:* At this time, there is no evidence to support a Category I classification for the Gulf of Mexico gillnet fishery. This fishery is currently listed as a Category II based on analysis of bottlenose dolphin stranding data. NMFS will continue to monitor fishing effort and evaluate bottlenose dolphin strandings for evidence of gillnet-related fishery interactions in the Gulf of Mexico to determine the need for future reclassification of this fishery. As with other Gulf of Mexico fisheries interacting with bottlenose dolphins, this fishery is a high priority for observer coverage, but initiation of coverage is dependent on resources. *Comment 31:* One commenter recommended NMFS elevate the Caribbean gillnet fishery to Category I because it is known to injure or kill Antillean manatees, a highly endangered species. Therefore, any mortality or serious injury results in levels above 50 percent of PBR. *Response:* NMFS discussed this comment with the U.S. Fish and Wildlife Service (USFWS), the agency with responsibility for the Antillean manatee stock of the West Indian Manatee. The USFWS is unsure of the source of information used by the commenter to support the statement that the Caribbean gillnet fishery is “known to injure or kill Antillean manatees”. The commenter may have referenced the USFWS SAR for the Antillean stock of the West Indian Manatee. This SAR expresses concern for the status of the Antillean manatee as it relates to local fisheries. This SAR was written in 1995 and was reflective of the best available information present at that time. The USFWS has not updated this SAR since it was originally written. Pursuant to publication of the USFWS' forthcoming “Five-year Status Review of the West Indian Manatee” in 2007, which indicates that the status of manatees within this region is improving, the USFWS plans to update and revise the SAR for this stock. The revised SAR will incorporate the best currently available information and should address concerns that may be expressed regarding the impact of this fishery on the Antillean manatee. The USFWS reviewed its records pertaining to the Antillean manatee within its range in Puerto Rico and the U.S. Virgin Islands. The latest mortality information from the region indicates that no mortalities or injuries from a historical fishery for manatees have been observed since 1995. These records also document a single manatee death attributed to an incidental entanglement in a gillnet over the same period of time. Therefore, elevation of the Caribbean gillnet fishery is not warranted at this time based on the low level of fisheries-related interactions over the past 12 years, combined with recent information suggesting that the status of manatees within this region is improving. Summary of Changes to the LOF for 2007 The following summarizes changes to the LOF for 2007 in fishery classification, fisheries listed on the LOF, the number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery. The placement and definition of U.S. commercial fisheries for 2007 are identical to those provided in the LOF for 2006 with the following exceptions. Commercial Fisheries in the Pacific Ocean Fishery Classification The “AK Cook Inlet salmon set gillnet fishery” is elevated from Category III to Category II. Addition of Fisheries to the LOF The “WA, OR sardine purse seine fishery” is added to the LOF as a Category III fishery. The “CA halibut bottom trawl fishery” is added to the LOF as a Category III fishery. The “CA tuna purse seine fishery” is added to the LOF as a Category II fishery. The “AK Cook Inlet salmon purse seine fishery” is added to the LOF as a Category II fishery. The “AK Kodiak salmon purse seine fishery” is added to the LOF as a Category II fishery. Removal of Fisheries from the LOF The “CA sardine purse seine fishery” is removed from the LOF. The “CA herring purse seine fishery” is removed from the LOF. Fishery Name and Organizational Changes and Clarifications The definition of superscript ( 1 )in “Table 1- List of Fisheries Commercial Fisheries in the Pacific Ocean” is modified from ”... 1 ...greater than 1 percent, but less than 50 percent of the stock's PBR” to read ”... 1 ...greater than 1 percent of the stock's PBR.” The “Hawaii gillnet fishery” is renamed the “Hawaii inshore gillnet fishery”. The “Hawaii purse seine fishery” is renamed the “Hawaii inshore purse seine fishery”. The “CA yellowtail, barracuda, white seabass, and tuna drift gillnet (mesh size >3.5 inches and <14 inches) fishery” is renamed the “CA yellowtail, barracuda, and white seabass drift gillnet (mesh size >3.5 inches and <14 inches) fishery”. The “CA anchovy, mackerel, tuna purse seine fishery” and the “CA sardine purse seine fishery” are reorganized by switching the sardine and tuna portions of the fisheries. The end result is the “CA anchovy, mackerel, sardine purse seine fishery” and the “CA tuna purse seine fishery”. Number of Vessels/Persons The estimated number of participants in the “Commonwealth of Northern Mariana Islands tuna troll fishery” is updated to 88. The estimated number of participants in the “Guam tuna troll fishery” is updated to 401. The estimated number of participants in the “American Samoa longline fishery” is updated to 60. The estimated number of participants in the “Guam bottomfish fishery” is updated to 200. The estimated number of participants in the “HI Main Hawaiian Islands, Northwestern Hawaiian Islands deepsea bottomfish fishery” is updated to 300. The waters surrounding the Northwestern Hawaiian Islands (NWHI), out to a distance of approximately 50 nmi from the islands, have been designated as part of the P pahanaumoku kea Marine National Monument by Proclamation 8031 (June 15, 2006). Proclamation 8031 limits the number of bottomfish fishery participants in the Monument to 8 commercial fishermen permitted at the time of designation to fish for certain species within particular zones in the Monument. These 8 permittees are authorized to continue fishing in the Monument until June 15, 2011. List of Species That are Incidentally Killed or Injured The CA/OR/WA stocks of Baird's beaked whale, Cuvier's beaked whale, Mesoplodont beaked whale, pygmy sperm whale, and striped dolphin, the CA/OR/WA offshore stock of bottlenose dolphin, the Eastern North Pacific offshore stock of killer whale, the San Miguel Island stock of northern fur seal, and the Eastern U.S. stock of Steller sea lion are removed from the list of marine mammal species and stocks incidentally killed or injured by the “CA/OR swordfish/thresher shark drift gillnet fishery”. Also, the humpback whale stock from the list of marine mammal species and stocks incidentally injured or killed is changed from CA/OR/WA-Mexico to Eastern North Pacific. The Eastern North Pacific stocks of humpback whale and gray whale, and the CA stock of harbor seal are added to the list of marine mammal species and stocks incidentally killed or injured in the “CA lobster, prawn, shrimp, rock crab, fish pot fishery”. The Eastern North Pacific stock of humpback whale is added to the list of marine mammal species and stocks incidentally killed or injured in the “WA, OR, CA crab pot fishery”. Technical Corrections The proposed LOF for 2007 contained multiple errors in Table 1, “List of Fisheries Commercial Fisheries in the Pacific Ocean”, due to technical difficulties in merging the proposed 2007 LOF document between computers for printing in the **Federal Register** . These errors have been corrected