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Code · REGISTER · 2007-04-06 · Surface Transportation Board · Rules and Regulations

Rules and Regulations. Final Rule

62,975 words·~286 min read·/register/2007/04/06/07-1703

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

BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board 49 CFR Part 1002 [STB Ex Parte No. 542 (Sub-No. 14)] Regulations Governing Fees for Services Performed in Connection With Licensing and Related Services—2007 Update AGENCY: Surface Transportation Board. ACTION: Final Rule. SUMMARY: The Board adopts its 2007 User Fee Update and revises its fee schedule to recover the costs associated with the January 2007 Government salary increases and to reflect changes in overhead costs to the Board. EFFECTIVE DATE: These rules are effective May 6, 2007. FOR FURTHER INFORMATION CONTACT: David T. Groves,
(202)245-0327, or Anne Quinlan,
(202)245-0309. [TDD for the hearing impaired: 1-800-877-8339.] SUPPLEMENTARY INFORMATION: The Board's regulations at 49 CFR 1002.3 require that the Board's user fee schedule be updated annually. The regulation at 49 CFR 1002.3(a) provides that the entire fee schedule or selected fees can be modified more than once a year, if necessary. Fees are revised based on the cost study formula set forth at 49 CFR 1002.3(d). Because Board employees received a salary increase of 2.64% in January 2007, the Board is updating its user fees to recover the increased personnel costs. With certain exceptions, all fees, including those adopted or amended in *Regulations Governing Fees for Services Performed in Connection With Licensing and Related Services—2002 New Fees,* STB Ex Parte No. 542 (Sub-No. 4) (STB served Mar. 29, 2004) will also be updated based on the cost formula contained in 49 CFR 1002.3(d). In addition, changes to the overhead costs borne by the Board are reflected in the revised fee schedule. The fee increases adopted here result from the mechanical application of the update formula in 49 CFR 1002.3(d), which was adopted through notice and comment procedures in *Regulations Governing Fees for Services—1987 Update* , 4 I.C.C.2d 137 (1987). No new fees are being proposed in this proceeding. Therefore, the Board finds that notice and comment are unnecessary for this proceeding. *See Regulations Governing Fees for Services—1990 Update* , 7 I.C.C.2d 3 (1990); *Regulations Governing Fees for Services—1991 Update* , 8 I.C.C.2d 13 (1991); and *Regulations Governing Fees For Services—1993 Update* , 9 I.C.C.2d 855 (1993). The Board concludes that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship. Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's Web site at *http://www.stb.dot.gov* or call the Board's Information Officer at
(202)245-0245. To purchase a copy of the decision, write to, call, e-mail, or pick up in person from ASAP Document Solutions, 9332 Annapolis Road, Suite 103, Lanham, MD 20706,
(202)306-4004, *asapdc@verizon.net* . [Assistance for the hearing impaired is available through Federal Information Relay Services (FIRS):
(800)877-8339.] List of Subjects in 49 CFR Part 1002 Administrative practice and procedure, Common carriers, Freedom of information, User fees. Decided: April 2, 2007. By the Board, Chairman Nottingham, Vice Chairman Buttrey, and Commissioner Mulvey. Vernon A. Williams, Secretary. For the reasons set forth in the preamble, title 49, chapter X, part 1002, of the Code of Federal Regulations is amended as follows: PART 1002—FEES 1. The authority citation for part 1002 continues to read as follows: Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701 and 49 U.S.C. 721(a). 2. Section 1002.1 is amended by revising paragraphs (b),
(c)and (f)(1); and the table in paragraph (g)(6) to read as follows: § 1002.1 Fees for record search, review, copying, certification, and related services.
(b)Service involved in examination of tariffs or schedules for preparation of certified copies of tariffs or schedules or extracts therefrom at the rate of $36.00 per hour.
(c)Service involved in checking records to be certified to determine authenticity, including clerical work, etc., identical thereto, at the rate of $25.00 per hour.
(f)* * *
(1)A fee of $64.00 per hour for professional staff time will be charged when it is required to fulfill a request for ADP data.
(g)* * *
(6)* * * Grade Rate Grade Rate GS-1 $10.71 GS-9 $25.00 GS-2 11.66 GS-10 27.53 GS-3 13.14 GS-11 30.25 GS-4 14.75 GS-12 36.26 GS-5 16.50 GS-13 43.12 GS-6 18.39 GS-14 50.95 GS-7 GS-8 20.44 22.64 GS-15 and over 59.93 3. In § 1002.2, paragraph
(f)is revised as follows: § 1002.2 Filing fees.
(f)*Schedule of filing fees.* Type of proceeding Fee PART I: Non-Rail Applications or Proceedings to Enter Upon a Particular Financial Transaction or Joint Arrangement
(1)An application for the pooling or division of traffic $3,700.
(i)An application involving the purchase, lease, consolidation, merger, or acquisition of control of a motor carrier of passengers under 49 U.S.C. 14303 1,700.
(ii)A petition for exemption under 49 U.S.C. 13541 (other than a rulemaking) filed by a non-rail carrier not otherwise covered 2,800.
(iii)A petition to revoke an exemption filed under 49 U.S.C. 13541(d) 2,300.
(3)An application for approval of a non-rail rate association agreement. 49 U.S.C. 13703 23,600.
(4)An application for approval of an amendment to a non-rail rate association agreement:
(i)Significant amendment 3,900.
(ii)Minor amendment 90.
(5)An application for temporary authority to operate a motor carrier of passengers. 49 U.S.C. 14303(i) 400.
(6)A notice of exemption for transaction within a motor passenger corporate family that does not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with motor passenger carriers outside the corporate family 1,500. (7)-(10) [Reserved] PART II: Rail Licensing Proceedings other than Abandonment or Discontinuance Proceedings
(i)An application for a certificate authorizing the extension, acquisition, or operation of lines of railroad. 49 U.S.C. 10901 $6,200.
(ii)Notice of exemption under 49 CFR 1150.31-1150.35 1,600.
(iii)Petition for exemption under 49 U.S.C. 10502 10,700.
(i)An application involving the construction of a rail line 63,800.
(ii)A notice of exemption involving construction of a rail line under 49 CFR 1150.36 1,600.
(iii)A petition for exemption under 49 U.S.C. 10502 involving construction of a rail line 63,800.
(iv)A request for determination of a dispute involving a rail construction that crosses the line of another carrier under 49 U.S.C. 10902(d) 200.
(13)A Feeder Line Development Program application filed under 49 U.S.C. 10907(b)(1)(A)(i) or 10907(b)(1)(A)(ii) 2,600.
(i)An application of a class II or class III carrier to acquire an extended or additional rail line under 49 U.S.C. 10902 5,300.
(ii)Notice of exemption under 49 CFR 1150.41-1150.45 1,600.
(iii)Petition for exemption under 49 U.S.C. 10502 relating to an exemption from the provisions of 49 U.S.C. 10902 5,700.
(15)A notice of a modified certificate of public convenience and necessity under 49 CFR 1150.21-1150.24 1,400. (16)-(20) [Reserved] PART III: Rail Abandonment or Discontinuance of Transportation Services Proceedings
(i)An application for authority to abandon all or a portion of a line of railroad or discontinue operation thereof filed by a railroad (except applications filed by Consolidated Rail Corporation pursuant to the Northeast Rail Service Act [Subtitle E of Title XI of Pub. L. 97-35], bankrupt railroads, or exempt abandonments) $18,900.
(ii)Notice of an exempt abandonment or discontinuance under 49 CFR 1152.50 3,200.
(iii)A petition for exemption under 49 U.S.C. 10502 5,400.
(22)An application for authority to abandon all or a portion of a line of a railroad or operation thereof filed by Consolidated Rail Corporation pursuant to Northeast Rail Service Act. 400.
(23)Abandonments filed by bankrupt railroads 1,600.
(24)A request for waiver of filing requirements for abandonment application proceedings 1,500.
(25)An offer of financial assistance under 49 U.S.C. 10904 relating to the purchase of or subsidy for a rail line proposed for abandonment 1,300.
(26)A request to set terms and conditions for the sale of or subsidy for a rail line proposed to be abandoned 19,300.
(i)A request for a trail use condition in an abandonment proceeding under 16 U.S.C.1247(d) 200.
(ii)A request to extend the period to negotiate a trail use agreement 350. (28)-(35) [Reserved] PART IV: Rail Applications to Enter Upon a Particular Financial Transaction or Joint Arrangement
(36)An application for use of terminal facilities or other applications under 49 U.S.C. 11102 $16,200.
(37)An application for the pooling or division of traffic. 49 U.S.C. 11322 8,700.
(38)An application for two or more carriers to consolidate or merge their properties or franchises (or a part thereof) into one corporation for ownership, management, and operation of the properties previously in separate ownership. 49 U.S.C. 11324:
(i)Major transaction 1,275,100.
(ii)Significant transaction 255,000.
(iii)Minor transaction 6,600.
(iv)Notice of an exempt transaction under 49 CFR 1180.2(d) 1,500.
(v)Responsive application 6,600.
(vi)Petition for exemption under 49 U.S.C. 10502 8,000.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) 4,700.
(39)An application of a non-carrier to acquire control of two or more carriers through ownership of stock or otherwise. 49 U.S.C. 11324:
(i)Major transaction 1,275,100.
(ii)Significant transaction 255,000.
(iii)Minor transaction 6,600.
(iv)A notice of an exempt transaction under 49 CFR 1180.2(d) 1,100.
(v)Responsive application 6,600.
(vi)Petition for exemption under 49 U.S.C. 10502 8,000.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) 4,700.
(40)An application to acquire trackage rights over, joint ownership in, or joint use of any railroad lines owned and operated by any other carrier and terminals incidental thereto. 49 U.S.C. 11324:
(i)Major transaction 1,275,100.
(ii)Significant transaction 255,000.
(iii)Minor transaction 6,600.
(iv)Notice of an exempt transaction under 49 CFR 1180.2(d) 1,000.
(v)Responsive application 6,600.
(vi)Petition for exemption under 49 U.S.C. 10502 8,000.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) 4,700.
(41)An application of a carrier or carriers to purchase, lease, or contract to operate the properties of another, or to acquire control of another by purchase of stock or otherwise. 49 U.S.C. 11324:
(i)Major transaction 1,275,100.
(ii)Significant transaction 255,000.
(iii)Minor transaction 6,600.
(iv)Notice of an exempt transaction under 49 CFR 1180.2(d) 1,200.
(v)Responsive application 6,600.
(vi)Petition for exemption under 49 U.S.C. 10502 5,700.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) 4,700.
(42)Notice of a joint project involving relocation of a rail line under 49 CFR 1180.2(d)(5) 2,100.
(43)An application for approval of a rail rate association agreement. 49 U.S.C. 10706 59,700.
(44)An application for approval of an amendment to a rail rate association agreement. 49 U.S.C. 10706:
(i)Significant amendment 11,000.
(ii)Minor amendment 90.
(45)An application for authority to hold a position as officer or director under 49 U.S.C. 11328 650.
(46)A petition for exemption under 49 U.S.C. 10502 (other than a rulemaking) filed by rail carrier not otherwise covered 6,800.
(47)National Railroad Passenger Corporation (Amtrak) conveyance proceeding under 45 U.S.C. 562 200.
(48)National Railroad Passenger Corporation (Amtrak) compensation proceeding under Section 402(a) of the Rail Passenger Service Act 200. (49)-(55) [Reserved] PART V: Formal Proceedings
(56)A formal complaint alleging unlawful rates or practices of carriers:
(i)A formal complaint filed under the coal rate guidelines (Stand-Alone Cost Methodology) alleging unlawful rates and/or practices of rail carriers under 49 U.S.C. 10704(c)(1) $178,200.
(ii)A formal complaint involving rail maximum rates filed under the small rate case procedures 150.
(iii)All other formal complaints (except competitive access complaints) 17,600.
(iv)Competitive access complaints 150.
(v)A request for an order compelling a rail carrier to establish a common carrier rate 200.
(57)A complaint seeking or a petition requesting institution of an investigation seeking the prescription or division of joint rates or charges. 49 U.S.C. 10705 7,500.
(58)A petition for declaratory order:
(i)A petition for declaratory order involving a dispute over an existing rate or practice which is comparable to a complaint proceeding 1,000.
(ii)All other petitions for declaratory order 1,400.
(59)An application for shipper antitrust immunity. 49 U.S.C. 10706(a)(5)(A) 6,000.
(60)Labor arbitration proceedings 200.
(i)An appeal of a Surface Transportation Board decision on the merits or petition to revoke an exemption pursuant to 49 U.S.C. 10502(d) 200.
(ii)An appeal of a Surface Transportation Board decision on procedural matters except discovery rulings 300.
(62)Motor carrier undercharge proceedings 200.
(i)Expedited relief for service inadequacies: A request for expedited relief under 49 U.S.C. 11123 and 49 CFR part 1146 for service emergency 200.
(ii)Expedited relief for service inadequacies: A request for temporary relief under 49 U.S.C. 10705 and 11102, and 49 CFR part 1147 for service inadequacies 200.
(64)A request for waiver or clarification of regulations except one filed in an abandonment or discontinuance proceeding, or in a major financial proceeding as defined at 49 CFR 1180.2(a) 500. (65)-(75) [Reserved] PART VI: Informal Proceedings
(76)An application for authority to establish released value rates or ratings for motor carriers and freight forwarders of household goods under 49 U.S.C. 14706 1,000.
(77)An application for special permission for short notice or the waiver of other tariff publishing requirements $100.
(78)The filing of tariffs, including supplements, or contract summaries $1 per page. ($21 minimum charge.)
(79)Special docket applications from rail and water carriers:
(i)Applications involving $25,000 or less 50.
(ii)Applications involving over $25,000 100.
(80)Informal complaint about rail rate applications 500.
(81)Tariff reconciliation petitions from motor common carriers:
(i)Petitions involving $25,000 or less 50.
(ii)Petitions involving over $25,000 100.
(82)Request for a determination of the applicability or reasonableness of motor carrier rates under 49 U.S.C. 13710(a)(2) and
(3)200.
(83)Filing of documents for recordation. 49 U.S.C. 11301 and 49 CFR 1177.3(c) $35 per document.
(84)Informal opinions about rate applications (all modes) 200.
(85)A railroad accounting interpretation 950.
(i)A request for an informal opinion not otherwise covered 1,200.
(ii)A proposal to use on a voting trust agreement pursuant to 49 CFR 1013 and 49 CFR 1180.4(b)(4)(iv) in connection with a major control proceeding as defined at 49 CFR 1180.2(a) 4,300.
(iii)A request for an informal opinion on a voting trust agreement pursuant to 49 CFR 1013.3(a) not otherwise covered 400.
(87)Arbitration of Certain Disputes Subject to the Statutory Jurisdiction of the Surface Transportation Board under 49 CFR 1108:
(i)Complaint 75.
(ii)Answer (per defendant), Unless Declining to Submit to Any Arbitration 75.
(iii)Third Party Complaint 75.
(iv)Third Party Answer (per defendant), Unless Declining to Submit to Any Arbitration 75.
(v)Appeals of Arbitration Decisions or Petitions to Modify or Vacate an Arbitration Award 150.
(88)Basic fee for STB adjudicatory services not otherwise covered 200. (89)-(95) [Reserved] PART VII: Services
(96)Messenger delivery of decision to a railroad carrier's Washington, DC, agent $27 per delivery.
(97)Request for service or pleading list for proceedings $20 per list.
(98)Processing the paperwork related to a request for the Carload Waybill Sample to be used in a Surface Transportation Board or State proceeding that:
(i)Does not require a **Federal Register** notice:
(a)Set cost portion $100.
(b)Sliding cost portion $40 per party.
(ii)Does require a **Federal Register** notice:
(a)Set cost portion $350.
(b)Sliding cost portion $40 per party.
(i)Application fee for the Surface Transportation Board's Practitioners' Exam $150.
(ii)Practitioners' Exam Information Package 25.