in this final rule. Errors corrected in Table 1, in addition to general formatting errors, include: Addition of the “AK Cook Inlet salmon purse seine fishery” as Category II. The text of the proposed rule proposed to add this fishery, but the addition was not reflected in Table 1. Correction to the number of participants in the “American Samoa tuna troll fishery” from >50 to <50. The 2007 LOF did not propose to change the number of participants in this fishery; therefore, the change in the table was incorrect. Addition of the South Central Alaska stock of sea otters to the list of marine mammal species or stocks incidentally killed or injured in the “AK Prince William Sound salmon drift gillnet fishery”. The deletion of this stock from Table 1 was incorrect. This stock remains a stock that is incidentally killed or injured in this fishery. Deletion of common dolphin, stock unknown, from the list of marine mammal species or stocks incidentally killed or injured in the “CA tuna purse seine fishery”. There are no documented takes of any marine mammal species or stocks in this fishery. Correction to the name change of the “CA anchovy, mackerel, sardine purse seine fishery”. This change was discussed in the text of the proposed rule but was not reflected in Table 1. Correction of the number of participants in the “CA anchovy, mackerel, sardine purse seine fishery”. Table 1 should read 100 participants, not 110 participants. Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean Fishery Classification The “Mid-Atlantic mid-water trawl (including pair trawl) fishery” is recategorized from Category I to Category II. Addition of Fisheries to the LOF The “Mid-Atlantic flynet fishery” is added to the LOF as a Category II. Fishery Name and Organizational Changes and Clarifications The definition of superscript ( 1 )in Table 2, “List of Fisheries Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean” is modified from ”... 1 ...greater than 1 percent, but less than 50 percent of the stocks PBR” to read ”... 1 ...greater than 1 percent of the stock's PBR.” The definition of the “Southeastern U.S. Atlantic shark gillnet fishery” is clarified to include fishermen using gillnets set in a sink, stab, set, strike, or drift fashion to target sharks. The definition of the “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery” is clarified to include fishermen using pelagic longlines to target or land dolphin and wahoo. The language defining the “Northeast sink gillnet fishery”, the “Northeast anchored float gillnet fishery”, and the “Northeast drift gillnet fishery” is changed by removing ”...from the Maine/Canada border through the waters east of 72° 30′ W...” (62 FR 33, January 2, 1997) from all three fisheries descriptions and replacing this with ”...from the U.S./Canada border to Long Island, NY, at 72° 30′ W. long. south to 36° 33.03′ N. lat. and east to the eastern edge of the EEZ...”. The list of target species associated with the “Northeast sink gillnet fishery” is expanded to include, but not be limited to: all species defined in the Northeast Multispecies FMP (American plaice, Atlantic cod, Atlantic halibut, haddock, ocean pout, offshore hake, pollock, red hake [ling], redfish, silver hake [whiting], white hake, windowpane flounder, winter flounder, witch flounder and yellowtail flounder), spiny dogfish, monkfish, shad, skate and mackerel. The list of target species associated with the “Northeast anchored float gillnet fishery” is expanded to include, but not be limited to: shad, herring, mackerel and menhaden. The list of target species associated with the “Northeast drift gillnet fishery” is expanded to include, but not be limited to: shad, herring, mackerel and menhaden. The list of target species associated with the “Mid-Atlantic gillnet fishery” is expanded to include, but not be limited to: Atlantic croaker, mackerel, black drum, bluefish, herring, menhaden, scup, shad, striped bass, weakfish, white perch, yellow perch, shark (large and small coastal shark, dogfish), and monkfish, spot, and skate. Spot and skate were inadvertently deleted from the list of targets species in the proposed 2007 LOF. Spot and skate are targets species in this fishery and are added to the list of target species in the final 2007 LOF. The type of gear associated with the “Mid-Atlantic gillnet fishery” is expanded to include gillnets set in a sink, stab, set, strike, or drift fashion, and any residual large pelagic driftnet effort in the mid-Atlantic. The language defining the “Mid-Atlantic gillnet fishery” is changed by removing ”...west of 72° 30′ W. and north of a line extending due east from the North Carolina/South Carolina border...” (62 FR 33, January 2, 1997) and replacing this with ”...west of a line drawn at 72° 30′ W. long south to 36° 33.03′ N. lat. and east to the eastern edge of the EEZ and north of the North Carolina/South Carolina border...”. NMFS clarifies in this final rule that the trap/pot effort targeting stone crab off Georgia is part of the Category II “Atlantic Mixed Species Trap/Pot Fishery”, which includes all trap/pot operations for species other than American lobster and blue crab from the Maine/Canada border through the waters east of the fishery management demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105). After the comment period for the proposed 2007 LOF closed, NMFS became aware of emerging pot fishery for stone crab operating in an area off Georgia not previously known to sustain a directed stone crab fishery. Stone crab pot fishing off Georgia is not considered part of the Category III “Southeastern US Atlantic, Gulf of Mexico Stone Crab Trap/Pot Fishery” because that fishery is tied to the Gulf of Mexico Stone Crab FMP, which only includes south Atlantic waters as far north as Miami. Therefore, NMFS clarifies that the list of target species associated with the “Atlantic mixed species trap/pot fishery” is expanded to include, but not be limited to: hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), white hake, spot, skate, catfish and American eel (not included in the LOF's “U.S. mid-Atlantic eel trap/pot fishery” description), and stone crab. Number of Vessels/Persons The number of participants in the “Southeastern U.S. Atlantic shark gillnet fishery” is updated to 30. The number of participants in the “Mid-Atlantic gillnet fishery” is updated to >670. List of Species That are Incidentally Killed or Injured The superscript ( 1 ) is removed from the Western North Atlantic stocks of common dolphins, long-finned pilot whales, and short-finned pilot whales under the “Mid-Atlantic mid-water trawl (including pair trawl) fishery” in Table 2. The Western North Atlantic stock of Northern bottlenose whales is added to the list of species and stocks incidentally killed or injured in the “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery”. The Gulf of Maine/Bay of Fundy stock of harbor porpoise is removed from the list of species or stocks incidentally killed or injured in the “Mid-Atlantic haul/beach seine fishery”. The Gulf of Maine/Bay of Fundy stock of harbor porpoise is removed from the list of species or stocks incidentally killed or injured in the “Gulf of Maine Atlantic herring purse seine fishery”. The superscript ( 1 ) is removed from the Western North Atlantic offshore stock of bottlenose dolphin and the Canadian east coast stock of minke whale under the “Mid-Atlantic gillnet fishery” in Table 2. To correct a typographical error, the superscript

(1)is removed from the Western North Atlantic stock of harp seals under the “Northeast bottom trawl fishery” in Table 2. Technical Corrections The proposed LOF for 2007 contained multiple formatting errors and one substantive error in Table 2, “List of Fisheries Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean”, due to technical difficulties in merging the proposed 2007 LOF document between computers for printing in the **Federal Register** . These errors have been corrected in Table 2 of this final rule. The substantive error corrected removed the superscript

(1)from the Western North Atlantic stock of harp seal from the “Northeast bottom trawl fishery”, which was discussed in the text of the proposed 2007 LOF but was not reflected in Table 2 of the proposed rule. The superscript

(1)has been removed from Table 2 in this final rule. List of Fisheries The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants in a fishery, the number from the most recent LOF is used. The tables also list the marine mammal species and stocks incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience mortality or injury in a given fishery, but also includes species or stocks for which there are anecdotal records of interaction. Additionally, species identified by logbook entries may not be verified. Not all species or stocks identified are the reason for a fishery's placement in a given category. NMFS has designated those stocks that are responsible for a current fishery's classification by a “ 1 ”. There are several fisheries classified in Category II that have no recently documented interactions with marine mammals, or interactions that did not result in a serious injury or mortality. Justifications for placement of these fisheries, which are greater than 1 percent of a stock's PBR level, are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2. NMFS has designated those fisheries originally listed by analogy in Tables 1 and 2 by a “ 2 ” after the fishery's name. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean. Table 1 - List of Fisheries Commercial Fisheries in the Pacific Ocean Fishery Description Estimated # of vessels/persons Marine mammal species and stocks incidentally killed/injured Category I GILLNET FISHERIES: CA angel shark/halibut and other species set gillnet(> 3.5 in. mesh) 58 California sea lion, U.S. Harbor seal, CA Harbor porpoise, Central CA 1 Long-beaked common dolphin, CA Northern elephant seal, CA breeding Sea otter, CA Short-beaked common dolphin, CA/OR/WA CA/OR thresher shark/swordfish drift gillnet (≥ 14 in. mesh) 85 California sea lion, U.S. Dall's porpoise, CA/OR/WA Fin whale, CA/OR/WA Gray whale, Eastern North Pacific Humpback whale, Eastern North Pacific Long-beaked common dolphin, CA Northern elephant seal, CA breeding Northern right-whale dolphin, CA/OR/WA Pacific white-sided dolphin, CA/OR/WA Risso's dolphin, CA/OR/WA Short-beaked common dolphin, CA/OR/WA Short-finned pilot whale, CA/OR/WA 1 Sperm whale, CA/OR/WA LONGLINE/SET LINE FISHERIES: HI swordfish, tuna, billfish, mahi mahi, wahoo, oceanic sharks longline/set line 140 Blainville's beaked whale, HI Bottlenose dolphin, HI False killer whale, HI 1 Humpback whale, Central North Pacific Pantropical spotted dolphin, HI Risso's dolphin, HI Short-finned pilot whale, HI Spinner dolphin, HI Sperm whale, HI Category II GILLNET FISHERIES: AK Bristol Bay salmon drift gillnet 2 1,903 Beluga whale, Bristol Bay Gray whale, Eastern North Pacific Harbor seal, Bering Sea Northern fur seal, Eastern Pacific Pacific white-sided dolphin, North Pacific Spotted seal, AK Steller sea lion, Western U.S. 1 AK Bristol Bay salmon set gillnet 2 1,014 Beluga whale, Bristol Bay Gray whale, Eastern North Pacific Harbor seal, Bering Sea Northern fur seal, Eastern Pacific Spotted seal, AK AK Cook Inlet salmon set gillnet 745 Beluga whale, Cook Inlet Dall's porpoise, AK Harbor porpoise, GOA Harbor seal, GOA Humpback whale, Central North Pacific 1 Steller sea lion, Western U.S. AK Cook Inlet salmon drift gillnet 576 Beluga whale, Cook Inlet Dall's porpoise, AK Harbor porpoise, GOA 1 Harbor seal, GOA Steller sea lion, Western U.S. AK Kodiak salmon set gillnet 188 Harbor porpoise, GOA 1 Harbor seal, GOA Sea otter, Southwest AK Steller sea lion, Western U.S. AK Metlakatla/Annette Island salmon drift gillnet 2 60 None documented AK Peninsula/Aleutian Islands salmon drift gillnet 2 164 Dall's porpoise, AK Harbor porpoise, GOA Harbor seal, GOA Northern fur seal, Eastern Pacific AK Peninsula/Aleutian Islands salmon set gillnet 2 116 Harbor porpoise, Bering Sea Steller sea lion, Western U.S. AK Prince William Sound salmon drift gillnet 541 Dall's porpoise, AK Harbor porpoise, GOA 1 Harbor seal, GOA Northern fur seal, Eastern Pacific Pacific white-sided dolphin, North Pacific Sea Otter, South Central AK Steller sea lion, Western U.S. 1 AK Southeast salmon drift gillnet 481 Dall's porpoise, AK Harbor porpoise, Southeast AK Harbor seal, Southeast AK Humpback whale, Central North Pacific 1 Pacific white-sided dolphin, North Pacific Steller sea lion, Eastern U.S. AK Yakutat salmon set gillnet 2 170 Gray whale, Eastern North Pacific Harbor seal, Southeast AK Humpback whale, Central North Pacific (Southeast AK) CA yellowtail, barracuda, and white seabass drift gillnet fishery (mesh size > 3.5 inches and < 14 inches) 2 24 California sea lion, U.S. Long-beaked common dolphin, CA Short-beaked common dolphin, CA/OR/WA WA Puget Sound Region salmon drift gillnet (includes all inland waters south of US-Canada border and eastward of the Bonilla-Tatoosh line-Treaty Indian fishing is excluded) 210 Dall's porpoise, CA/OR/WA Harbor porpoise, inland WA 1 Harbor seal, WA inland PURSE SEINE FISHERIES: AK Southeast salmon purse seine 416 Humpback whale, Central North Pacific 1 AK Cook Inlet salmon purse seine 82 Humpback whale, Central North Pacific 1 AK Kodiak salmon purse seine 370 Humpback whale, Central North Pacific 1 CA anchovy, mackerel,sardine purse seine 100 Bottlenose dolphin, CA/OR/WA offshore 1 California sea lion, U.S. Harbor seal, CA CA squid purse seine 65 Common dolphin, unknown Short-finned pilot whale, CA/OR/WA 1 CA tuna purse seine 2 None documented TRAWL FISHERIES: AK Bering Sea, Aleutian Islands flatfish trawl 26 Bearded seal, AK