(100)Uniform Railroad Costing System
(URCS)software and information:
(i)Initial PC version URCS Phase III software program and manual 50.
(ii)Updated URCS PC version Phase III cost file—per year $25 per year.
(iii)Public requests for *Source Codes* to the PC version URCS Phase III $100.
(101)Carload Waybill Sample data on recordable compact disk (R-CD):
(i)Requests for Public Use File on R-CD—per year $250 per year.
(ii)Waybill—Surface Transportation Board or State proceedings on R-CD—per year $500 per year.
(iii)User Guide for latest available Carload Waybill Sample $50.
(iv)Specialized programming for Waybill requests to the Board $95 per hour. [FR Doc. E7-6479 Filed 4-5-07; 8:45 am] BILLING CODE 4915-01-P 72 66 Friday, April 6, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 959 [Docket Nos. AO-322-A4; AMS-2006-0079; FV06-959-1] Onions Grown in South Texas; Recommended Decision and Opportunity To File Written Exceptions to Proposed Amendments to Marketing Agreement No. 143 and Order No. 959 AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule and opportunity to file exceptions. SUMMARY: This recommended decision invites written exceptions on proposed amendments to the marketing agreement and order (order) for onions grown in South Texas. Three amendments were proposed by the South Texas Onion Committee (committee), which is responsible for local administration of the order. These proposed amendments would: Add authority to the order to establish supplemental assessment rates on specified containers of onions; authorize interest and late payment charges on assessments not paid within a prescribed time period; and authorize the committee to engage in marketing promotion and paid advertising activities. Two additional amendments were proposed by the Department of Agriculture (USDA). These amendments would: Require that a continuance referendum be conducted every six years to determine grower support for the order; and, limit the number of consecutive terms of office a member can serve on the committee. The USDA also proposed to make such changes to the order as may be necessary to conform to any amendment that may result from the hearing. DATES: Written exceptions must be filed by May 7, 2007. ADDRESSES: Written exceptions should be filed with the Hearing Clerk, U.S. Department of Agriculture, Room 1081-S, Washington, DC 20250-9200; *Fax:*
(202)720-9776; or via the Internet at *http://www.regulations.gov.* All comments should reference the docket number and the date and page number of this issue of the **Federal Register** . Comments will be made available for public inspection in the Office of the Hearing Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order Administration Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, USDA, 2202 Monterey Street, #102-B, Fresno, CA 93721; *telephone:*
(559)487-5110, *Fax:*
(559)487-5906, *E-mail:* *Martin.Engeler@usda.gov* ; or Kathleen M. Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; *telephone:*
(202)720-2491, *Fax:*
(202)720-8938, *E-mail:* *Kathy.Finn@usda.gov.* Small businesses may request information on this proceeding by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; *telephone:*
(202)720-2491, *Fax:*
(202)720-8938, *E-mail:* *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: Prior documents in this proceeding include a Notice of Hearing issued on May 23, 2006, and published in the May 30, 2006, issue of the **Federal Register** (71 FR 30629). This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866. Preliminary Statement Notice is hereby given of the filing with the Hearing Clerk of this recommended decision with respect to the proposed amendment of Marketing Agreement 143 and Order No. 959 regulating the handling of onions grown in South Texas, and the opportunity to file written exceptions thereto. Copies of this decision can be obtained from Martin Engeler, whose address is listed above. This recommended decision is issued pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 *et seq.* ), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). The proposed amendments are based on the record of a public hearing held on June 15, 2006, in Mission, Texas. Notice of this hearing was published in the **Federal Register** on May 30, 2006 (71 FR 30629). The notice of hearing contained proposals submitted by both the committee and USDA. Four proposed amendments to the order were initially submitted by the committee to USDA. These proposals were the result of deliberations and a recommendation by the committee at a public meeting on October 28, 2004. The four proposed amendments were included in the notice of hearing. Proposal number four in the notice of hearing pertaining to container marking requirements was withdrawn at the hearing because the committee determined it was not needed and recommended it be withdrawn at a meeting on June 1, 2006. The committee's remaining three proposed amendments to the order would:
(1)Provide authority to establish supplemental assessment rates on specified containers of onions;
(2)authorize interest and late payment charges on assessments not paid within a prescribed time period; and
(3)add authority for marketing promotion, including paid advertising. The USDA proposed two additional amendments that would: Require a continuance referendum to be conducted every six years to determine grower support for the order; and limit the number of consecutive years terms of office a member may serve on the committee. USDA also proposed to make such changes to the order as may be necessary, if any of the proposed changes are adopted, so that all of the order's provisions conform to the effectuated amendments. Four industry witnesses testified at the hearing. These witnesses represented onion growers and handlers in the production area, as well as the committee, and they all supported the committee's recommended changes. The witnesses expressed the need to provide the industry with additional tools to aid in the marketing of onions and to improve the operation and administration of the order. Witnesses expressed their support of the committee's recommendation to add authority for supplemental rates of assessment for specified containers of onions. Additional funds generated from supplemental rates of assessment could be used for promotion of onions packed in specified containers. Witnesses also offered testimony in support of adding authority to charge interest and/or late payment charges on assessments not paid within a prescribed time period. This authority, if implemented, would provide an incentive for handlers to pay assessments in a timely manner and would be consistent with standard business practices. Witnesses addressed the need for adding authority to the order for marketing promotion, including paid advertising. This authority would enable the committee to engage in various types of promotional activities to assist in the marketing of its product, which could lead to greater market exposure and consumer demand for South Texas onions, thereby fostering improved grower returns. A USDA witness testified in support of tenure limitations as a way to broaden industry participation in the program. The USDA witness also presented testimony in support of periodic continuance referenda as a means of determining grower support for the order. At the conclusion of the hearing, the Administrative Law Judge stated that the final date for interested persons to file proposed findings and conclusions or written arguments and briefs based on the evidence received at the hearing would be August 15, 2006. If the hearing transcript was not posted on the Internet by July 15, 2006, the final date would be changed to 30 days after the date the hearing transcript was so posted. The transcript was posted prior to July 15; thus, the filing date remained at August 15, 2006. No briefs were filed. Material Issues The material issues presented on the record of hearing are as follows:
(1)Whether to amend the order to add authority for supplemental rates of assessment for specified containers of onions;
(2)Whether to amend the order to add authority for late payment and interest charges on assessments not paid within a prescribed time period;
(3)Whether to amend the order to add authority for the committee to engage in marketing promotion, including paid advertising activities;
(4)Whether to amend the order to limit the number of consecutive terms of office a person can serve as a member on the committee; and
(5)Whether to amend the order to require that continuance referenda be held every 6 years. Findings and Conclusions The following findings and conclusions on the material issues are based on evidence presented at the hearing and the record thereof. Material Issue Number 1—Supplemental Rates of Assessment Section 959.42 of the order should be amended to add authority to establish supplemental rates of assessment on specified containers of onions. That section currently authorizes establishment of assessment rates on containers of onions, but not supplemental rates based on the types of containers used in packing and shipping onions. The assessment rate is established through informal rulemaking after recommendation of the committee and implementation by USDA. Once established, handlers are required to pay an assessment to the committee based on the quantity of containers they ship. If authority to establish supplemental rates of assessment is added to the order, any supplemental rate would likewise require recommendation of the committee and implementation by USDA through informal rulemaking. Witnesses testified that the South Texas onion industry is geared primarily towards the fresh market. The product is typically packed and marketed in two types of containers. The lower quality (standard) product is packed and sold in 50-pound sacks, while the higher quality (premium) product is packed and sold in more appealing 40-pound cartons. The premium product is a milder, sweeter onion due to its lower pyruvic acid content. Onions are routinely tested to measure their pyruvic acid level prior to packing to ensure that the onions packed in cartons is in fact a premium quality product. According to record evidence, premium carton onions are typically sold at retail outlets as a higher-end product at relatively higher price levels as compared to standard bagged onions which are customarily sold to foodservice outlets at relatively lower price levels. Witnesses testified that the industry would like to increase sales and build demand for its higher value, premium product by promoting it and differentiating it from standard product. Witnesses also testified that the committee would like to expand the range of promotional opportunities available to promote its product, and that this proposal goes hand in hand with the proposal to allow marketing promotion, including paid advertising (Material Issue Number 3). The rationale and anticipated benefits of advertising and promotion are discussed later under Material Issue Number 3. According to record testimony, the funding of promotional activities for premium onions packed in cartons should be derived by applying a supplemental assessment rate to such product. Witnesses stated that any funds raised from a supplemental assessment should be used for promotion of that specific product. Testimony indicated that the primary benefits of promoting premium quality onions would accrue to those growers and handlers involved in producing and selling that product. Therefore, it would be more equitable for those benefiting from these activities to provide the funding, rather than using funding from a general assessment on all onions packed and sold. A witness testified that applying a supplemental assessment rate on carton onions would not pose any problems from an administrative standpoint. All regulated South Texas onions are required to be inspected by the Federal-State Inspection Service prior to shipment. The inspection certificates provide the basis for assessment billings, and the certificates indicate the numbers and types of containers used. Committee staff utilizes this information in its assessment billings. Testimony was also presented which addressed concerns regarding potential compliance issues with a supplemental assessment rate. It was hypothesized that handlers could circumvent a supplemental assessment rate by packing in bags prior to inspection, and then re-packing the product in cartons after the inspection was performed. Witnesses stated there would be no incentive for this to occur, since the costs associated with re-packing would far exceed any additional supplemental assessment rate incurred. The record evidence supports adding authority to the order to establish supplemental rates of assessment on specified containers of onions. In addition, the evidence supports applying such supplemental assessment funds towards programs designed to promote the product upon which the supplemental assessments would be collected. The regulatory language contained in the Notice of Hearing and presented at the hearing did not address this specific issue. However, based on the testimony received at the hearing, it is recommended that the proposed regulatory language be modified to specify that funds collected from a supplemental assessment rate be used for projects and activities related to the product upon which such assessments are collected. For the above reasons, it is recommended that § 959.42 be amended accordingly as modified. There was no testimony in opposition to this proposal. Material Issue Number 2—Authority for Interest and Late Payment Charges on Unpaid Assessments Section 959.42 of the order should be amended to include authority for the committee to charge interest and late payment fees for assessments not paid within a prescribed timeframe. That section of the order currently does not contain such authority. If such authority is added, informal rulemaking would be required to establish parameters for implementation, including applicable interest rates and late payment fees. Witnesses testified that adding such authority to the order would provide the committee with an additional tool to administer the assessment collection provisions of the order. Charging late fees and/or interest on assessments not paid within a prescribed time frame would provide an incentive for handlers to pay assessments in a timely manner. Further testimony stated that such fees would remove any financial advantage for those who do not pay on time while they benefit from committee programs. It would help create a level playing field for the industry. Record testimony reflects that late payment and interest charges on unpaid financial obligations are commonplace in the business world, and implementation of such charges would bring the committee's financial operations in line with standard business practices. Section 959.42 should thus be amended to include authority for the committee, with approval of the Secretary, to implement late payment and interest charges on assessments not paid within a prescribed time period. There was no testimony in opposition to this proposal. Material Issue Number 3—Authority for Marketing Promotion, Including Paid Advertising Section 959.48 of the order should be amended to include authority for marketing promotion, including paid advertising. Section 959.48 currently authorizes only production research, marketing research, and development activities. Adding authority for marketing promotion and paid advertising to the order would expand the promotional opportunities available to the committee to help market South Texas onions. Witnesses testified that the intent of this proposal is to allow the committee to engage in paid advertising promotional activities, should the committee so choose. As previously discussed under Material Issue Number 1, the industry believes it would be beneficial to promote its premium onions packed in cartons. Witnesses testified that it is becoming increasingly difficult to succeed in the produce industry due to domestic and foreign competition. In order to remain competitive and maintain a viable onion industry in South Texas, witnesses indicated that advertising and promotion is important to promote the best quality product available. Industry witnesses further testified that promotion of carton onions at the retail level could be undertaken which would help differentiate the product from bagged onions, and also differentiate Texas onions from onions produced in other competing geographical areas. Promotions would be designed to influence consumer's perceptions and increase awareness of the product. This in turn could lead to repeat purchases, thus building demand for the product. Successful promotion could lead to increased demand which in turn could lead to increased price levels, and the end result would be improved returns to producers and handlers of South Texas onions. Witnesses stated that the committee currently has limited financial resources and would not likely engage in a significant advertising campaign. It is more likely to partner with retailers in purchasing advertising space in newspapers and/or radio and television spots. This type of advertising has been proven to be an effective means of selling commodities and presents a cost effective method of advertising with limited resources. However, should the committee choose to devote adequate funding, it could also engage in other forms of advertising. Witnesses testified that the committee had been precluded from participating in these types of activities in the past due to constraints in the order authority. Witnesses further testified that any promotional activity the committee engages in must be fully vetted by the committee at public meetings, and the committee would only engage in those activities with the expectation that sales would increase and returns to handlers and producers would improve. The record supports adding authority for marketing promotion, including paid advertising, to § 959.48 of the order. There was no opposition testimony on this issue. Material Issue Number 4—Term Limits Section 959.23, Term of office, should be revised to establish a limit on the number of consecutive terms a person may serve on the committee. Currently, the term of office of each member and alternate member of the committee is two years. There are no provisions related to term limits in the marketing order. Members and alternates may serve on the committee until their respective successors are selected and have qualified, pursuant to the marketing order. The record shows that USDA proposed tenure requirements for committee members is a means to increase industry participation on the committee, provide for more diverse membership, provide the committee with new perspectives and ideas, and increase the number of individuals in the industry with committee experience. Experience with other marketing order programs suggests that a period of six years would be appropriate. Since the current term of office for committee members and alternates is two years, USDA is proposing that no member serve more than three consecutive two-year terms or a total of six years. This proposal for a limitation on tenure would not apply to alternates. Once a member has served on the committee for three consecutive terms, or six years, the member would be required to sit out for at least one year before being eligible to serve as a member again. The member could serve as an alternate during that time. Service on the committee prior to the effective date of this change would not apply to a member's term limitation. Also, a person who has served less than six consecutive years on the committee may not be selected for a new term if his or her total consecutive years on the committee at the end of that new term would exceed six years. There was no opposition testimony on this issue. Therefore, it is recommended that the order be amended to establish term limit requirements for committee members. Material Issue Number 5—Continuance Referenda Section 959.84, Termination, should be amended to require that continuance referenda be conducted every six years to ascertain industry support for the order. Currently, there is no provision in the marketing order that requires periodic continuance referenda. The record evidence indicates that growers should have an opportunity to periodically vote on whether the marketing order should continue. Continuance referenda provide an industry with a means to measure grower support for the marketing order program. Since marketing orders are designed to benefit growers, it follows that they should be afforded the opportunity to express whether they support the programs on a periodic basis. Experience has shown that marketing order programs need significant industry support to operate effectively. Under this proposal, USDA would consider termination of the marketing order if continuance is not favored by at least two-thirds of those voting, or at least two-thirds of the volume represented in the referendum. This is the same criteria as that for issuance of an order. Experience in recent years indicates that six years is an appropriate period to allow growers an opportunity to vote for continuance of the program. Therefore, the proposal sets forth that a referendum would be conducted six years after the effective date of this amendment and every sixth year thereafter. The proposed regulatory text set forth in the Notice of Hearing did not include the above-mentioned criteria the Department would consider in determining if the order should be continued or terminated. To provide clarity, the Department recommends including such criteria in the proposed amended regulatory text. The Department believes that growers should have an opportunity to periodically vote on whether the marketing order should continue. There was no opposition testimony on this issue. Accordingly, it is recommended that the order be amended to require a continuance referendum every six years, and that such amendment include criteria the Department would consider in determining if the order should be continued or terminated. USDA also proposed to make such changes as may be necessary to the order to conform to any amendment that may result from the hearing. No necessary conforming changes have been identified at this time. Small Business Considerations Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural growers have been defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms are defined as those with annual receipts of less than $6,500,000. There are approximately 114 growers of onions in the production area and approximately 38 handlers subject to regulation under the order. For the 2005-06 marketing year, the industry's 38 handlers shipped onions produced on 17,694 acres with the average and median volume handled being 182,148 and 174,437 fifty-pound equivalents, respectively. In terms of production value, total revenues for the 38 handlers were estimated to be $44.2 million, with average and median revenues being $1.16 million and $1.12 million, respectively. The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year. Based on the SBA's definition of small entities, the Committee estimates that all of the 38 handlers regulated by the order would be considered small entities if only their onion revenues are considered. However, revenues from other productive enterprises would likely push a number of these handlers above the $6,500,000 annual receipt threshold. Likewise, all of the 114 producers may be classified as small entities based on the SBA definition if only their revenue from onions is considered. The committee is comprised of 10 growers and 7 handlers, representing both large and small entities. Committee meetings are open to the public. All members are able to participate in committee deliberations and each has an equal vote in committee decisions. When the committee met on October 28, 2004, and recommended the proposed amendments, all views expressed by the members and others in attendance were considered. In addition, the hearing to receive evidence on the proposed changes was open to the public and all interested parties were invited and encouraged to participate and provide their views. The proposed amendments are intended to provide the committee and industry with additional tools to aid in the marketing of South Texas onions, and to improve the operation and administration of the order. Record evidence indicates that the proposed changes are intended to benefit all onion producers and handlers under the order, regardless of size. Witnesses testified that the impact of any of the proposals, if implemented, would be proportionate to individual grower's and handler's size, and that both small and large entities would benefit. The record shows that the proposal to include authority for supplemental rates of assessments on specified containers would not have a differential impact on small versus large growers and handlers. Any increased assessment costs would be based on the type and volume of containers shipped rather than the size of a grower or handler's operation. Any supplemental assessment rate would thus be applied proportionately to handlers. Onions that are packed and sold in cartons receive a higher return than onions packed and sold in bags or sacks. There is no known relationship between small versus large growers and handlers and the types of containers in which they pack their product. If onions packed in the higher value cartons were assessed at a higher rate, the assessment burden on the industry would be more proportionate to the revenues generated by the sales of product in the different types of containers. In absolute dollar terms, a handler packing and selling only carton onions would pay more in assessments than a handler packing and selling a comparable volume of bagged onions. However, witnesses testified that additional funds generated from the supplemental assessment rate on specified containers would be used to promote sales of the product packed and sold in those containers. Therefore, the benefits of promotion would more directly benefit those paying the supplemental assessment. As discussed later in this document, the benefits of such promotions would be expected to outweigh the additional costs. Assessment revenues generated from supplemental assessment rates on specified containers would not be used to subsidize the lower assessment revenues generated from sales of the lower value product, thereby ensuring equitability between handlers. The proposed amendment to authorize the committee to charge interest and/or late payment fees on assessments not paid within a prescribed time period would not have a differential impact on small and large entities. According to record testimony, late fees and interest changes, if implemented, would be based on handlers' timeliness of payments, regardless of size. A hearing witness familiar with the assessment collection operations under the order stated that there is no relationship between a handler's performance with regard to timely assessment payment and the size of the handler's business operation. Any increased costs would be borne only by those handlers that fail to pay their assessments in a timely manner. These potential costs would offset any potential advantage handlers could gain by not paying their assessments when due and would thus promote equity for all handlers. It would provide an incentive to pay on time. This proposed amendment is strictly a performance-based measure and would thus be applied based on handlers' performance with respect to their payment of assessments. Adding authority for paid advertising to the order would not disproportionately impact small business if such authority is implemented. Paid advertising activities would provide another tool the committee could use to promote its product. Paid advertising activities would be funded from handler assessments, which, as previously mentioned, are proportional to the volume of product shipped and thus proportional to the handler's relative size. Likewise, funding of the activities would be proportional. Promotional activities authorized under the order are generic in nature. Generic advertising and promotion attempts to influence consumer's preferences and perceptions about a product, and if successful, ultimately expands the demand for the product. Because generic promotion promotes a product category, it benefits all entities in the category, especially growers and handlers. As witnesses testified, specific benefits of promotion and advertising programs are difficult to quantify, and are especially difficult to estimate prior to engaging in the activities. However, if more product is ultimately sold, both large and small growers and handlers benefit. The proposed amendment to limit the number of consecutive terms of office that committee members may serve would increase industry participation on the committee by allowing more persons the opportunity to serve as members of the committee. It would also provide for more diverse membership, provide the committee with new perspectives and ideas, and increase the number of individuals in the industry with committee experience. There would be no additional cost as a result of this amendment. The proposal to require continuance referenda on a periodic basis to ascertain grower support for the order would allow growers to vote on whether to continue the operation of the program. This provides a means for those whom the order was intended to benefit with an opportunity to express their views regarding continuation of the marketing order. USDA would conduct the referenda, and thus USDA would bear the majority of any associated costs. Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impacts of the proposed amendments to the order on small entities. The record evidence is that while some minimal costs may occur, those costs would be outweighed by the benefits expected to accrue to the South Texas onion industry. In addition, any additional costs would be proportional to a handler's size and would not unduly or disproportionately impact small entities. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. The amendments are designed to improve the administration and operation of the order and to provide additional tools to assist in the marketing of South Texas onions. Committee meetings regarding these proposals as well as the hearing date and location were widely publicized throughout the Texas onion industry. All interested persons were invited to attend the meetings and the hearing and participate in deliberations on all issues. All Committee meetings and the hearing were public forums and all entities, both large and small, were provided the opportunity to express views on these issues. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate because these proposed changes have already been widely publicized and the committee and industry would like to avail themselves of the opportunity to implement the changes as soon as possible. All written exceptions timely received will be considered and a grower referendum will be conducted before these proposals are implemented. Paperwork Reduction Act Current information collection requirements for part 959 are approved by the Office of Management and Budget
(OMB)under OMB number 0581-0178, Vegetable and Specialty Crops. No changes in those requirements as a result of this proceeding are anticipated. Should any changes become necessary, they would be submitted to OMB for approval. As with other similar marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Civil Justice Reform The amendments to Marketing Order 959 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Department's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. General Findings The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.
(1)The marketing agreement and order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;
(2)The marketing agreement and order, as amended, and as hereby proposed to be further amended, regulate the handling of onions grown in the production area (designated counties in South Texas) in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order upon which a hearing has been held;
(3)The marketing agreement and order, as amended, and as hereby proposed to be further amended, are limited in their application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;
(4)The marketing agreement and order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of onions grown in the production area; and
(5)All handling of onions grown in the production area as defined in the marketing agreement and order, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce. List of Subjects in 7 CFR Part 959 Marketing agreements, Onions, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 959 is proposed to be amended as follows: PART 959—ONIONS GROWN IN SOUTH TEXAS 1. The authority citation for 7 CFR part 959 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 959.23 paragraph
(a)is revised to read as follows: § 959.23 Term of office.
(a)The term of office of committee members and their respective alternates shall be for two years and shall begin as of August 1 and end as of July 31. The terms shall be so determined that about one-half of the total committee membership shall terminate each year. Committee members shall not serve more than three consecutive terms. Members who have served for three consecutive terms may not serve as members for at least one year before becoming eligible to serve again. A person who has served less than six consecutive years on the committee may not be nominated to a new two-year term if his or her total consecutive years on the committee at the end of that new term would exceed six years. This limitation on the number of consecutive terms and years does not apply to service on the committee prior to the enactment of this provision and does not apply to alternates. 3. Revise paragraph
(b)of § 959.42 to read as follows: § 959.42 Assessments.
(b)Based upon the recommendation of the committee or other available data, the Secretary shall fix a base rate of assessment that handlers shall pay on all onions handled during each fiscal period. Upon recommendation of the committee, the Secretary may also fix supplemental rates on specified containers, including premium containers, identified by the committee and used in the production area: Provided, That any such supplemental assessment funds shall be used, to the extent practicable, for projects and activities related to the product upon which such assessments are collected. 4. Add a new paragraph
(e)to § 959.42 to read as follows: § 959.42 Assessments.
(e)If a handler does not pay assessments within the time prescribed by the committee, the assessment may be increased by a late payment charge and/or an interest rate charge at amounts prescribed by the committee with approval of the Secretary. 5. Revise § 959.48 to read as follows: § 959.48 Research and development. The committee, with approval of the Secretary, may establish or provide for the establishment of production research, marketing research, development projects, and marketing promotion, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of onions. The expenses of such projects shall be paid from funds collected pursuant to § 959.42. 6. In § 959.84, redesignate paragraph
(d)as paragraph
(e)and add a new paragraph
(d)to read as follows: § 959.84 Termination.
(d)The Secretary shall conduct a referendum within six years after the effective date of this paragraph and every sixth year thereafter to ascertain whether continuance is favored by producers. The Secretary would consider termination of this part if less than two-thirds of the growers voting in the referendum and growers of less than two-thirds of the volume of onions represented in the referendum favor continuance. Dated: March 29, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-6234 Filed 4-5-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27785; Directorate Identifier 2006-NM-267-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 Airplanes and Model ERJ 190 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with [certain] EPIC software load[s] * * *. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected * * *. If another failure occurs on the second FGCS channel, the result may be a command hardover by the autopilot. A command hardover is a sudden roll, pitch, or yaw movement, which could result in reduced controllability of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 7, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27785; Directorate Identifier 2006-NM-267-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Age ncia Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directives 2006-11-02 and 2006-11-03, both effective November 16, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI for Model ERJ 170 airplanes states: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with EPIC software load 17.3 or 17.5. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected or latent in subsequent flights. If another failure occurs on the second FGCS channel, the result may be a command hardover by the autopilot. The MCAI for Model ERJ 190 airplanes states: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with EPIC software load 4.3, 4.4 or 4.5. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected or latent in subsequent flights. If another failure occurs on the second FGCS channel, the result may be a command hardover by the autopilot. A command hardover is a sudden roll, pitch, or yaw movement, which could result in reduced controllability of the airplane. The MCAIs mandate a functional test of the flight guidance control system channels engagement. The corrective action is replacement of the actuator input-output processor if necessary. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information EMBRAER has issued Service Bulletins 170-22-0003 and 190-22-0002, both dated November 9, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 98 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $15,680, or $160 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2007-27785; Directorate Identifier 2006-NM-267-AD. Comments Due Date
(a)We must receive comments by May 7, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to all EMBRAER Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes, and Model ERJ 190-100 STD, -100 LR, and -100 IGW airplanes; certificated in any category. Subject
(d)Auto Flight. Reason
(e)The mandatory continuing airworthiness information
(MCAI)for Model ERJ 170 airplanes states: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with EPIC software load 17.3 or 17.5. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected or latent in subsequent flights. If another failure occurs on the second FGCS channel, the result may be a command hardover by the autopilot. The MCAI for Model ERJ 190 airplanes states: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with EPIC software load 4.3, 4.4 or 4.5. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected or latent in subsequent flights. If another failure occurs on the second FGCS channel, the result may be a command hardover by the autopilot. A command hardover is a sudden roll, pitch, or yaw movement, which could result in reduced controllability of the airplane. The MCAIs mandate a functional test of the flight guidance control system channels engagement. The corrective action is replacement of the actuator input-output processor if necessary. Actions and Compliance
(f)Unless already done, do the following actions: Within 300 flight hours after the effective date of this AD, and thereafter at intervals not to exceed 600 flight hours, carry out a functional test in accordance with EMBRAER Service Bulletin 170-22-0003 or EMBRAER Service Bulletin 190-22-0002, both dated November 9, 2006, as applicable, to check the Flight Guidance Control System
(FGCS)channels engagement, and, before further flight, do all applicable replacements of the actuator input-output processor in accordance with the applicable service bulletin. Note 1: For the purpose of this AD, a functional check is: “A quantitative check to determine if one or more functions of an item perform within specified limits.” FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)*The following provisions also apply to this AD:*
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, *Attn:* Todd Thompson, Aerospace Engineer, 1601 Lind Avenue, SW., Renton, Washington 98057-3356, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Brazilian Airworthiness Directives 2006-11-02 and 2006-11-03, both effective November 16, 2006; and EMBRAER Service Bulletins 170-22-0003 and 190-22-0002, both dated November 9, 2006; for related information. Issued in Renton, Washington, on March 28, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-6445 Filed 4-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27346; Directorate Identifier 2007-NE-07-AD] RIN 2120-AA64 Airworthiness Directives; 90XX and 92XX Sicma Aero Seat Passenger Seats AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Cracks have been found in central spreaders P/N 92-000100-200-1 or P/N 92-000101-200-1. This may heavily affect the structural integrity of the seat. Failure of the central spreaders could result in injury to an occupant during emergency conditions. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 7, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Jeffrey Lee, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate; 12 New England Executive Park, Burlington, MA 01803; telephone 781-238-7161; fax 781-238-7170. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27346; Directorate Identifier 2007-NE-07-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Direction Generale De L'Aviation Civile (DGAC), which is the aviation authority for France, has issued French Airworthiness Directive 2002-504(AB), dated October 12, 2002, (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Cracks have been found in central spreaders P/N 92-000100-200-1 or P/N 92-000101-200-1. This may heavily affect the structural integrity of the seat. Failure of the central spreaders could result in injury to an occupant during emergency conditions. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Sicma Aero Seat has issued Service Bulletin
(SB)92-25-005, revision 3, dated January 17, 2003. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the proposed AD. These requirements, if ultimately adopted, will take precedence over the actions copied from the MCAI. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 3,283 products of U.S. registry. We also estimate that it would take about 6.017 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $206.75 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,259,064. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Sicma Aero Seat:** Docket No. FAA-2007-27346; Directorate Identifier 2007-NE-07-AD. Comments Due Date
(a)We must receive comments by May 7, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to 90XX and 92XX Sicma Aero Seat passenger seats. These products are installed on, but not limited to, Aerospatiale ATR42 and ATR72 airplanes. Reason
(d)Cracks have been found in central spreaders P/N 92-000100-200-1 or P/N 92-000101-200-1. This may heavily affect the structural integrity of the seat. Failure of the central spreaders could result in injury to an occupant during emergency conditions. Actions and Compliance
(e)Before 500 flight hours after the effective date of this AD, unless already done, do the following actions:
(1)Perform a visual inspection of central spreaders P/N 92-000100-200-1 or P/N 92-000101-200-1 of the affected seats using the Accomplishment Instructions “Checking Procedures” of Sicma Aero Seat Service Bulletin
(SB)92-25-005, revision 3, dated January 17, 2003. If no crack is found, repeat this inspection at intervals not exceeding 500 flight hours.
(2)Type 1, 2, and 3 cracks are defined in the Accomplishment Instructions “Checking Procedures” of Sicma Aero Seat SB 92-25-005, revision 3, dated January 17, 2003.
(i)If a type 1 crack is found, before 6 months or before 500 flight hours, whichever comes first, check the crack to determine that it did not enlarge to a type 2 or type 3 crack, install doublers P/N 00-6536, and record this modification by using Part One; B “Seat identification” of Sicma SB 92-25-005, revision 3, dated January 17, 2003.
(ii)If a type 2 or 3 crack is found, before further flight, replace the affected central spreader with a new one with the same part number, equipped with doublers P/N 00-6536.
(iii)If a new spreader is unavailable, do a temporary repair by installing doublers P/N 00-6536. This temporary repair may remain in place no longer than 500 flight hours or six months, whichever comes first. After removing the temporary repair, install a new spreader with the same part number equipped with doublers P/N 00-6536, and record this modification by following the instructions in paragraph Part Three; B “Seat identification” of Sicma SB 92-25-005, revision 3, dated January 17, 2003.