Harbor porpoise, Bering Sea Harbor seal, Bering Sea Killer whale, AK resident 1 Northern fur seal, Eastern North Pacific Spotted seal, AK Steller sea lion, Western U.S. 1 Walrus, AK AK Bering Sea, Aleutian Islands pollock trawl 120 Dall's porpoise, AK Harbor seal, AK Humpback whale, Central North Pacific 1 Humpback whale, Western North Pacific 1 Killer whale, Eastern North Pacific, GOA, Aleutian Islands, and Bering Sea transient 1 Minke whale, AK Ribbon seal, AK Spotted seal, AK Steller sea lion, Western U.S. 1 LONGLINE/SET LINE FISHERIES: AK Bering Sea, Aleutian Islands Pacific cod longline 114 Killer whale, AK resident 1 Killer whale, Eastern North Pacific, GOA, Aleutian Islands, and Bering Sea transient 1 Ribbon seal, AK Steller sea lion, Western U.S. CA pelagic longline 2 6 California sea lion, U.S. Risso's dolphin, CA/OR/WA OR swordfish floating longline 2 0 None documented OR blue shark floating longline 2 1 None documented POT, RING NET, AND TRAP FISHERIES: AK Bering Sea sablefish pot 6 Humpback whale, Central North Pacific 1 Humpback whale, Western North Pacific 1 Category III GILLNET FISHERIES: AK Kuskokwim, Yukon, Norton Sound, Kotzebue salmon gillnet 1,922 Harbor porpoise, Bering Sea AK miscellaneous finfish set gillnet 3 Steller sea lion, Western U.S. AK Prince William Sound salmon set gillnet 30 Harbor seal, GOA Steller sea lion, Western U.S. AK roe herring and food/bait herring gillnet 2,034 None documented CA set and drift gillnet fisheries that use a stretched mesh size of 3.5 in or less 341 None documented Hawaii inshore gillnet 35 Bottlenose dolphin, HI Spinner dolphin, HI WA Grays Harbor salmon drift gillnet (excluding treaty Tribal fishing) 24 Harbor seal, OR/WA coast WA, OR herring, smelt, shad, sturgeon, bottom fish, mullet, perch, rockfish gillnet 913 None documented WA, OR lower Columbia River (includes tributaries) drift gillnet 110 California sea lion, U.S. Harbor seal OR/WA coast WA Willapa Bay drift gillnet 82 Harbor seal, OR/WA coast Northern elephant seal, CA breeding PURSE SEINE, BEACH SEINE, ROUND HAUL AND THROW NET FISHERIES: AK Metlakatla salmon purse seine 10 None documented AK miscellaneous finfish beach seine 1 None documented AK miscellaneous finfish purse seine 3 None documented AK octopus/squid purse seine 2 None documented AK roe herring and food/bait herring beach seine 8 None documented AK roe herring and food/bait herring purse seine 624 None documented AK salmon beach seine 34 None documented AK salmon purse seine (except Southeast Alaska, which is in Category II) 953 Harbor seal, GOA WA, OR sardine purse seine 42 None documented HI Kona crab loop net 42 None documented HI opelu/akule net 12 None documented HI inshore purse seine 23 None documented HI throw net, cast net 14 None documented WA (all species) beach seine or drag seine 235 None documented WA, OR herring, smelt, squid purse seine or lampara 130 None documented WA salmon purse seine 440 None documented WA salmon reef net 53 None documented DIP NET FISHERIES: CA squid dip net 115 None documented WA, OR smelt, herring dip net 119 None documented MARINE AQUACULTURE FISHERIES: CA marine shellfish aquaculture unknown None documented CA salmon enhancement rearing pen >1 None documented CA white seabass enhancement net pens 13 California sea lion, U.S. HI offshore pen culture 2 None documented OR salmon ranch 1 None documented WA, OR salmon net pens 14 California sea lion, U.S. Harbor seal, WA inland waters TROLL FISHERIES: AK North Pacific halibut, AK bottom fish, WA, OR, CA albacore, groundfish, bottom fish, CA halibut non-salmonid troll fisheries 1,530 (330 AK) None documented AK salmon troll 2,335 Steller sea lion, Eastern U.S. Steller sea lion, Western U.S. American Samoa tuna troll < 50 None documented CA/OR/WA salmon troll 4,300 None documented Commonwealth of the Northern Mariana Islands tuna troll 88 None documented Guam tuna troll 401 None documented HI trolling, rod and reel 1,321 None documented LONGLINE/SET LINE FISHERIES: AK Bering Sea, Aleutian Islands Greenland turbot longline 12 Killer whale, AK resident Killer whale, Eastern North Pacific, GOA, Aleutian Islands, and Bering Sea transient AK Bering Sea, Aleutian Islands rockfish longline 17 None documented AK Bering Sea, Aleutian Islands sablefish longline 63 None documented AK Gulf of Alaska halibut longline 1,302 None documented AK Gulf of Alaska Pacific cod longline 440 None documented AK Gulf of Alaska rockfish longline 421 None documented AK Gulf of Alaska sablefish longline 412 Sperm whale, North Pacific Steller sea lion, Eastern U.S. AK halibut longline/set line (State and Federal waters) 3,079 Steller sea lion, Western U.S. AK octopus/squid longline 7 None documented AK state-managed waters groundfish longline/setline (including sablefish, rockfish, and miscellaneous finfish) 731 None documented American Samoa longline 60 None documented WA, OR, CA groundfish, bottomfish longline/set line 367 None documented WA, OR North Pacific halibut longline/set line 350 None documented TRAWL FISHERIES: AK Bering Sea, Aleutian Islands Atka mackerel trawl 8 Steller sea lion, Western U.S. AK Bering Sea, Aleutian Islands Pacific cod trawl 87 Harbor seal, Bering Sea Steller sea lion, Western U.S. AK Bering Sea, Aleutian Islands rockfish trawl 9 None documented AK Gulf of Alaska flatfish trawl 52 None documented AK Gulf of Alaska Pacific cod trawl 101 Steller sea lion, Western U.S. AK Gulf of Alaska pollock trawl 83 Fin whale, Northeast Pacific Northern elephant seal, North Pacific Steller sea lion, Western U.S. AK Gulf of Alaska rockfish trawl 45 None documented AK food/bait herring trawl 3 None documented AK miscellaneous finfish otter or beam trawl 6 None documented AK shrimp otter trawl and beam trawl (statewide and Cook Inlet) 58 None documented AK state-managed waters of Cook Inlet, Kachemak Bay, Prince William Sound, Southeast AK groundfish trawl 2 None documented CA halibut bottom trawl 53 None documented WA, OR, CA groundfish trawl 585 California sea lion, U.S. Dall's porpoise, CA/OR/WA Harbor seal, OR/WA coast Northern fur seal, Eastern Pacific Pacific white-sided dolphin, CA/OR/WA Steller sea lion, Eastern U.S. WA, OR, CA shrimp trawl 300 None documented POT, RING NET, AND TRAP FISHERIES: AK Aleutian Islands