(3)If not already done, before March 31, 2010, install doublers P/N 00-6536 on central spreaders of affected seats. Record this modification by following instructions in Part Two; B “Seat identification” of Sicma SB 92-25-005, revision 3, dated January 17, 2003. FAA AD Differences
(f)This AD differs from the DGAC mandatory continuing airworthiness information
(MCAI)and/or service information in the terminating action date for installing doublers P/N 00-6536 on central spreaders of affected seats. The MCAI requires these doublers to be installed by December 31, 2005. This AD, written in 2007, requires the doublers to be installed by March 31, 2010. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Boston Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* None. Related Information
(h)Refer to MCAI DGAC Airworthiness Directive 2002-504(AB), dated October 12, 2002, and Sicma Aero Seat Service Bulletin 92-25-005, revision 3, dated January 17, 2003, for related information.
(i)Contact Jeffrey Lee, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate; 12 New England Executive Park, Burlington, MA 01803; e-mail: *Jeffery.lee@faa.gov* ; telephone 781-238-7161; fax 781-238-7170, for more information about this AD. Issued in Burlington, Massachusetts, on April 2, 2007. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-6478 Filed 4-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Part 291 RIN 1010-AD17 Open and Nondiscriminatory Movement of Oil and Gas as Required by the Outer Continental Shelf Lands Act AGENCY: Minerals Management Service (MMS), Interior. ACTION: Proposed rule. SUMMARY: The Minerals Management Service
(MMS)is proposing new regulations that would establish a process for a shipper transporting oil or gas production from Federal leases on the Outer Continental Shelf
(OCS)to follow if it believes it has been denied open and nondiscriminatory access to pipelines on the OCS. The rule would provide MMS with tools to ensure that pipeline companies provide open and nondiscriminatory access to their pipelines. DATES: MMS will consider all comments received by June 5, 2007. MMS will begin reviewing comments then and may not fully consider comments received after June 5, 2007. Comments on the reporting burden in this rulemaking should be submitted by May 7, 2007. ADDRESSES: Mail or hand-carry comments to: Director, Minerals Management Service, Attention: Policy and Management Improvement, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001. You may submit comments by personal or messenger delivery to: 1849 C Street, NW., Room 4223, Washington, DC 20240-0001. You may also submit comments by any of the following methods. Please use “Open and Nondiscriminatory Movement” and the approved Regulatory Identification Number
(RIN)1010-AD17 as an identifier in your message. We will not return materials submitted as part of comments. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions on the Web site for submitting comments. • E-mail MMS at *rules.comments@mms.gov.* Use the RIN in the subject line. Include your name and return address in your e-mail message and mark your message for return receipt. • *Fax:* 202-208-4891. Identify with the RIN. • Please submit comments on any aspect of the reporting burden in this proposed rule to the Office of Management and Budget
(OMB)either by e-mail ( *OIRA_DOCKET@omb.eop.gov* ) or by fax
(202)395-6566 directly to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for the Department of the Interior. Please provide MMS with a copy of your comments so that we can summarize all written comments and address them in the final rule. FOR FURTHER INFORMATION CONTACT: Scott Ellis, Policy and Appeals Division, at
(303)231-3652, *Fax:*
(303)233-2225, or e-mail at *Scott.Ellis@mms.gov.* SUPPLEMENTARY INFORMATION: I. Background Section 5(e) of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331-1356, states that rights-of-way through the submerged lands of the OCS, whether or not such lands are included in a mineral lease maintained or issued pursuant to that subchapter, may be granted by the Secretary of the Interior for pipeline purposes for the transportation of oil, natural gas, sulphur, or other minerals. The right-of-way may be granted in accordance with such regulations and upon such conditions as may be prescribed by the Secretary of the Interior, including the express condition that oil or gas pipelines shall transport or purchase, without discrimination, oil or natural gas produced from submerged lands or OCS lands. 43 U.S.C. 1334(e). Section 5(f) of the OCSLA mandates that every permit, license, easement, or right-of-way granted to a pipeline for transportation of oil or gas on or across the OCS must require that the pipeline “provide open and nondiscriminatory access to both owner and nonowner shippers.” 43 U.S.C. 1334(f). The Federal Energy Regulatory Commission (FERC), exercising authority it claimed under the OCSLA, issued regulations requiring companies providing natural gas transportation service to periodically file information with FERC concerning their pricing and service structures. See Order No. 639, FERC Stats. & Regs.
(CCH)¶ 31,097 at 31,514 (April 10, 2000); Order No. 639-A, FERC Stats. & Regs.
(CCH)¶ 31,103 (July 26, 2000). FERC believed that the resulting transparency would enhance competitive and open access to gas transportation. Id. Several of the subject companies sought judicial relief from the orders, alleging that FERC did not have authority under OCSLA to issue the regulations. On October 10, 2003, the U. S. Court of Appeals for the District of Columbia Circuit, in *Williams Cos.* v. *FERC* , 345 F.3d 910 (D.C. Cir. 2003), found that sections 5(e) and
(f)of the OCSLA, 43 U.S.C. 1334(e) and (f), grant the FERC only limited authority to enforce open access rules on the OCS. The court found that enforcement of the requirement to provide open and nondiscriminatory access “would be at the hands of the obligee of the conditions, the Secretary of the Interior (or possibly other persons that the conditions might specify).” Id. at 913-914. Specifically, the Court of Appeals concluded that FERC's role under 43 U.S.C. 1334(e) is essentially limited to what are commonly known as “ratable take” orders and capacity expansion orders. According to the court's decision, FERC's authority does not include the regulatory oversight described in FERC Orders 639 and 639-A. As a result, the FERC regulations issued under 18 CFR part 330 are *ultra vires* , and therefore not enforceable. MMS believes the court's decision means that the OCSLA provides the Secretary of the Interior the authority to issue and enforce rules to assure open and nondiscriminatory access to pipelines. 43 U.S.C. 1334(e) and (f)(1)(A). To determine whether a need exists for regulations to assure open and nondiscriminatory access, MMS issued an Advance Notice of Proposed Rulemaking (ANPRM). See 69 FR 19137 (April 12, 2004). Subsequently, MMS held public meetings in Houston, Washington DC, and New Orleans to hear oral comments. MMS received written comments from 17 respondents. After considering all comments, MMS is proceeding with this proposed rule. The ANPRM requested discussion and comments on several topics. The commenters generally fell into two groups—shippers/producers and pipelines/transportation service providers. In most instances, these commenter groups submitted opposing views. However, on some issues there was general consensus. Specific topics regarding the issues raised in the ANPRM comments are addressed below in the applicable sections of this proposed rulemaking. II. Section-by-Section Analysis, 30 CFR Part 291 MMS proposes to include a new part 291 in its regulations. This part would implement complaint procedures and informal alternative processes to address allegations that a shipper has been denied open and nondiscriminatory access to a pipeline contrary to sections 5(e) and
(f)of the OCSLA. Pursuant to section 27 of the OCSLA, 43 U.S.C. 1353, and section 342 of the Energy Policy Act of 2005, the United States is entitled to take its royalty in-kind, rather than in value. MMS's Royalty-in-Kind
(RIK)production marketing process includes negotiating rates for transportation of the production to market. Some of that transportation will likely occur on pipelines subject to this rulemaking. This may raise the question of whether MMS, as a shipper of RIK production, can fairly decide other shipper's appeals alleging violations of the open and nondiscriminatory access provisions of OCSLA. Furthermore, it also may raise the issue of whether MMS can fairly decide a complaint brought by the RIK division. The MMS believes that this situation is similar to cases in which the MMS Director decides lessees' appeals of MMS Minerals Revenue Management
(MRM)orders. Those appeals are filed under 30 CFR part 290, subpart B. Normally those orders require a company to pay monies. The MMS Director has delegated her authority to decide those appeals to the Associate Director, Policy and Management Improvement (PMI). MRM and PMI are separate programs that both report to the MMS Director. Any decisions regarding complaints on open access would also be decided by PMI. Appellants in those MRM cases may appeal any adverse MMS decision to the Interior Board of Land Appeals
(IBLA)under 30 CFR part 290. Appellants' complaints of lack of due process or conflict of interest under this system have never been upheld. See *e.g.* Santa Fe Pacific Railroad Co., 90 IBLA 200, 220 (1986); Davis Exploration, 112 IBLA 254, 260 (1989); Transco Exploration Co. & TXP Operating Co., 110 IBLA 282, 311-12 (1989); W&T Offshore, Inc., 148 IBLA 323, 355-59 (1999). Appellants under these proposed rules at § 291.112 would be able to avail themselves of the same IBLA review as current MRM appeals. Because the process proposed in this rulemaking is the same as that upheld repeatedly by the Department, the MMS believes that the proposed process will properly protect parties' rights. Section 291.100 What Is the Purpose of This Part? This section would explain the purposes of this part. This part discusses the procedures for filing a complaint with the MMS Director alleging that a grantee or transporter, as defined below, has denied a shipper of production from the OCS open and nondiscriminatory access to a pipeline. The complaint procedures would include an explanation of the process that MMS would use to determine whether violations of the requirements of the OCSLA have occurred, and to remedy these violations. This part also would provide alternative informal means of reconciling pipeline access disputes through either Hotline-assisted procedures or Alternative Dispute Resolution (ADR). Section 291.101 What Definitions Apply to This Part? This section would define terms applicable to this part. MMS would not define “open access” or “nondiscriminatory access” in this proposed rulemaking. Based upon the comments received in response to the ANPRM and at the public meetings, MMS believes “open access” and “nondiscriminatory access” are fact-specific terms and their application is best left to be determined during adjudication of individual situations. MMS intends to apply a reasonableness standard when deciding complaints alleging violations of the OCSLA's open and nondiscriminatory access requirements. While a reasonableness standard is inherently broad, it provides the flexibility necessary to address the various and unique situations that may arise. MMS believes that trying to encompass the plethora of circumstances that could present themselves would result in a definition that is unmanageable and would ultimately result in resorting to exceptions to accommodate unforeseen circumstances. Like FERC's “comparability standard” used for its electric “open access” and “undue discrimination” adjudications, MMS's reasonableness standard may include comparability as an element when appropriate. However, MMS is not bound by, and does not intend to necessarily base its determinations of reasonableness on previous FERC decisions. “Accessory” would have the same definition as in 30 CFR part 250, subpart J—i.e., a platform, a major subsea manifold, or similar subsea structure attached to a right-of-way
(ROW)pipeline to support pump stations, compressors, manifolds, etc. The site used for an accessory is part of the pipeline ROW grant. In the final rule, MMS may prescribe a definition different than that in 30 CFR part 250, subpart J. “Appurtenance” would have the same definition as in 30 CFR part 250, subpart J—i.e., equipment, device, apparatus, or other object attached to a horizontal component or riser. Examples include anodes, valves, flanges, fittings, umbilicals, subsea manifolds, templates, pipeline end modules, pipeline end terminals, anode sleds, other sleds, and jumpers (other than jumpers connecting subsea wells to manifolds). MMS is currently in the process of rewriting its regulations at 30 CFR part 250, subpart J. Those regulations are on a different schedule than this effort. We are proposing to use the same definitions as in 30 CFR part 250, subpart J, in an effort to assure consistency between the two rules and eliminate any ambiguities. In the final rule, MMS may prescribe a definition different than that in 30 CFR part 250, subpart J. “FERC pipeline” would mean any pipeline under the jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas Act, 15 U.S.C. 717-717z, or the Department of Energy Organization Act, 49 U.S.C. 60502. Although MMS believes it has jurisdiction over such pipelines for purposes of OCSLA's open and nondiscriminatory access requirement (see definition of “OCSLA pipelines” discussed below), it is necessary to distinguish FERC pipelines because, as discussed further below, MMS is proposing in this rulemaking to presume that FERC pipelines provide open and nondiscriminatory access. “Grantee” would mean any person or assignee to whom MMS has issued a pipeline permit, license, easement, right-of-way, or other grant of authority for transportation of oil or gas on or across the OCS under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p), and any person who has an assignment of a permit, license, easement, right-of-way or other grant of authority, or who has an assignment of any rights subject to any of those grants of authority. MMS is proposing this definition because section 5(f) of the OCSLA requires that “every permit, license, easement, right-of-way or other grant of authority for the transportation by pipeline on or across the outer Continental Shelf of oil or gas shall require that the pipeline * * * provide open and nondiscriminatory access to both owner and nonowner shippers.” Therefore, persons to whom MMS has granted such rights, and their assignees, would be grantees under the proposed rule, against whom shippers could file a complaint. When Congress enacted the Energy Policy Act of 2005, it amended the OCSLA by adding subsection
(p)to 43 U.S.C. 1337. (Energy Policy Act of 2005, section 388(a).) MMS has existing authority over all OCS pipelines for which it has already issued a pipeline permit, license, easement, right-of-way, or other grant of authority for transportation of oil or gas across the OCS. However, subsection 388(a) of the Energy Policy Act of 2005 provides the Department of the Interior with additional authority to grant new pipeline easements or rights-of way on the OCS for transportation of oil or natural gas not already authorized by statute. “IBLA” would mean the Interior Board of Land Appeals. “OCSLA pipeline” would mean oil or gas pipelines for which MMS has issued a permit, license, easement, right-of-way, or other grant of authority under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p). Again, this is the definition found in section 5(f) of the OCSLA quoted above. Any such pipelines would be under the jurisdiction of MMS. See also *Williams Cos.* v. *FERC* , 345 F.3d 910, 913-14 (D.C. Cir. 2003), wherein the court found that enforcement of the statutory requirement “would be at the hands of the obligee of the conditions, the Secretary of the Interior (or possibly other persons that the conditions might specify).” In response to the ANPRM, MMS received a broad range of comments regarding the Department of the Interior's
(DOI)authority under the OCSLA. Both shippers and service providers expressed opinions concerning the actual authority granted to the DOI by the OCSLA. Areas of concern included jurisdiction over production-related facilities on offshore platforms; the regulation of pipelines subject to the Natural Gas Act and the Interstate Commerce Act; the exemption of deepwater ports from the OCSLA's open access requirements; the application of the OCSLA to both oil and gas pipelines; and the spectrum of pipelines that the DOI might regulate and whether any of these pipelines might be exempted from regulation. MMS believes that its authority to require that pipelines provide open and nondiscriminatory access to both owner and nonowner shippers extends to every pipeline transporting oil or gas on or across the OCS under a permit, license, easement, right-of-way, or other grant of authority, including leases. This includes right-of-way grantees, lessees, pipeline owners, pipeline operators, and all of their assignees, even when those pipelines are also regulated by FERC. One commenter stated that it believes that pipelines associated with deepwater ports are exempt from the open and nondiscriminatory access requirements of OCSLA. MMS believes that the commenter is correct in part. Our rationale is included in section III of this preamble and discusses why pipelines under the Deepwater Port Act are exempt from the pipeline access provisions of OCSLA. “Outer Continental Shelf” would have the same definition as in the OCSLA, 43 U.S.C. 1331—i.e., all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 2 of the Submerged Lands Act, 43 U.S.C. 1301, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control. “Party” would mean any person who files a complaint, any person who files an answer, and MMS. We are proposing to include MMS as a party because under this proposed rule, MMS has both enforcement and adjudicatory functions. It is not merely an impartial arbiter. For example, if MMS orders remedial action, MMS will be in the best position to defend that action. “Person” would mean an individual, corporation, government entity, partnership, association (including a trust or limited liability company), consortium, or joint venture (when established as a separate entity). “Pipeline” would mean the piping, risers, accessories and appurtenances installed for the purpose of transporting oil or gas. The requirements outlined in this proposed rule are intended to apply only to platforms and facilities directly related to the transportation of oil and gas production. MMS believes that under the plain language of OCSLA, production-related facilities on platforms, which include processing equipment for separating and treating production prior to transportation, are not covered by the open and nondiscriminatory access provisions. Therefore, MMS would only include appurtenances and accessories, as defined above, in the definition of pipeline. “Serve” would mean personally delivering a copy of the document to a person, or sending the document by U.S. mail or private delivery services that provide proof of delivery (such as return receipt requested). MMS is proposing that the party submitting a complaint as well as the answerer to a complaint provide a copy of its submittal to the other parties, including MMS. In order to provide proof of service and timely processing, MMS is proposing that correspondence be delivered by U.S. mail or private delivery services that provide proof of delivery (such as return receipt requested). MMS is requesting comments on whether there are other methods of delivery assurance that MMS should consider, including electronic transmission. “Shipper” would mean a person who contracts or wants to contract with a grantee or transporter to transport oil or gas through the grantee's or transporter's pipeline. “Transportation” would mean, for purposes of this part only, the movement of oil or gas through an OCSLA pipeline. The ANPRM requested discussion concerning whether, for the purposes of this rule, there is a need to define “transportation” and “gathering” differently than those terms are defined in MMS royalty valuation regulations or FERC regulations. MMS is specifically proposing to use this definition of “transportation” in this part only to avoid any conflict with existing definitions of “transportation” or “gathering” in MMS's royalty valuation regulations in 30 CFR part 206 or FERC regulations. MMS is not proposing a definition of “gathering” in this proposed rule because we believe that MMS has jurisdiction over all pipelines for which it has issued a permit, license, easement, right-of-way, or other grant of authority, whether or not those pipelines would be considered “gathering” lines under the FERC's regulations. “Transporter” would mean, for purposes of this part only, any person who owns or operates an OCSLA oil or gas pipeline, for the reasons discussed in the definition of “transportation.” Section 291.102 May I Call the MMS Hotline to Informally Resolve an Allegation That Open and Nondiscriminatory Access Was Denied? With respect to informal resolution of disputes, comments received in response to the ANPRM generally recommended that MMS implement a light-handed approach. Therefore, MMS is proposing in this section to establish a toll-free Hotline to receive allegations of denial of open and nondiscriminatory access, and to allow shippers and transporters to request ADR in § 291.103. In the ANPRM, MMS requested discussion concerning the usefulness of a Hotline to informally attempt to resolve shippers' and service providers' concerns regarding perceived instances of open and nondiscriminatory access violations. In general, shippers and service providers endorsed the concept of a Hotline as an informal mechanism for dispute identification and possible resolution. In this proposed rule, MMS would establish a Hotline to receive informal allegations of denial of open access or discrimination in access in violation of the OCSLA. The Hotline's primary purpose would be to gather facts, evaluate allegations of denial of open access or discrimination in access, and recommend resolution options, including alternative dispute resolution (ADR). Proposed § 291.102 would allow a shipper to attempt to informally resolve an allegation that it was denied open and nondiscriminatory access by calling the MMS Hotline. You (the shipper) could make the call to the MMS Hotline anonymously, and to the extent permitted by law, the MMS Hotline staff would treat all information it obtains as non-public and confidential. The proposed rule explains that the MMS Hotline staff would informally seek information from you and any grantee or transporter, as appropriate, and would attempt to resolve disputes without formal complaint proceedings. MMS agrees with commenters that the requirements for reporting a dispute using the Hotline should be kept to a minimum. Required information would include the location, pipeline, and a brief explanation of the reason(s) for believing that open access has been denied or that discrimination in access has occurred. The MMS Hotline staff could provide information to you and give informal oral advice. However, the advice given would not be binding on MMS or DOI. You could terminate your use of the MMS Hotline procedure at any time. If discussions assisted by the MMS Hotline staff were unsuccessful at resolving the matter, you could file a formal complaint under this part after notifying the MMS Hotline that you wish to file a formal complaint. Section 291.103 May I Use Alternative Dispute Resolution to Informally Resolve an Allegation That Open and Nondiscriminatory Access Was Denied? Another informal option would allow the persons involved in the dispute to agree to non-binding ADR at their expense. ADR may be requested either by calling the MMS Hotline or by contacting the MMS Associate Director for Policy and Management Improvement. Under the proposed rule, either before or after a complaint is filed, persons involved in a dispute could elect to use one of the following to resolve their dispute: • A contracted ADR provider; • The DOI's Office of Collaborative Action and Dispute Resolution (CADR); or • MMS employees trained in ADR facilitation techniques and certified by the CADR. ADR facilitation is a service that uniquely benefits the participants by providing an opportunity for the participants to resolve their dispute without incurring substantial litigation costs. Thus, MMS is proposing to require participants in an ADR process to pay their respective shares of all costs and fees associated with any contracted or Departmental ADR provider. MMS proposes to recover its costs for providing an MMS facilitator. The costs of providing ADR facilitation are readily calculated and tracked. Thus, MMS is proposing to require participants in an ADR process to pay the actual costs of the service on a case-by-case basis. These costs would include both direct and indirect costs. Direct costs include such things as labor, material, and equipment. For example, direct costs would include the costs of the facilitator's time and any other MMS personnel time spent on related secretarial or other tasks. In addition to direct costs, MMS would recover indirect costs, such as rent and overhead. MMS would calculate indirect costs by applying to the direct cost figure an indirect cost ratio already determined in its accounting system. Authority for cost recovery is provided by the Independent Offices Appropriation Act of 1952, 31 U.S.C. 9701. This Act is a general law applicable Government-wide, that provides MMS authority to recover the costs of providing services to the non-federal sector. It requires implementation through rulemaking. There are several policy documents that provide guidance on the process of charging for service costs. These policy documents are in the Office of Management and Budget
(OMB)Circular A-25, “User Charges,” and the Department of the Interior Departmental Manual (DM), 330 DM 1.3 & 6.4, “Cost Recovery” and “User Charges.” The general policy that governs charges for services provided states that a charge “will be assessed against each identifiable recipient for special benefits derived from federal activities beyond those received by the general public” (OMB Circular A-25). The Departmental Manual mirrors this policy (330 DM 1.3 A.). Section 291.104 Who May File a Complaint? This section would explain who may file a complaint alleging a violation of the requirements of OCSLA section 5(e) and
(f)that grantees and transporters provide open and nondiscriminatory access. MMS would propose to limit the filing of a complaint to any shipper who believes it has been denied open and nondiscriminatory access to an OCSLA pipeline. MMS intends to defer to the FERC on pipelines under the jurisdiction of the Natural Gas Act or Interstate Commerce Act. This deferral is based on MMS's presumption that because pipelines under the Natural Gas Act and Interstate Commerce Act are regulated by the FERC, “open access” and “nondiscriminatory access” are being assured. Therefore, MMS would not consider complaints regarding a FERC pipeline that, for example, originates from a lease on the OCS and then transports production onshore to an adjacent state. MMS welcomes comments on the treatment of pipelines over which FERC exercises its Natural Gas Act or Interstate Commerce Act jurisdiction. Section 291.105 What Must a Complaint Contain? This section would explain what a complaint must contain. In the ANPRM, MMS requested comments on the type of complaints it might receive. Review of the comments indicated that the types of complaints MMS might receive generally fell into two categories:
(1)Rate discrimination and
(2)denial of access. It became clear to MMS from the statements at the public meetings and written comments to the ANPRM that each complaint would be very fact-specific. Thus, MMS is not proposing to define categories of complaints it might receive in this proposed rulemaking. MMS would generally define a “complaint” to mean a comprehensive written brief stating the legal and factual basis for the allegation that a shipper was denied open and nondiscriminatory access with supporting material. Paragraph
(a)would specify that a complaint must clearly identify the action or inaction which is alleged to violate 43 U.S.C. 1334(e) or (f)(1)(A). For example, in the case of rate discrimination, a shipper would have to allege that it was discriminated against by being charged a higher rate than other similarly situated shippers. General statements of dissatisfaction with high rates would not suffice. Paragraph
(b)would require a complaint to explain how the action or inaction violates 43 U.S.C. 1334(e) or (f)(1)(A)—i.e., how the action or inaction denied the shipper open access or resulted in discrimination in access. Paragraph
(c)would require a complaint to set forth how the action or inaction affects the complainant's interests. In particular, it would require a complainant to make a good faith effort to quantify the financial impact or burden (if any) created as a result of the action or inaction. It also would require a complaint to explain other impacts of the action or inaction, such as practical, operational, or other non-financial impacts. This would be met by a statement of the harm the denial of open access or discrimination in access caused the shipper. Paragraph
(d)would require a complainant to make a good faith effort to quantify the financial impact or burden (if any) created as a result of the action or inaction. Paragraph
(e)would require that the complaint request specific relief or remedy. For a discussion of some of the specific remedies MMS believes are available, see the discussion of § 291.112 below. Paragraph
(f)would require that a complaint include all documents that support the facts in the complaint. MMS expects a complainant to provide all documents in its possession or which it can otherwise obtain. These documents should include, at a minimum, the relevant contracts and any affidavits necessary to support any particular factual allegations. In the ANPRM, MMS requested comments on whether interested parties would be more likely to participate in one type of complaint resolution process over another and what circumstances might affect this decision. Based on the responses, as discussed above, MMS is proposing informal processes to address disputes by utilizing an MMS Hotline process or ADR discussed in §§ 291.102-291.103, and a formal process to address complaints described in this section and §§ 209.106-209.114 below. With respect to the formal process that MMS is proposing, shipper comments generally supported a formal regulatory process to address complaints, and pipeline comments generally did not. Specifically, some pipeline commenters questioned MMS's authority under the OCSLA to issue regulations concerning complaint resolution. Those commenters believe the OCSLA only provides for judicial review of such complaints under 43 U.S.C. 1349-1350. MMS disagrees. The OCSLA specifically grants the Secretary of the Interior the authority to “prescribe such rules and regulations as may be necessary to carry out the provisions of [the OCSLA].” 43 U.S.C. 1334(a). Nothing in section 1349 or section 1350 limits that rulemaking authority. Nor is there anything in section 1334(e) or
(f)that exempts those provisions from the general grant of rulemaking authority. Moreover, based on comments received at the public meetings and in response to the ANPRM, MMS believes a formal process is necessary to assure that its decision to enforce the requirements of the OCSLA will be followed, and to give both parties a reason to participate in the informal process. Without the potential of some consequences, there is no reason for a pipeline owner to participate in a voluntary or an administrative process. Therefore, in §§ 291.105-291.114, MMS is proposing a formal complaint process. In its consideration of the comments MMS received in response to the ANPRM, MMS recognized other possible formal complaint resolution processes. One of these would be to establish a process similar to the process employed by FERC as set forth in 18 CFR part 385. This process has the advantage of being familiar to both shippers and service providers. However, a FERC-mirrored process would impose new requirements on the DOI, including administrative hearing and appeals requirements. MMS is requesting comments on this or other possible variants. Section 291.106 How Do I File a Complaint? This section would explain the process for filing a complaint. Paragraph
(a)would explain that shippers filing complaints regarding OCSLA pipelines must file complaints with the MMS Director. As discussed above, decisions would be issued by the MMS Policy and Management Improvement office (PMI). Paragraph
(b)would provide that the party filing the complaint must pay a nonrefundable processing fee of $7,500 to MMS. Under paragraph (c), you would have to serve your complaint on all parties named in the complaint. See discussion of “Serve” in the definitions section above. Since MMS has not been involved in the processing of complaints of this type, it is interested in comments regarding whether there should be time limits placed on the filing of complaints following an action by a grantee or transporter denying open and nondiscriminatory access. MMS recognizes that the information necessary to effectively answer a complaint may become stale or even non-existent. On the other hand, should the mere passage of time be a limiting factor on whether a shipper can submit a complaint? MMS is requesting comments on this issue and may prescribe a time limit in the final rule. Section 291.107 How Do I Answer a Complaint? The proposed rule would provide that, after a complaint is filed, those on whom a complaint was served could then submit a formal written answer responding to the allegations in the complaint. Paragraph
(a)of this section would explain that if you have been served a complaint under § 291.106(b), you may file an answer to the complaint within 60 days of your receipt of the complaint. If you file your answer after 60 days of your receipt of the complaint, MMS would have discretion not to consider your answer. The proposed rule would explain in paragraph
(b)that for purposes of this part, an answer would mean a comprehensive written brief stating the legal and factual basis refuting the allegation in the complaint that you denied open access or nondiscriminatory access, together with supporting material. Paragraph (b)(1) would explain that you must attach a copy of the complaint to your answer or reference the assigned MMS docket number. This is to assist MMS in case management. Paragraph (b)(2) would require the answer to explain why the action or inaction alleged in the complaint does not violate 43 U.S.C. 1334(e) or (f)(1)(A). Paragraph (b)(3) would require answers to include all documents that support the facts in the answer in possession of, or otherwise obtainable by, the answerer, including, but not limited to, contracts and any affidavits necessary to support factual allegations. MMS is requesting comments on whether there is any other specific information that the answer should include. Paragraph (b)(4) would require that a copy of the answer be provided to all parties named in the complaint including the complainant. Section 291.108 How Do I Pay the Processing Fee? This section would provide that you must pay your processing fees to the MMS Policy and Management Improvement office. Under paragraph
(a)you would have to pay the processing fee or seek a fee waiver or reduction under § 291.109. The party filing the complaint must pay a nonrefundable processing fee of $7,500 to MMS. You would be required to pay the nonrefundable processing fee by Electronic Funds Transfer, unless you requested, and MMS authorized, payment by check or an alternative method before the date the processing fee would be due. The payment would have to include various specified forms of identification in order to properly account for the fee. We request comments on the amount of the processing fee, payment by Electronic Funds Transfer, and what form of identification should be included with fees. The Department's authority to recover its costs for the processing of complaints involving offshore pipeline access is the Independent Offices Appropriation Act of 1952, 31 U.S.C. 9701 (originally codified at 31 U.S.C. 483a) (IOAA). “Office of Management and Budget
(OMB)Circular No. A-25, 58 FR 38144 (adopted 1959; revised July 15, 1993), establishes federal policy regarding user charges under the IOAA.” Interior Solicitor Opinion M-36987 (December 5, 1996). Further, the Department of the Interior Departmental Manual
(DM)mandates cost recovery for special services: “Departmental policy requires * * * that a charge, which recovers the bureau or office costs, be imposed for services which provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which accrue to the public at large.” Id. (quoting 346 DM 1.2 A.); Cf. *Federal Power Comm'n* v. *New England Power Co.* , 415 U.S. 345, 350
(1974)(describing the OMB Circular test at 6.a.(4) when no charge should be made as the proper construction of the IOAA). Thus, as part of this proposed rulemaking, we analyzed a previously proposed appeals rule's processing fees (that rule is discussed immediately below) for reasonableness according to the factors in IOAA section 501(b), 31 U.S.C. 9701(b) and the guidance contained in the DM and OMB's Circular No. A-25. In promulgating regulations for similar processes (to complaints) for appeals of MMS-issued orders, the October 28, 1996, proposed appeals regulation also proposed payment of a processing fee. 61 FR 33607 (1996). Several comments to that proposed appeals rule questioned MMS's authority to impose such fees. A similar concern logically exists for the processing of complaints here, even though the public has not yet had the opportunity to convey their comments. However, in addition to the authority under the IOAA, the United States Court of Appeals for the District of Columbia Circuit has upheld charging processing fees for administrative appeals. *Ayuda, Inc.* v. *Attorney General* , 848 F.2d 1297 (D.C. Cir. 1988). See also, *United Transportation Union-Illinois Legislative Board* v. *Surface Transportation Board* , No. 97-1038, 1997 U.S. App. LEXIS 37560, (D.C. Cir., Nov. 10, 1997) (decision published in table case format without opinion, reaffirming *Ayuda* ) (reported in full text format at 1997 U.S. App. LEXIS 37560). In *Ayuda* the Circuit Court held that processing fees for administrative appeals “are for a ‘service or thing of value' [under the IOAA, 31 U.S.C. 9701(a),] which provides the recipients with a special benefit.” 848 F.2d at 1301. Unlike the circumstances and precedents established in *Ayuda* , the party seeking compliance (the complainant) under this rule normally is not the regulated party. However, there is no question that the complainant receives a “special benefit” from the services performed by MMS in processing the formal complaint. Therefore, this rule proposes that the party filing the complaint will pay the fee. We believe that this arrangement would fairly protect regulated parties from frivolous complaints while it would also ensure compliance with statutory and regulatory requirements. We request comments on the proposed fee. The four factors in the IOAA are “(1) fair; and
(2)based on—(A) the costs to the Government;
(B)the value of the service or thing to the recipient;
(C)public policy or interest served; and
(D)other relevant facts.” The factors mirror four of the six “reasonableness factors” contained in section 304(b) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734(b). The “reasonableness factors set out in FLPMA are:
(a)“Actual costs (exclusive of management overhead);”
(b)“the monetary value of the rights or privileges sought by the applicant;”
(c)“the efficiency to the government processing involved;”
(d)“that portion of the cost incurred for the benefit of the general public interest rather than for the exclusive benefit of the applicant;”
(e)“the public service provided;” and
(f)“other factors relevant to determining the reasonableness of the costs.” Although the factors contained in FLPMA apply only to onshore lands, because of the similarity between the factors used under both statutes and of the open-ended “other relevant facts” factor contained in IOAA, the Department believes that using the factors contained in section 304(b) to determine fees is eminently “fair” under the authority of the IOAA. For the reasons set forth above, MMS proposes to implement the IOAA by applying each of the FLPMA factors for complaints processed under this proposed rule. We first estimated the actual cost for processing the complaint, and then considered each of the other FLPMA factors to see if any of them might cause the fee to be set at less than actual cost. We then considered whether any of the remaining factors acted as an enhancing factor that would mitigate against setting the fees at less than actual cost. We then decided the amount of the fee, which cannot be more than the actual processing cost. This method results in fees that are based upon the actual processing costs. Accordingly, for formal pipeline access complaints, the fee is proposed to be set at $7,500 and to be paid by the party filing the complaint. Factor (a)—Actual Costs Actual costs means the financial measure of resources expended or used by MMS to process a complaint, including, but not limited to the costs to research and write the MMS Director's decision or take any other relevant action. Actual costs include both direct and indirect costs, exclusive of management overhead. Section 304(b) of FLPMA requires that management overhead be excluded from chargeable costs. Because we are implementing the IOAA by applying the FLPMA factors, management overhead costs are excluded from this analysis. MMS calculated the direct cost component of the actual costs to process a complaint by totaling agency expenditures for labor, material, and equipment usage. Based on the time it now takes to complete an appeals decision, we estimated the time it would take to perform the various phases of the proposed complaint process. We then multiplied the hours by $80, the average of MMS's personnel, material and equipment usage costs. MMS calculated the indirect cost component of actual costs by dividing the indirect costs such as rent and overhead associated with this process by the total program cost to arrive at an indirect cost percentage of 18.5%. MMS then multiplied the direct costs by 18.5% and added that figure to its direct costs to determine its total actual costs. This method of calculating costs is a generally accepted by both the public and private sectors. Our method of establishing actual costs involved estimating the average cost of processing an individual complaint. We concluded that while it might be possible to track costs and consider the reasonableness factors on a case-by-case basis, doing so would be time consuming and expensive. MMS's costs to process a complaint under this proposed rule would include the cost to consider the complaint in various phases at MMS. The first phase would be the MMS Policy and Management Improvement office performing the following functions:
(1)Receiving and date stamping each document;
(2)Reviewing each complaint for completeness;
(3)Docketing the complaint by entering the information into a computer-based tracking system;
(4)Preparing and sending an acknowledgment letter or a denial letter as appropriate;
(5)Preparing a complaint file; and
(6)Reviewing each answer for completeness. We estimated based on current processes that the average time to complete this phase would be 4 hours. The next phase would be researching and drafting the Director's decision. We estimated the average staff-hours the Policy and Management Improvement office currently spends on each appeal of MMS orders (discussed above) that results in a decision by the MMS Director to be 100 hours. However, unlike the current process where the appeals analyst only reviews a Statement of Reasons, in this process, the analyst would have to review a complaint and an answer, request additional information, as necessary, and review that information. The Policy and Management Improvement office also anticipates that initially it will be necessary for that Division to consult with MMS's Offshore Minerals Management program and Minerals Revenue Management program as part of the decision-making process. This is because the appeals analyst may need to use those programs' expertise to reach a decision. Accordingly, MMS estimates that the additional time it will need to process at least the first 5 complaints and answers, compared with an appeal of MMS-issued orders, will be 40 hours, for a total of 140 hours for this phase. Thus, the total estimated average hours for MMS to spend on these phases is 4 hours for the docketing of the complaint and 140 hours for the preparing the MMS Director's decision, for a total of 144 hours per complaint. This estimate is based on current MMS time requirements for completing similar tasks. Using an estimate of $80 per hour based on an average of MMS's personnel, material and equipment-usage costs, we estimate the average direct cost burden for these requests would be $11,520 ($80/hour × 144 hours). MMS's indirect costs for the requests is $2,131 per appeal (18.5% indirect cost rate × $11,520) resulting in total estimated actual costs of $13,561 per average complaint. Factor (b)—Monetary Value of the Rights and Privileges Sought The monetary value of rights and privileges sought means the objective worth of a complaint, in financial terms, to the complainant. The value to a complainant is gaining open or nondiscriminatory access to a pipeline if MMS determines that the complainant has been denied open or nondiscriminatory access. See e.g., *Ayuda Inc.* v. *Attorney General* , 848 F.2d 1297 at 1301
(1988)(value of having an incorrect action corrected). However, the monetary value of having MMS remedy a violation of OCSLA's requirement to provide open and nondiscriminatory access will vary depending on the specific facts of each complaint, which MMS cannot accurately estimate in advance of deciding any complaints. Moreover, most complaints will decide a legal question regarding what MMS believes is open access or discrimination that imparts value to both shippers and transporters, so the monetary value is not merely equal to the complainant's alleged loss. Therefore, we rejected the idea of trying to calculate monetary value on a case-by-case basis for purposes of determining whether to increase or decrease the recovery of actual costs based on this factor. Instead, we have determined that consideration of this factor should include an examination of equitable considerations related to monetary value, rather than precise figures. However, given the nature of these complaints, we believe the monetary value to complainants of gaining access or having discriminatory actions cease would be great. A major equitable consideration is whether the level of cost reimbursement could burden the complainant to such an extent that the complaint would actually end up being of no monetary value to the complainant whatsoever. However, because we are providing a mechanism for fee waiver or reduction, and believe the monetary value of the relief sought would be considerably greater than the cost of filing a complaint in a vast majority of cases, we decided that this factor should not cause fees to be set below actual costs. Factor (c)—Efficiency to the Government Processing Involved Efficiency to the Government processing means the ability of the United States to process a complaint with a minimum of waste, expense, and effort. Implicit in this factor is the establishment of a cost recovery process that does not cost more to operate than is necessary, and does not unduly increase the costs to be recovered. As noted in the above section on actual costs, we have estimated the cost to the government for the complaint process proposed in this rulemaking. However, we believe it would be inefficient to determine an adjustment factor to increase or decrease the recovery of actual costs on a case-by-case basis. The procedures that we would use to process a complaint would be based on standardized steps for similar MMS transactions in order to eliminate duplication and extraneous procedures. However, some procedures would require processes in addition to those used under the current appeals process. These additional processes were accounted for under factor
(a)above. Factor (d)—Cost Incurred for the Benefit of the General Public Interest The cost incurred for the benefit of the general public interest (public benefit) means funds the United States expends, in connection with the processing of a complaint, for studies or data collection determined to have value or utility to the United States or the general public separate and apart from the document processing. It is important to note that this factor addresses funds expended in connection with a complaint. There is another level of public benefit that includes studies which we are required, by statute or regulation, to perform regardless of whether a complaint is received. The costs of such studies are excluded from any cost recovery calculations from the outset. Therefore, no reduction from costs recovered is necessary in relation to these studies. We concluded that the processing of a complaint would not as a rule produce studies or data collection that might benefit the public to any appreciable degree. Therefore, any possible benefits of such studies to the public are balanced by their possible benefits to the complainant. Accordingly, we made no adjustment to the fee recovered based on this factor. Factor (e)—Public Service Provided Public service provided means direct benefits with significant public value that are expected as a result of a complaint. This factor is thus concerned with the benefit resulting from the ultimate decision in the complaint, while the previous factor related to the benefits of the document processing itself. Deciding a complaint provides a public service because the primary function of the complaint process is to ensure open and nondiscriminatory access as mandated by Congress in sections 1334
(e)and (f)(1)(A). The value of the benefit to the public is great because ensuring open and nondiscriminatory access encourages production in new fields and prevents shut-in of existing wells. These in turn would further Congress' stated purpose of expeditious and orderly development of the OCS, 43 U.S.C. 1332, and the requirement that lessees diligently produce oil and gas from the lease. 43 U.S.C. 1337(b)(4). Furthermore, comments received from the County of Santa Barbara stated that requiring open and nondiscriminatory access may decrease environmental degradation. “Santa Barbara's policies * * * require equitable and nondiscriminatory access to onshore segments of pipelines that carry offshore oil and gas * * *. Application of these policies since the mid-1980's has substantially reduced the environmental impacts that would occur if every offshore operator installed their individual set of pipelines * * *.” We agree. Therefore, we believe there would be a public benefit from avoiding potential environmental degradation. For these reasons, we decided that it was reasonable to set fees below actual costs on the basis of this factor. Factor (f)—Other Factors The final reasonableness factor is other factors relevant to determining the reasonableness of the costs. Under this factor, we considered fees that other government entities charge for processing similar complaints (see October 28, 1996, proposed rulemaking, 61 FR at 55609). Also, the paucity of anticipated complaints skews the programmatic costs for individual complaints. As discussed above, it will take the Policy and Management Improvement office an additional 40 hours to process at least the first 5 complaints and answers than to process an appeal of a Minerals Revenue Management program order. However, after the Policy and Management Improvement office develops the expertise and case law, the time necessary to process a complaint should decrease. Accordingly, the first 5 complainants would bear the entire costs of the extra time necessary for the Policy and Management Improvement office to develop the expertise. We believe that it is more reasonable to spread those costs out over time, and, thus, reasonable to set fees below actual costs based on this factor. After considering all of the reasonableness factors, we concluded that the factors of public service
(e)and other factors
(f)make it reasonable to set the fees for filing a complaint at $7,500 instead of at the actual costs. None of the other factors mitigate against setting the fees at less than actual costs. Moreover, because the proposed fee of $7,500 would meet the reasonableness factors of FLPMA, they would also be fair under the IOAA. We invite comments concerning the proposed processing fee. Specifically, the MMS is requesting comments on the effect the proposed fees could have on the filing of complaints. Section 291.109 Can I Ask for a Reduced Processing Fee? This section would allow complainants to request a fee waiver or reduction. We invite comments regarding the advisability of including procedures in the proposed rule for granting fee waivers or reductions. We have included fee waiver and reduction provisions because we believe that the payment of the $7,500 fee may cause undue hardship on small independent oil and gas producers/shippers and thus impede their access to the complaint process. While waiver procedures for complaints and appeals exist in some other agencies, they may not be applicable in instances such as this where there is an informal processing-fee free Hotline alternative and we have already reduced the fee to half of our actual costs. For example, waiver provisions in Department of Transportation Surface Transportation Board regulations apply to a fee schedule that includes fees ranging up to $23,300 for the filing of a formal complaint 49 CFR 1002.2(c)-(f). See United Transportation Union-Illinois Legislative Board versus Surface Transportation Board, No. 97-1038, 1997 U.S. App. LEXIS 37560, (D.C. Cir. Nov. 10, 1997) (upheld a Surface Transportation Board fee for handling appeals, in part, because it “provided a waiver mechanism for fees that would cause undue hardship”). Therefore, we invite comment on whether we should retain a fee waiver or reduction provision. Section 291.110 Who May MMS Require To Produce Additional Information? The ANPRM requested comments on whether MMS could achieve its mandate of assuring open and nondiscriminatory access in the absence of routine information collection and the dissemination of some or all of that information. The comments received varied widely. Some commenters stated that the OCSLA does not provide MMS with the authority to require reporting. Others believed that MMS should implement the same type of information collection that the FERC had mandated in Orders 639 and 639-A. MMS believes that without knowing the specifics of the number and type of instances of violations of the open and nondiscriminatory access requirements, the routine submittal of information is not justified at this time. In addition, MMS is not proposing to include reporting requirements because, if a shipper alleges discrimination in a complaint against a pipeline, it will need to provide documentation supporting that allegation. Likewise, it will be in a pipeline's best interest to provide documentation refuting the shipper's allegations of discrimination. Finally, because MMS is not defining “open access” or “nondiscriminatory access” in the rulemaking, and because MMS believes complaints extend beyond rate issues, MMS anticipates that it will not need the majority of information FERC was gathering under Orders 639 and 639-A. Therefore, in the proposed rule, MMS does not propose any reporting requirements by service providers operating pipelines on the OCS similar to what the FERC imposed in Orders 639 and 639-A. Rather, in paragraph
(a)of this section, the proposed rule would allow MMS to require any lessee, operator of a lease or unit, shipper, grantee, or transporter (whether it is a shipper or not) to provide additional information that MMS believes is necessary to make a decision on whether open access or nondiscriminatory access was denied. MMS welcomes comments on whether it should be able to require information from persons who are not parties. Paragraph
(b)would provide for enforcement of such requests if a party fails to provide additional information MMS requests under paragraph (a). Enforcement could include the assessment of civil penalties under 30 CFR part 250, subpart N, and dismissal of a complaint or factual findings adverse to a party on factual issues to which the information sought is relevant. Paragraph
(c)would provide for enforcement of such requests if a lessee, operator of a lease or unit, shipper, grantee, or transporter, that is not a party fails to provide additional information MMS requests under paragraph (a). Enforcement may result in the assessment of civil penalties under 30 CFR part 250, subpart N. Section 291.111 How May I Request That MMS Treat Information I Provide as Confidential? This section would allow any person who provides documents to MMS under this part to claim that some or all of the information contained in the particular document is confidential. Confidentiality under this section would include documents that are exempt from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552, or protected by the Trade Secrets Act, 18 U.S.C. 1905, or otherwise exempt by law from public disclosure. In the ANPRM, MMS requested comments on how it should treat any collected information. MMS believes that in order to encourage participation in informal complaints, it is necessary to treat all submitted information as confidential to the extent allowed by law. Conversations with FERC reinforced this belief. With respect to information submitted during the formal complaint resolution process, MMS is proposing the submittal of complete and redacted versions of information in order to maintain the confidentiality of information when appropriate if a party requests that information be kept confidential and explains why it should be treated as confidential. MMS is proposing to retain the right to determine whether any claim of confidentiality is required by law. MMS would notify the person claiming confidentiality of its determination and to the extent permitted by law, would provide an opportunity to respond prior to any public disclosure. Section 291.112 How Will MMS Decide Whether a Grantee or Transporter Has Provided Open and Nondiscriminatory Access? The MMS Director would review the pleadings and issue a decision including appropriate remedial actions as discussed below. MMS's Royalty-in-Kind
(RIK)production marketing process includes negotiating rates for transportation. Some of that transportation will likely occur on pipelines subject to this rulemaking and presents the possibility that the RIK division may file a complaint. As discussed above, this raises the question of whether MMS, as a shipper of RIK production, can fairly decide other shipper's appeals alleging violations of the open and nondiscriminatory access provisions of OCSLA. See the discussion in Section II that concludes that MMS can fairly decide other shipper's appeals. Section 291.113 What Actions May MMS Take To Remedy Denial of Open and Nondiscriminatory Access? If the MMS Director decides under § 291.111 that the grantee or transporter has not provided open and nondiscriminatory access, then the decision would describe the actions MMS would take to remedy the denial of access. Actions MMS could take include ordering grantees and transporters to provide open and nondiscriminatory access to the complainant and assessing civil penalties of up to $10,000 per day under 30 CFR part 250, subpart N, for failure to provide open and nondiscriminatory access. Penalties would begin to accrue 60 days after the grantee or transporter received the order to provide access under this paragraph. The proposal also would allow MMS to request that the Department of Justice institute civil actions for a temporary restraining order, injunction, or other appropriate remedy to enforce the open and nondiscriminatory access requirements of 43 U.S.C. 1334(e) and (f)(1)(A), or to forfeit the right-of-way grant under 43 U.S.C. 1334(e). Section 291.114 How Do I Appeal to the IBLA? MMS is proposing to allow any party adversely affected by a final decision of the MMS Director under this part to appeal to IBLA under the procedures provided in 43 CFR part 4, subpart E. Section 291.115 How Do I Exhaust Administrative Remedies? MMS is proposing to allow appeals to IBLA. If the MMS Director issues a decision, and does not expressly make the decision effective upon its issuance, then a party would need to appeal the decision to IBLA in order to exhaust administrative remedies. On the other hand, if the MMS Director expressly makes the decision effective upon issuance or if the Assistant Secretary for Land and Minerals Management issues or concurs in a decision under this part, then that is the Department's final decision. No further appeals would be needed to exhaust your administrative remedies, and none would be available. III. Jurisdiction Under the Deepwater Port Act The Deepwater Port Act of 1974 defines a deepwater port as including “all components and equipment, *including pipelines* , pumping stations, service platforms, buoys, mooring lines, and similar facilities to the extent they are located seaward of the high water mark.” 33 U.S.C. 1502(9) (emphasis added). Under 33 U.S.C. 1503(b), the Secretary of Transportation “issue[s] a license for the ownership, construction, and operation of a deepwater port”—including pipelines. Although the Secretary of the Interior, through MMS, issues a right-of-way across the seabed for a pipeline that transports production from a deepwater port, the Secretary of Transportation authorizes the construction and regulates the operation of the pipeline. However, the definition of “deepwater port” with respect to natural gas specifically limits the pipelines and other facilities to those “proposed or approved for construction and operation as part of a deepwater port, * * * and do[es] not include interconnecting facilities.” 33 U.S.C. 1502(9)(C). Consequently, only those dedicated pipeline segments constructed and operated solely as part of the deepwater port facility would be exempt from OCSLA jurisdiction. The Deepwater Port Act further specifies what common carrier obligations do and do not apply to pipelines that are part of deepwater ports. Section 1507 provides in relevant part:
(a)Status of deepwater ports and storage facilities. A deepwater port and a storage facility serviced directly by that deepwater port shall operate as a common carrier under applicable provisions of part I of the Interstate Commerce Act and subtitle IV of title 49, United States Code [ *49 U.S.C. § 10101* et seq.], *and shall accept, transport, or convey without discrimination all oil delivered to the deepwater port* with respect to which its license is issued, except as provided by subsection
(b)of this section.