sablefish pot 8 None documented AK Bering Sea, Aleutian Islands Pacific cod pot 76 None documented AK Bering Sea, Aleutian Islands crab pot 329 None documented AK Gulf of Alaska crab pot unknown None documented AK Gulf of Alaska Pacific cod pot 154 Harbor seal, GOA AK Southeast Alaska crab pot unknown Humpback whale, Central North Pacific (Southeast AK) AK Southeast Alaska shrimp pot unknown Humpback whale, Central North Pacific (Southeast AK) AK octopus/squid pot 72 None documented AK snail pot 2 None documented CA lobster, prawn, shrimp, rock crab, fish pot 608 Gray whale, Eastern North Pacific Harbor seal, CA Humpback whale, Eastern North Pacific Sea otter, CA OR, CA hagfish pot or trap 25 None documented WA, OR, CA crab pot 1,478 Humpback whale, Eastern North Pacific Gray whale, Eastern North Pacific WA, OR, CA sablefish pot 176 None documented WA, OR shrimp pot/trap 254 None documented HI crab trap 22 None documented HI fish trap 19 None documented HI lobster trap 0 Hawaiian monk seal HI shrimp trap 5 None documented HANDLINE AND JIG FISHERIES: AK miscellaneous finfish handline and mechanical jig 100 None documented AK North Pacific halibut handline and mechanical jig 93 None documented AK octopus/squid handline 2 None documented American Samoa bottomfish <50 None documented Commonwealth of the Northern Mariana Islands bottomfish <50 None documented Guam bottomfish 200 None documented HI aku boat, pole and line 4 None documented HI Main Hawaiian Islands, Northwest Hawaiian Islands deep sea bottomfish 300 Hawaiian monk seal HI inshore handline 307 None documented HI tuna handline 298 Hawaiian monk seal WA groundfish, bottomfish jig 679 None documented Western Pacific squid jig 6 None documented HARPOON FISHERIES: CA swordfish harpoon 30 None documented POUND NET/WEIR FISHERIES: AK herring spawn on kelp pound net 452 None documented AK Southeast herring roe/food/bait pound net 3 None documented WA herring brush weir 1 None documented BAIT PENS: WA/OR/CA bait pens 13 California sea lion, U.S. DREDGE FISHERIES: Coastwide scallop dredge 108 (12 AK) None documented DIVE, HAND/MECHANICAL COLLECTION FISHERIES: AK abalone 1 None documented AK clam 156 None documented WA herring spawn on kelp 4 None documented AK dungeness crab 3 None documented AK herring spawn on kelp 363 None documented AK urchin and other fish/shellfish 471 None documented CA abalone 111 None documented CA sea urchin 583 None documented HI black coral diving 1 None documented HI fish pond N/A None documented HI handpick 37 None documented HI lobster diving 19 None documented HI squiding, spear 91 None documented WA, CA kelp 4 None documented WA/OR sea urchin, other clam, octopus, oyster, sea cucumber, scallop, ghost shrimp hand, dive, or mechanical collection 637 None documented WA shellfish aquaculture 684 None documented COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES: AK, WA, OR, CA commercial passenger fishing vessel >7,000 (1,107 AK) Killer whale, stock unknown Steller sea lion, Eastern U.S. Steller sea lion, Western U.S. HI charter vessel 114 None documented LIVE FINFISH/SHELLFISH FISHERIES: CA finfish and shellfish live trap/hook-and-line 93 None documented List of Abbreviations and Symbols Used in Table 1: AK - Alaska; CA - California; GOA - Gulf of Alaska; HI - Hawaii; OR - Oregon; WA - Washington; 1 - Fishery classified based on serious injuries and mortalities of this stock are greater than 1 percent of the stock's PBR; 2 - Fishery classified by analogy. Table 2 - List of Fisheries Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean Fishery Description Estimated # of vessels/persons Marine mammal species and stocks incidentally killed/injured Category I GILLNET FISHERIES: Mid-Atlantic gillnet >670 Bottlenose dolphin, WNA coastal 1 Bottlenose dolphin, WNA offshore Common dolphin, WNA Gray seal, WNA Harbor porpoise, GME/BF 1 Harbor seal, WNA Harp seal, WNA Humpback whale, Gulf of Maine 1 Long-finned pilot whale, WNA Minke whale, Canadian east coast Short-finned pilot whale, WNA White-sided dolphin, WNA Northeast sink gillnet 341 Bottlenose dolphin, WNA offshore Common dolphin, WNA Fin whale, WNA Gray seal, WNA Harbor porpoise, GME/BF 1 Harbor seal, WNA Harp seal, WNA Hooded seal, WNA Humpback whale, WNA 1 Minke whale, Canadian east coast 1 North Atlantic right whale, WNA 1 Risso's dolphin, WNA White-sided dolphin, WNA LONGLINE FISHERIES: Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline 94 Atlantic spotted dolphin, Northern GMX Atlantic spotted dolphin, WNA Bottlenose dolphin, GMX outer continental shelf Bottlenose dolphin, GMX, continental shelf edge and slope Bottlenose dolphin, WNA offshore Common dolphin, WNA Cuvier's beaked whale, WNA Long-finned pilot whale, WNA 1 Mesoplodon beaked whale, WNA Northern bottlenose whale, WNA Pantropical spotted dolphin, Northern GMX Pantropical spotted dolphin, WNA Pygmy sperm whale, WNA 1 Risso's dolphin, Northern GMX Risso's dolphin, WNA Short-finned pilot whale, Northern GMX Short-finned pilot whale, WNA 1 TRAP/POT FISHERIES: Northeast/Mid-Atlantic American lobster trap/pot 13,000 Fin whale, WNA Harbor seal, WNA Humpback whale, WNA 1 Minke whale, Canadian east coast 1 North Atlantic right whale, WNA 1 Category II GILLNET FISHERIES: Chesapeake Bay inshore gillnet 2 45 None documented Gulf of Mexico gillnet 2 724 Bottlenose dolphin, Eastern GMX coastal Bottlenose dolphin, GMX bay, sound, and estuarine Bottlenose dolphin, Northern GMX coastal Bottlenose dolphin, Western GMX coastal North Carolina inshore gillnet 94 Bottlenose dolphin, WNA coastal 1 Northeast anchored float gillnet 2 133 Harbor seal, WNA Humpback whale, WNA White-sided dolphin, WNA Northeast drift gillnet 2 unknown None documented Southeast Atlantic gillnet 2 779 Bottlenose dolphin, WNA coastal Southeastern U.S. Atlantic shark gillnet 30 Atlantic spotted dolphin, WNA Bottlenose dolphin, WNA coastal 1 North Atlantic right whale, WNA TRAWL FISHERIES: Mid-Atlantic mid-water trawl (including pair trawl) 620 Bottlenose dolphin, WNA offshore Common dolphin, WNA Long-finned pilot whale, WNA Risso's dolphin, WNA Short-finned pilot whale, WNA White-sided dolphin, WNA 1 Mid-Atlantic bottom trawl >1,000 Common dolphin, WNA 1 Long-finned pilot whale, WNA 1 Short-finned pilot whale, WNA 1 