(b)Discrimination prohibition; exceptions. A licensee is not discriminating under this section and is not subject to common carrier regulations under subsection
(a)of this section when that licensee—
(1)Is subject to effective competition for the transportation of oil from alternative transportation systems; and
(2)Sets its rates, fees, charges, and conditions of service on the basis of competition, giving consideration to other relevant business factors such as the market value of services provided, licensee's cost of operation, and the licensee's investment in the deepwater port and a storage facility, and components thereof, serviced directly by that deepwater port.
(c)Enforcement, suspension, or termination proceedings. When the Secretary has reason to believe that a licensee is not in compliance with this section, the Secretary shall commence an appropriate proceeding before the Federal Energy Regulatory Commission or request the Attorney General to take appropriate steps to enforce compliance with this section and, when appropriate, to secure the imposition of appropriate sanctions. In addition, the Secretary may suspend or revoke the license of a licensee not complying with its obligations under this section.
(d)Managed access. * Subsections
(a)and
(b)shall not apply to deepwater ports for natural gas. A licensee of a deepwater port for natural gas, or an affiliate thereof, may exclusively utilize the entire capacity of the deepwater port and storage facilities for the acceptance, transport, storage, regasification, or conveyance of natural gas produced, processed, marketed, or otherwise obtained by agreement by such licensee or its affiliates. The licensee may make unused capacity of the deepwater port and storage facilities available to other persons, pursuant to reasonable terms and conditions imposed by the licensee, if such use does not otherwise interfere in any way with the acceptance, transport, storage, regasification, or conveyance of natural gas produced, processed, marketed, or otherwise obtained by agreement by such licensee or its affiliate. * 33 U.S.C. 1507 (emphasis added). In other words, if a deepwater port accepts crude oil, it must operate as a common carrier and provide nondiscriminatory access to all crude oil delivered to the port unless the conditions in subsection
(b)are met. If a deepwater port is required to operate as a common carrier for crude oil and is not meeting that obligation, enforcement of that obligation rests with the Secretary of Transportation and FERC under subsection (c), not the Secretary of the Interior. If a deepwater port is a natural gas port—i.e., a liquefied natural gas
(LNG)port—it is not required to operate as a common carrier and is not required to provide non-discriminatory access to other parties. By the express terms of subsection (d), the licensee of the port and its affiliates may use the port (and, therefore, the pipeline) exclusively. The licensee may also make any unused capacity available to others if it chooses to do so, “pursuant to reasonable terms and conditions *imposed by the licensee* ” (emphasis added), not by the Secretary of the Interior. This provision does not convert the deepwater port or its pipeline into a common carrier if it chooses to make capacity available to others. These express specific provisions control over the general provision in the OCSLA at 43 U.S.C. 1334(f)(1)(A) that pipelines on or across the OCS provide open and non-discriminatory access to both owner and non-owner shippers. The Deepwater Port Act does contemplate the possibility that pipelines that are part of deepwater ports may be used to transport production that originates on the OCS. The congressional declaration of policy in the Deepwater Port Act, at 33 U.S.C. 1501, provides that the congressional purposes in enacting the statute include:
(5)Promote the construction and operation of deepwater ports as a safe and effective means of importing oil or natural gas into the United States *and transporting oil or natural gas from the outer continental shelf* while minimizing tanker traffic and the risks attendant thereto; and
(6)*Promote oil or natural gas production on the outer continental shelf by affording an economic and safe means of transportation of outer continental shelf oil or natural gas to the United States mainland* . (Emphasis added.) Thus, Congress was aware when it enacted the Deepwater Port Act and subsequent amendments that production from outside the OCS could be brought in to land through a port located on the OCS. It was also aware that some production from the OCS might be transported through pipelines that are part of the deepwater port facility. In enacting the common carrier provisions and exclusions in that statute, Congress distinguished between products (oil versus gas), but did not distinguish between production brought in from outside the OCS and production from the OCS. Had Congress intended to apply the general requirements of 43 U.S.C. 1334(f)(1)(A) to that portion of production transported through a deepwater port's pipeline that originates from the OCS, notwithstanding the express specific provisions in the Deepwater Port Act, it presumably would have included specific language stating that intent. It is possible that a pipeline constructed as part of a deepwater port may connect the deepwater port with an existing OCS pipeline that is subject to MMS's jurisdiction and the open and nondiscriminatory access requirements of 43 U.S.C. 1334(f)(1)(A) implemented in this rule. In such a case, connection with the OCS pipeline would not make segments of the OCS pipeline downstream of the interconnect point exempt from open and nondiscriminatory access requirements. MMS does not believe that Congress intended in the Deepwater Port Act to override the Secretary of the Interior's authority in this context. The provisions of this proposed rule would apply to all segments of the OCS pipeline, including those downstream of the interconnect point. They would not apply to the pipeline connecting the deepwater port with the OCS pipeline. IV. Requested Comments Summary MMS has specifically requested comments on various topics in the preamble. Those specific requests are summarized here: 1. Whether MMS should consider other methods of delivery assurance, e.g., electronic transmission, to satisfy parties' complaint and answer notification requirements. 2. Whether MMS should use a formal complaint resolution method other than that proposed. 3. Whether MMS's proposed treatment of OCSLA pipelines over which FERC exercises its Natural Gas Act or Interstate Commerce Act jurisdiction is adequate. 4. Whether MMS should impose a time limit on the filing of complaints. 5. Whether an answer in response to a complaint should include specific information other than that required by the proposed rule. 6. Whether the amount of the processing fee is fair, whether the payment by electronic funds transfer is feasible, and what form of identification should be used to submit fees to MMS. 7. Whether the proposed processing fees will materially affect the filing of complaints and whether the value of using the complaints process to complainants, transporters, and others of using the complaint process is fairly presented. 8. Whether processing fee waiver and reduction provisions should be retained. 9. Whether MMS should obtain information from persons who are not parties to a complaint. 10. Whether MMS should automatically stay each decision pending an appeal to the IBLA. V. Procedural Matters Public Comment MMS's practice is to make comments, including the names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their names and home addresses, etc. But if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present a rationale for withholding this information that demonstrates that disclosure would constitute a clearly unwarranted invasion of personal privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documented circumstances, this information will be released. MMS will not consider anonymous comments. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Regulatory Planning and Review (Executive Order 12866) This is not a significant rule under Executive Order 12866 and does not require review by the Office of Management and Budget (OMB). a. The proposed rule would not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. From the inception of Order 639, FERC received a few formal complaints and approximately ten informal hotline complaints regarding open and nondiscriminatory access. Based upon the number of OCSLA open and nondiscriminatory complaints FERC received, and the comments MMS received at the public workshops and to the ANPRM, MMS expects to receive approximately five formal complaints and fifty calls to the MMS Hotline in the first year, and fewer in subsequent years once the regulations have been applied in a series of cases. MMS conducted an economic analysis to estimate the net benefits from implementation of the proposed regulations. An analytic baseline was established to represent the current state of shipper and pipeline transactions on the OCS. Projected costs and benefits from the proposed complaint program are incremental with respect to the baseline. Results from the analysis indicate that net benefits to shippers/producers and the public could range from $0.12 million to $0.59 million, with a most likely estimate of $0.23 million for the projected number of complaints in the first year and fewer in subsequent years. MMS decisions favorable to complainants would increase revenue received by shippers/producers, and royalty payments would also increase. These benefits would be offset by the cost of compliance with the rule, e.g., ADR, complaint filings, litigation, etc., and a decrease in tariff revenue paid to pipelines. Baseline benefits to shippers/producers and the public, before subtracting compliance costs and decreases in tariff revenue, would be within the range of $4.6 million to $28.5 million, with a most likely estimate of $14.0 million. The proposed rule would not create an adverse effect upon the ability of the United States offshore oil and gas industry to compete in the world marketplace, nor would the proposal adversely affect investment or employment factors locally. As noted during the public meetings held by MMS, it appears that the industry has been able to resolve all but a very few of the type of complaints which the proposed rule would address through the normal course of finding, developing and marketing resources on the OCS. Because of this history, MMS concludes that the economic effects of the rule would not be significant. In disputed cases, intervention by MMS could result in the shifting of costs and revenue among the parties. Business transactions could be altered in a way that ensures shippers can move production. Conceptually, the economy would benefit if additional reserves are recovered and sold. Regardless, MMS concludes that direct annual costs to industry for the entire proposed rule would not exceed the $100 million threshold. b. This proposed rule would not create inconsistencies with other agencies' actions. The rule does not change the relationships of the OCS oil and gas leasing program with other agencies. These relationships are usually encompassed in agreements and memoranda of understanding that would not change with this proposed rule. By deferring to the FERC when FERC has retained and exercised jurisdiction, MMS has structured the proposed rule to ensure that it would not create any inconsistencies with FERC's actions. c. This proposed rule would not affect entitlements, grants, loan programs, or the rights and obligations of their recipients. The rule would simply include requirements for the filing and processing of complaints concerning open and nondiscriminatory access on the OCS. d. This rule would not raise novel legal or policy issues. The rule would merely set out the rules for filing complaints, investigating, and adjudicating matters related to the requirements for pipelines to offer open and nondiscriminatory transportation of OCS production. Regulatory Flexibility
(RF)Act MMS has determined that this proposed rule would not have a significant economic effect on a substantial number of small entities. While the rule would affect some small entities, the economic effects of the rule would not be significant. The regulated community for this proposal consists of companies specializing in leasing, developing, and operating offshore oil and gas properties, and providing pipeline services. Of the small companies to be affected by the proposed rule, almost all producers that ship production on or across the OCS are represented by the North American Industry Classification System (NAICS) code 211111 (crude petroleum and natural gas extraction). Within this group, approximately 90 of 130 are small companies. Those small companies providing pipeline transportation are represented primarily by NAICS codes 486110 (crude petroleum pipelines) and 486210 (natural gas transmission pipelines). Within this second group, approximately 180 of 220 are small companies. This proposed rule is unlikely to impose a net cost on any small company shipping production, because the option to file a complaint is a discretionary act and a company is unlikely to file a complaint unless it perceives the benefits will exceed the cost. In the event that a small pipeline company is found to be in violation of the open and non-discriminatory access provisions of OCSLA, the violation would presumably be resolved by some adjustment of the business relationship between the parties to the dispute. In these cases, the producers and shippers would benefit financially, and the public could benefit from conservation of reserves. On the other hand, pipelines would be obliged to accept less profitable business arrangements. If the fraction of small to large companies providing pipeline services is applied to the number of complaints expected in the first year, MMS estimates 4-5 cases would be processed that could affect the profitability of pipeline service providers fitting the small company criteria. However, any relief provided to a shipper would bring the rates to where they should have been under the OCSLA. Thus, there would not be a significant impact on a substantial number of small entities under the RF Act (5 U.S.C. 601 *et seq.* ). The proposed rule will not cause the business practices of any of these companies to change. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free 1-888-REG-FAIR (1-888-734-3247). You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the Department of the Interior. Small Business Regulatory Enforcement Fairness Act (SBREFA) This proposed rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. The proposed rule would not change significantly the cost of transporting oil or gas on pipelines on the OCS. Indeed, the effect of the proposed rule should be to decrease transportation costs overall. Based on economic analysis: a. This rule would not have an annual effect on the economy of $100 million or more. As indicated in MMS's analysis, the economic impact to industry would be minimal. The proposed rule would have a minor economic effect on the offshore oil and gas industries. b. This rule would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. This rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. Paperwork Reduction Act
(PRA)of 1995 The proposed rule would require a new information collection (IC), and MMS is submitting an IC request to OMB for review and approval under section 3507(d) of the PRA. The title of the collection of information is “30 CFR Part 291, Subpart A, Open and Nondiscriminatory Movement of Oil and Gas.” The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves the collection of information and assigns a control number, you would not be required to respond. There are approximately 220 potential respondents. The frequency of reporting and recordkeeping is generally on occasion. Responses are required to obtain or retain benefits. The IC does not include questions of a sensitive nature. MMS will protect information considered proprietary according to the Federal Oil and Gas Royalty Management Act of 1982, as amended (30 U.S.C. 1733), the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR Part 2), as well as documents protected by the Trade Secrets Act, 18 U.S.C. 1905. The rule proposes to implement complaint procedures to address allegations that a shipper has been denied open and nondiscriminatory access to a pipeline as sections 5(e) and
(f)of the OCSLA require. MMS intends to use the submitted information to determine whether the shipper has been denied open and nondiscriminatory access. The complaint information will be provided to the alleged offending party. Informal resolution is also provided as an option. Shippers submitting a complaint will be asked to identify the alleged action or inaction, explain how the action violates 43 U.S.C. 1334(e) or
(f)and how the action affects their business interests, state the relief or remedy requested, and provide supporting documentation. MMS estimates that the total annual reporting and recordkeeping “hour” burden for the rule is 255 hours. See the table below for a breakdown of requirements and hour burdens. Citation 30 CFR 291 Reporting and recordkeeping requirement Hour burden Average number annual responses Annual burden hours 105, 106, 108, 110 Submit complaint (with fee) to MMS and affected parties. Request confidential treatment and respond to MMS decision 50 5 250 108(a) Request alternative payment method 0.5 2 1 108(b) Request waiver or reduction of fee 1 4 4 107 109 113, 114(a) Submit answer to a complaint Submit required information for MMS to make a decision. Submit appeal on MMS final decision. Information required after an investigation is opened against a specific entity is exempt under the PRA (5 CFR 1320.4). 0 Total Burden 11 255 The rule (§§ 291.106(b) and 108) also proposes that shippers pay a nonrefundable fee of $7,500 when filing a complaint with MMS. The fee is required to recover the Federal Government's processing costs. Therefore, MMS estimates that the annual non-hour cost burden for this rulemaking is $37,500, based on five complaints per year. As part of our continuing effort to reduce paperwork and respondent burdens, MMS invites the public and other Federal agencies to comment on any aspect of the reporting and cost burdens in the proposed rule. You may submit your comments either by e-mail ( *OIRA_DOCKET@omb.eop.gov* ) or by fax