Mid-Atlantic flynet 2 21 None documented Northeast mid-water trawl (including pair trawl) 17 Harbor seal, WNA Long-finned pilot whale, WNA 1 Short-finned pilot whale, WNA 1 White-sided dolphin, WNA Northeast bottom trawl 1,052 Common dolphin, WNA Harbor porpoise, GME/BF Harp seal, WNA Long-finned pilot whale, WNA Short-finned pilot whale, WNA White-sided dolphin, WNA 1 TRAP/POT FISHERIES: Atlantic blue crab trap/pot >16,000 Bottlenose dolphin, WNA coastal 1 West Indian manatee, FL 1 Atlantic mixed species trap/pot 2 unknown Fin whale, WNA Humpback whale, Gulf of Maine PURSE SEINE FISHERIES: Gulf of Mexico menhaden purse seine 50 Bottlenose dolphin, Eastern GMX coastal Bottlenose dolphin, GMX bay, sound, estuarine Bottlenose dolphin, Northern GMX coastal 1 Bottlenose dolphin, Western GMX coastal Mid-Atlantic menhaden purse seine 2 22 Bottlenose dolphin, WNA coastal HAUL/BEACH SEINE FISHERIES: Mid-Atlantic haul/beach seine 25 Bottlenose dolphin, WNA coastal 1 North Carolina long haul seine 33 Bottlenose dolphin, WNA coastal 1 STOP NET FISHERIES: North Carolina roe mullet stop net 13 Bottlenose dolphin, WNA coastal 1 POUND NET FISHERIES: Virginia pound net 187 Bottlenose dolphin, WNA coastal 1 Category III GILLNET FISHERIES: Caribbean gillnet >991 Dwarf sperm whale, WNA West Indian manatee, Antillean Delaware River inshore gillnet 60 None documented Long Island Sound inshore gillnet 20 None documented Rhode Island, southern Massachusetts (to Monomoy Island), and New York Bight (Raritan and Lower New York Bays) inshore gillnet 32 None documented Southeast Atlantic inshore gillnet unknown None documented TRAWL FISHERIES: Atlantic shellfish bottom trawl 972 None documented Gulf of Mexico butterfish trawl 2 Bottlenose dolphin, Northern GMX outer continental shelf Bottlenose dolphin, Northern GMX continental shelf edge and slope Gulf of Mexico mixed species trawl 20 None documented Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl >18,000 Bottlenose dolphin, Eastern GMX coastal Bottlenose dolphin, Western GMX coastal Bottlenose dolphin, GMX bay, sound, estuarine West Indian Manatee, FL MARINE AQUACULTURE FISHERIES: Finfish aquaculture 48 Harbor seal, WNA Shellfish aquaculture unknown None documented PURSE SEINE FISHERIES: Gulf of Maine Atlantic herring purse seine 30 Harbor seal, WNA Gray seal, WNA Gulf of Maine menhaden purse seine 50 None documented Florida west coast sardine purse seine 10 Bottlenose dolphin, Eastern GMX coastal U.S. Atlantic tuna purse seine 5 Long-finned pilot whale, WNA Short-finned pilot whale, WNA U.S. Mid-Atlantic hand seine >250 None documented LONGLINE/HOOK-AND-LINE FISHERIES: Northeast/Mid-Atlantic bottom longline/hook-and-line 46 None documented Gulf of Maine, U.S. Mid-Atlantic tuna, shark swordfish hook-and-line/harpoon 26,223 Humpback whale, WNA Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean snapper-grouper and other reef fish bottom longline/hook-and-line >5,000 None documented Southeastern U.S. Atlantic, Gulf of Mexico shark bottom longline/hook-and-line <125 None documented Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean pelagic hook-and-line/harpoon 1,446 None documented TRAP/POT FISHERIES Caribbean mixed species trap/pot >501 None documented Caribbean spiny lobster trap/pot >197 None documented Florida spiny lobster trap/pot 2,145 Bottlenose dolphin, Eastern GMX coastal Gulf of Mexico blue crab trap/pot 4,113 Bottlenose dolphin, Western GMX coastal Bottlenose dolphin, Northern GMX coastal Bottlenose dolphin, Eastern GMX coastal Bottlenose dolphin, GMX Bay, Sound, & Estuarine West Indian manatee, FL Gulf of Mexico mixed species trap/pot unknown None documented Southeastern U.S. Atlantic, Gulf of Mexico golden crab trap/pot 10 None documented Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot 4,453 None documented U.S. Mid-Atlantic eel trap/pot >700 None documented STOP SEINE/WEIR/POUND NET FISHERIES: Gulf of Maine herring and Atlantic mackerel stop seine/weir 50 Gray seal, Northwest North Atlantic Harbor porpoise, GME/BF Harbor seal, WNA Minke whale, Canadian east coast White-sided dolphin, WNA U.S. Mid-Atlantic crab stop seine/weir 2,600 None documented U.S. Mid-Atlantic mixed species stop seine/weir/pound net (except the North Carolina roe mullet stop net) 751 None documented DREDGE FISHERIES: Gulf of Maine mussel >50 None documented Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge 233 None documented U.S. Mid-Atlantic/Gulf of Mexico oyster 7,000 None documented U.S. Mid-Atlantic offshore surf clam and quahog dredge 100 None documented HAUL/BEACH SEINE FISHERIES: Caribbean haul/beach seine 15 West Indian manatee, Antillean Gulf of Mexico haul/beach seine unknown None documented Southeastern U.S. Atlantic, haul/beach seine 25 None documented DIVE, HAND/MECHANICAL COLLECTION FISHERIES: Atlantic Ocean, Gulf of Mexico, Caribbean shellfish dive, hand/mechanical collection 20,000 None documented Gulf of Maine urchin dive, hand/mechanical collection >50 None documented Gulf of Mexico, Southeast Atlantic, Mid-Atlantic, and Caribbean cast net unknown None documented COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES: Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel 4,000 Bottlenose dolphin, Eastern GMX coastal Bottlenose dolphin, Northern GMX coastal Bottlenose dolphin, Western GMX coastal Bottlenose dolphin, WNA coastal List of Abbreviations and Symbols Used in Table 2: FL - Florida; GA - Georgia; GME/BF - Gulf of Maine/Bay of Fundy; GMX - Gulf of Mexico; NC - North Carolina; SC - South Carolina; TX - Texas; WNA - Western North Atlantic; 1 - Fishery classified based on serious injuries and mortalities of this stock are greater than 1 percent of the stock's PBR; 2 - Fishery classified by analogy. Classification The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. For convenience, the factual basis leading to the certification is repeated below. Under existing regulations, all fishers participating in Category I or II fisheries must register under the MMPA, obtain an Authorization Certificate, and pay a fee of $25 (with the exception of those in regions with a registration process integrated with existing state and Federal permitting processes). Additionally, fishers may be subject to a Take Reduction Plan

(TRP)and requested to carry an observer. The Authorization Certificate authorizes the taking of marine mammals incidental to commercial fishing operations. NMFS has estimated that approximately 42,000 fishing vessels, most of which are small entities, operate in Category I or II fisheries, and therefore, are required to register. However, registration has been integrated with existing state or Federal registration programs for the majority of these fisheries so these fishers do not need to register separately under the MMPA. Currently, less than 360 fishers register directly with NMFS under the MMPA authorization program. Though this final rule will affect approximately 360 small entities, the $25 registration fee, with respect to anticipated revenues, is not considered a significant economic impact. If a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. As a result of this certification, an initial regulatory flexibility analysis was not prepared. In the event that reclassification of a fishery to Category I or II results in a TRP, economic analyses of the effects of that plan will be summarized in subsequent rulemaking actions. This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers under the MMPA has been approved by the Office of Management and Budget

(OMB)under OMB control number 0648-0293 (0.15 hours per report for new registrants and 0.09 hours per report for renewals). The requirement for reporting marine mammal injuries or mortalities has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES and SUPPLEMENTARY INFORMATION ). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. This final rule has been determined to be not significant for the purposes of Executive Order 12866. An environmental assessment

(EA)was prepared under the National Environmental Policy Act

(NEPA)for regulations to implement section 118 of the MMPA in June 1995. NMFS revised that EA relative to classifying U.S. commercial fisheries on the LOF in December 2005. Both the 1995 EA and the 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. This final rule would not make any significant change in the management of reclassified fisheries, and therefore, this final rule is not expected to change the analysis or conclusion of the 2005 EA. If NMFS takes a management action, for example, through the development of a TRP, NMFS will first prepare an environmental document, as required under NEPA, specific to that action. This final rule will not affect species listed as threatened or endangered under the Endangered Species Act

(ESA)or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would conduct consultation under ESA section 7 for that action. This final rule will have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams. This final rule will not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act. References Angliss, R.P., and D.P. DeMaster. 1998. Differentiating Serious and Non-serious Injury of Marine Mammals Taken Incidental to Commercial Fishing Operations: Report of the Serious Injury Workshop 1-2 April 1997, Silver Spring, Maryland. NOAA Technical Memorandum NMFS-OPR-13. Chivers, S. J., Baird, R.W., McSweeney, D.J., Webster, D., Hedrick, N.M. and Salinas, J.C. 2006. Genetic variation and evidence for population structure in eastern North Pacific false killer whales ( *Pseudorca crassidens* ). Submitted- Canadian Journal of Zoology. Dated: March 22, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E7-5709 Filed 3-27-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [I.D. 032107B] Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; inseason retention limit adjustment. SUMMARY: NMFS has determined that the daily Highly Migratory Species

(HMS)Angling category retention limits for Atlantic bluefin tuna

(BFT)should be adjusted to maximize the usefulness of the information obtained from catches for biological sampling. Vessels permitted in the HMS Angling and HMS Charter/Headboat categories are eligible to land BFT under the HMS Angling category quota. Therefore, NMFS adjusts the daily BFT retention limits for the HMS Angling category quota to allow landing of school BFT in North Carolina during the three-week period from March 24, 2007, through April 15, 2007, as specified in the SUPPLEMENTARY INFORMATION section of this document. This action is intended to provide scientific data that would enhance future recreational fishing opportunities for the HMS Angling and HMS Charter/Headboat categories, while minimizing the risk of an overharvest of the HMS Angling category BFT quota. DATES: Effective from 12:01 a.m., March 24, 2007, through 11:59 p.m., April 15, 2007. FOR FURTHER INFORMATION CONTACT: Dianne Stephan, 978-281-9260. SUPPLEMENTARY INFORMATION: Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 *et seq.* ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 *et seq.* ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. The 2006 BFT fishing year began on June 1, 2006, and ends May 31, 2007. The final initial 2006 BFT specifications and effort controls were published on May 30, 2006 (71 FR 30619). These final specifications established retention limits for school BFT (measuring 27 inches (69 cm) to less than 47 inches (119 cm)) for the HMS Angling and HMS Charter/Headboat categories in accordance with the following:

(1)International Commission for the Conservation of Atlantic Tunas (ICCAT) recommendation limiting the U.S. catch of school BFT to no more than 8 percent of total U.S. domestic landings calculated as a four-year average;

(2)the Consolidated HMS Fishery Management Plan

(FMP)(October 2, 2006, 71 FR 58058); and

(3)the HMS FMP implementing regulations at 50 CFR 635.27. The 2006 fishing year is the fourth year in the four-year accounting period established by the ICCAT recommendation that limits harvest of U.S. school BFT. The amount of quota available for the fourth year was limited to 49.2 metric tons (mt), and the final initial 2006 BFT specifications established a one school BFT retention limit for the HMS Angling and HMS Charter/Headboat categories from July 1 through July 21, 2006, in the area South of 39° 18′ N, and from August 25 through September 14, 2006, in the area North of 39° 18′ N. (In addition, these permit categories were subject to a retention limit of two BFT per vessel measuring 47 inches (119cm) to less than 73 inches (185 cm) CFL for the entire fishing year.) Preliminary draft estimates show that all the available school quota for 2006 has not been harvested, providing an opportunity for a limited re-opening for research purposes. At the Spring 2005 and 2006 HMS Advisory Panel

(AP)meetings, AP members discussed the BFT length to weight conversion ratios used in the Large Pelagic Survey

(LPS)and other NMFS analyses, and expressed concern that the current ratios over-estimate recreational landings. In June 2006, NMFS published “Evaluation of Length-Weight Keys Used to Convert Large Pelagics Survey Bluefin Tuna Landings Numbers to Weights,” which concluded that additional research was necessary to determine the accuracy of the conversion factors in use. During the 2006 fishing year, NMFS expanded the LPS to collect additional data for use in re-analyzing length to weight conversion factors for BFT. In collaboration with NMFS, the North Carolina Division of Marine Fisheries' (NCDMF) recreational BFT tagging program has been expanded to continue to collect these length and weight data during Spring 2007. Recreationally harvested school BFT landed and tagged at NCDMF weigh stations will be measured and weighed as a part of the NMFS length to weight conversion study. NMFS has recently been notified that school BFT are now available off North Carolina. Thus, NMFS is taking this action to allow retention of school BFT off North Carolina, and landing of school BFT in North Carolina ports to collect data for the NMFS length to weight conversion study. Under § 635.23(b)(3), NMFS may increase or decrease the HMS Angling category daily retention limit based on the criteria provided in § 635.27 (a)(8). As discussed above, the determination to adjust the retention limit is primarily based on the usefulness of information obtained from catches in the HMS Angling and Charter/Headboat categories for biological sampling and monitoring of the status of the stock (§ 635.27 (a)(8)(i)) and the availability of school BFT on the fishing grounds § 635.27 (a)(8)(ix). In addition, this action would be consistent with the objectives of the consolidated HMS FMP, and the limited three-week duration is anticipated to provide sufficient data for the research program without over-harvesting the school BFT subquota. Daily Retention Limits Pursuant to this action and the final initial 2006 BFT specifications, noted above, the daily BFT retention limits for HMS Angling and HMS Charter/Headboat categories are as follows: Table 1. Effective dates for retention limit adjustments Permit Category Effective Dates Areas BFT Size Class Limit HMS Angling and HMS Charter/Headboat (while fishing recreationally) June 1, 2006, through May 31, 2006, inclusive. All Two BFT per vessel per day/trip, measuring 47 inches (119 cm) curved fork length

(CFL)to less than 73 inches CFL (185 cm). 12:01 a.m., March 24, 2007, through 11:59 p.m., April 15, 2007. Off North Carolina One BFT per vessel per day/trip, measuring 27 inches (69 cm) CFL to less than 47 inches (119cm) CFL. Monitoring and Reporting NMFS selected the daily retention limits and their duration after examining current and previous fishing year catch and effort rates, taking into consideration public comment on the annual specifications and inseason management measures for the Angling category received during the 2006 BFT quota specifications rulemaking process, and analyzing the available quota for the 2006 fishing year. NMFS will continue to monitor the BFT fishery closely through dealer landing reports, the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. All school BFT must be landed in the state of North Carolina and reported and tagged at a state reporting station. Depending on the level of fishing effort, NMFS may determine that additional retention limit adjustments are necessary prior to May 31, 2007. Closures or subsequent adjustments to the daily retention limits, if any, will be published in the **Federal Register** . In addition, fishermen may call the Atlantic Tunas Information Line at

(888)872-8862 or

(978)281-9260, or access the internet at www.hmspermits.gov, for updates on quota monitoring and retention limit adjustments. Classification The Assistant Administrator for NMFS

(AA)finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons: NMFS has recently become aware of increased availability of school BFT in close proximity to the shores of North Carolina, as provided by fishing reports and communication with NCDMF officials and recreational fishermen. This increase in abundance provides the potential to continue the NMFS length to weight conversion study, which is crucial to management of BFT fisheries. In addition to providing for scientific research, increasing the retention limit may also provide small positive social and economic benefits to fishermen and recreational fishing related businesses. The regulations implementing the HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to adjust this retention limit is impracticable as it would preclude NMFS from acting promptly to allow harvest of BFT that are available on the fishing grounds. Analysis of available data shows that this increase to the school BFT retention limit, over a short time span (three weeks) and limited area, has minimal risk of exceeding the ICCAT allocated school BFT limit, as implemented in the 2006 final initial BFT specifications. Delays in increasing the retention limit would be contrary to the public interest. Limited opportunities are available to sample recreationally harvested BFT for research purposes. Collaboration with the NCDMF recreational BFT tagging program is expected to provide a sufficient sample size upon which to base scientifically valid analyses of length to weight conversion factors. Accurate conversion factors are crucial for the estimation of recreational landings and other stock assessment analyses. Incorrect conversion factors could overestimate harvests, which would negatively impact U.S. fishermen both economically and socially, or underestimate harvests, which could negatively impact bluefin tuna stocks. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness. In addition, this action relieves a restriction (i.e., this action allows retention of more fish). This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 971 *et seq.* and 1801 *et seq.* March 22, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 07-1485 Filed 3-22-07; 3:23 pm]

Connectionstraces to 46

Traces to 46 documents

CFR