(202)395-6566 directly to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for the Department of the Interior. Please provide MMS with a copy of your comments so that we can summarize all written comments and address them in the final rule. Refer to the Addresses section for MMS mailing information. OMB has up to 60 days to approve or disapprove this collection of information but may respond after 30 days. Therefore, public comments should be submitted to OMB within 30 days in order to assure their maximum consideration. However, MMS will consider all comments received during the comment period for this notice of proposed rulemaking. MMS specifically solicits comments on the following questions: 1. Is the proposed collection of information necessary for MMS to properly perform its functions, and will it be useful? 2. Are the estimates of the burden hours of the proposed collection reasonable? 3. Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected? 4. Is there a way to minimize the information collection burden on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology? Federalism (Executive Order 13132) According to Executive Order 13132, the proposed rule would not have significant Federalism effects. The proposed rule would not change the role or responsibilities of Federal, State, and local governmental entities. The proposed rule does not relate to the structure and role of States and would not have direct, substantive, or significant effects on States. A Federalism Assessment is not required. Takings (Executive Order 12630) DOI certifies that this rule does not represent a governmental action capable of interference with constitutionally protected property rights. Civil Justice Reform (Executive Order 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. MMS has drafted this rule in plain language and has consulted with the Department of the Interior's Office of the Solicitor throughout the rulemaking process. Unfunded Mandates Reform Act
(UMRA)of 1995 This rule does not contain any unfunded mandates to State, local, or tribal governments, nor would it impose significant regulatory costs on the private sector. Anticipated costs to the private sector would be far below the $100 million threshold for any year that was established by UMRA. National Environmental Policy Act
(NEPA)of 1969 MMS has analyzed this rule according to the criteria of NEPA and 516 Departmental Manual 6, Appendix 10.4C, “issuance and/or modification of regulations.” MMS has reviewed the criteria of the Categorical Exclusion Review
(CER)for this action and concluded: “The proposed rulemaking does not represent an exception to the established criteria for categorical exclusion, and its impacts are limited to administrative, economic, or technological effects . . . . Therefore, preparation of an environmental document will not be required, and further documentation of this CER is not required.” Clarity of This Regulation Executive Order 12866 requires each agency to write regulations that are easy to understand. MMS invites your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: 1. Are the requirements in the rule clearly stated? 2. Does the rule contain technical language or jargon that interferes with its clarity? 3. Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? 4. Is the description of the rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the rule? What else can be done to make the rule easier to understand? Send a copy of any comments on how this rule could be made easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: *Exsec@ios.doi.gov.* Please use “Open and Nondiscriminatory Movement” and the approved Regulatory Identification Number
(RIN)1010-AD17 as an identifier in your message. Effects on the Nation's Energy Supply (Executive Order 13211) In accordance with Executive Order 13211, this proposed regulation would not have a significant adverse effect on the nation's energy supply, distribution, or use. The regulations would provide for a complaint process to ensure open and nondiscriminatory access on the OCS. If implemented, the regulation would not impact significantly the way industry does business, and accordingly should not affect their approach to energy development or marketing. Nor would the proposed rule otherwise significantly impact energy supply, distribution, or use. Consultation and Coordination With Indian Tribal Governments (Executive Order 13175) In accordance with Executive Order 13175, this proposed rule does not have tribal implications that would impose substantial direct compliance costs on Indian tribal governments. List of Subjects in 30 CFR Part 291 Administrative practice and procedures, Alternative dispute resolution, Complaints, Continental shelf, Government contracts, Hotline, Natural gas, Penalties, Petroleum, Pipelines, Public lands—mineral resources, Public Lands—rights-of-way, Remedies, Reporting requirements, and Transportation. Dated: January 31, 2007. C. Stephen Allred, Assistant Secretary—Land and Minerals Management. For the reasons set out in the preamble, MMS proposes to add to title 30 of the Code of Federal Regulations a new Part 291 as follows: TITLE 30—MINERAL RESOURCES PART 291—OPEN AND NONDISCRIMINATORY ACCESS TO OIL AND GAS PIPELINES UNDER THE OUTER CONTINENTAL SHELF LANDS ACT Sec. 291.100 What is the purpose of this part? 291.101 What definitions apply to this part? 291.102 May I call the MMS Hotline to informally resolve an allegation that open and nondiscriminatory access was denied? 291.103 May I use alternative dispute resolution to informally resolve an allegation that open and nondiscriminatory access was denied? 291.104 Who may file a complaint? 291.105 What must a complaint contain? 291.106 How do I file a complaint? 291.107 How do I answer a complaint? 291.108 How do I pay the processing fee? 291.109 May I ask for a fee waiver or a reduced processing fee? 291.110 Who may MMS require to produce information? 291.111 How do I request that MMS treat the information I provide as confidential? 291.112 How will MMS decide whether a grantee or transporter has provided open and nondiscriminatory access? 291.113 What actions may MMS take to remedy denial of open and nondiscriminatory access? 291.114 How do I appeal to the IBLA? 291.115 How do I exhaust administrative remedies? Authority: 43 U.S.C. 1331 *et seq.* , 31 U.S.C. 9701, section 342 of the Energy Policy Act of 2005. § 291.100 What is the purpose of this part? This part:
(a)Explains the procedures for filing a complaint with the Director, Minerals Management Service
(MMS)alleging that a grantee or transporter has denied a shipper of production from the Outer Continental Shelf
(OCS)open and nondiscriminatory access to a pipeline;
(b)Explains the procedures MMS will employ to determine whether violations of the requirements of the Outer Continental Shelf Lands Act (OCSLA) have occurred, and to remedy any violations; and
(c)Provides for alternative informal means of resolving pipeline access disputes through either Hotline-assisted procedures or Alternative Dispute Resolution. § 291.101 What definitions apply to this part? *Accessory* means a platform, a major subsea manifold, or similar subsea structure attached to a right-of-way
(ROW)pipeline to support pump stations, compressors, manifolds, etc. The site used for an accessory is part of the pipeline ROW grant. *Appurtenance* means equipment, device, apparatus, or other object attached to a horizontal component or riser. Examples include anodes, valves, flanges, fittings, umbilicals, subsea manifolds, templates, pipeline end modules, pipeline end terminals, anode sleds, other sleds, and jumpers (other than jumpers connecting subsea wells to manifolds). *FERC pipeline* means any pipeline within the jurisdiction of the Federal Energy Regulatory Commission
(FERC)under the Natural Gas Act, 15 U.S.C. 717-717z, or the Interstate Commerce Act, 42 U.S.C. 7172(a) and (b). *Grantee* means any person to whom MMS has issued an oil or gas pipeline permit, license, easement, right-of-way, or other grant of authority for transportation on or across the OCS under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p), and any person who has an assignment of a permit, license, easement, right-of-way or other grant of authority, or who has an assignment of any rights subject to any of those grants of authority under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p). *IBLA* means the Interior Board of Land Appeals. *OCSLA pipeline* means any oil or gas pipeline for which MMS has issued a permit, license, easement, right-of-way, or other grant of authority. *Outer Continental Shelf* means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control. *Party* means any person who files a complaint, any person who files an answer, and MMS. *Person* means an individual, corporation, government entity, partnership, association (including a trust or limited liability company), consortium, or joint venture (when established as a separate entity). *Pipeline* is the piping, risers, accessories and appurtenances installed for transportation of oil and gas. *Serve* means personally delivering a copy of a document to a person, or sending a document by U.S. mail or private delivery services that provide proof of delivery (such as return receipt requested) to a person. *Shipper* means a person who contracts or wants to contract with a grantee or transporter to transport oil or gas through the grantee's or transporter's pipeline. *Transportation* means, for purposes of this part only, the movement of oil or gas through an OCSLA pipeline. *Transporter* means, for purposes of this part only, any person who owns or operates an OCSLA oil or gas pipeline. § 291.102 May I call the MMS Hotline to informally resolve an allegation that open and nondiscriminatory access was denied? Before filing a complaint under § 291.106, you may attempt to informally resolve an allegation concerning open and nondiscriminatory access by calling the toll free MMS Hotline at [THE ACTUAL PHONE NUMBER WILL BE IN FINAL RULE].
(a)MMS Hotline staff will informally seek information needed to resolve the dispute. MMS Hotline staff will attempt to resolve disputes without litigation or other formal proceedings. The Hotline staff will not attempt to resolve matters that are before MMS or FERC in docketed proceedings.
(b)MMS Hotline staff may provide information to you and give informal oral advice. The advice given is not binding on MMS, the Department of the Interior (DOI), or any other person.
(c)To the extent permitted by law, the MMS Hotline staff will treat all information it obtains as non-public and confidential.
(d)You may call the MMS Hotline anonymously.
(e)If you contact the MMS Hotline, you may file a complaint under this part if discussions assisted by MMS Hotline staff are unsuccessful at resolving the matter.
(f)You may terminate use of the MMS Hotline procedure at any time. § 291.103 May I use Alternative Dispute Resolution to informally resolve an allegation that open and nondiscriminatory access was denied? You may ask to use Alternative Dispute Resolution
(ADR)either before or after you file a complaint. To make a request, call the MMS Hotline [THE ACTUAL PHONE NUMBER WILL BE IN FINAL RULE] or write to us at the following address: Associate Director, Policy and Management Improvement, Minerals Management Service, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001.
(a)You may request that ADR be administered by:
(1)A contracted ADR provider agreed to by all persons;
(2)The Department's Office of Collaborative Action and Dispute Resolution (CADR); or
(3)MMS staff trained in ADR and certified by the CADR.
(b)Each party must pay its respective share of all costs and fees associated with any contracted or Departmental ADR provider. For purposes of this section, MMS is not a party in an ADR proceeding. § 291.104 Who may file a complaint? You may file a complaint if you are a shipper and you believe that you have been denied open and nondiscriminatory access to an OCSLA pipeline that is not a FERC pipeline. § 291.105 What must a complaint contain? For purposes of this subpart, a complaint means a comprehensive written brief stating the legal and factual basis for the allegation that a shipper was denied open and nondiscriminatory access, together with supporting material. A complaint must:
(a)Clearly identify the action or inaction which is alleged to violate 43 U.S.C. 1334(e) or (f)(1)(A);
(b)Explain how the action or inaction violates 43 U.S.C. 1334(e) or (f)(1)(A);
(c)Explain how the action or inaction affects your interests, including practical, operational, or other non-financial impacts;
(d)Estimate any financial impact or burden;
(e)State the specific relief or remedy requested; and
(f)Include all documents that support the facts in your complaint including, but not limited to, contracts and any affidavits that may be necessary to support particular factual allegations. § 291.106 How do I file a complaint? To file a complaint under this part, you must:
(a)File your complaint with the Director, Minerals Management Service (MMS Director) at the following address: Director, Minerals Management Service, *Attention:* Policy and Management Improvement, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001; and
(b)Include a nonrefundable processing fee of $7,500 under § 291.108(a) or a request for reduction or waiver of the fee under § 291.109(a); and
(c)Serve your complaint on all persons named in the complaint. If you make a claim under section 291.111 for confidentiality, serve the redacted copy and proposed form of a protective agreement on all persons named in the complaint. § 291.107 How do I answer a complaint?
(a)If you have been served a complaint under § 291.106, you must file an answer within 60 days of receiving the complaint. If you miss this deadline, MMS may not consider your answer. We consider your answer to be filed when the MMS Director receives it at the following address: Director, Minerals Management Service, *Attention:* Policy and Management Improvement, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001.
(b)For purposes of this paragraph, an answer means a comprehensive written brief stating the legal and factual basis refuting the allegations in the complaint, together with supporting material. You must:
(1)Attach to your answer a copy of the complaint or reference the assigned MMS docket number (you may obtain the docket number by calling the Policy and Management Improvement Office at
(202)208-2622);
(2)Explain in your answer why the action or inaction alleged in the complaint does not violate 43 U.S.C. 1334(e) or (f)(1)(A);
(3)Include with your answer all documents in your possession or that you can otherwise obtain that support the facts in your answer including, but not limited to, contracts and any affidavits that may be necessary to support particular factual allegations; and
(4)Provide a copy of your answer to all parties named in the complaint including the complainant. If you make a claim under § 291.111 for confidentiality, serve the redacted copy and proposed form of a protective agreement to all parties named in the complaint, including the complainant. § 291.108 How do I pay the processing fee?
(a)You must pay the processing fee to the MMS Policy and Management Improvement Office by one of the following methods:
(1)By Electronic Funds Transfer using the Federal Reserve Communications System
(FRCS)link to the Financial Service Fedwire Deposit System; or
(2)By check or an alternative method, only if you request and MMS authorizes use of this option before the date the processing fee is due.
(b)You must include with the payment:
(1)Your taxpayer identification number;
(2)Your payor identification number, if applicable; and
(3)The complaint caption, or any other applicable identification of the complaint you are filing. § 291.109 May I ask for a fee waiver or a reduced processing fee?
(a)MMS may grant a fee waiver or fee reduction in extraordinary circumstances. You may request a waiver or reduction of your fee by:
(1)Sending a written request to the MMS Policy and Management Improvement Office when you file your complaint; and
(2)Demonstrating in your request that you are unable to pay the fee or that payment of the full fee would impose an undue hardship upon you.
(b)The MMS Policy and Management Improvement Ooffice will send you a written decision granting or denying your request for a fee waiver or a fee reduction.
(1)If we grant your request for a fee reduction, you must pay the reduced processing fee within 30 days of the date you receive our decision.
(2)If we deny your request:
(i)You must pay the entire processing fee within 30 days of the date you receive the decision; and
(ii)That decision is final for the Department. § 291.110 Who may MMS require to produce information?
(a)MMS may require any lessee, operator of a lease or unit, shipper, grantee, or transporter to provide information that MMS believes is necessary to make a decision on whether open access or nondiscriminatory access was denied.
(b)If you are a party and fail to provide information MMS requires under paragraph
(a)of this section, MMS may:
(1)Assess civil penalties under 30 CFR part 250, subpart N;
(2)Dismiss your complaint or not consider your answer; or
(3)Make determinations adverse to you on factual issues to which the information is relevant.
(c)If you are not a party to a complaint and fail to provide information MMS requires under paragraph
(a)of this section, MMS may assess civil penalties under 30 CFR part 250, subpart N. § 291.111 How do I request that MMS treat the information I provide as confidential?
(a)Any person who provides documents under this subpart may claim that some or all of the information contained in a particular document is:
(1)Exempt from the mandatory public disclosure requirements of the Freedom of Information Act, 5 U.S.C. 552;
(2)Information referred to in the Trade Secrets Act, 18 U.S.C. 1905; or
(3)Otherwise exempt by law from public disclosure.
(b)If you claim confidential treatment under paragraph
(a)of this section, then when you provide the document to MMS you must:
(1)Provide a complete unredacted copy of the document and indicate on that copy that you are making a request for confidential treatment for some or all of the information in the document.
(2)Provide a statement specifying the specific statutory justification for nondisclosure of the information for which you claim confidential treatment. General claims of confidentiality are not sufficient. You must furnish sufficient information for MMS to make an informed decision on the request for confidential treatment;
(3)Provide a second copy of the document from which you have redacted the information for which you wish to claim confidential treatment. If you do not submit a second copy of the document with the confidential information redacted, MMS may assume that there is no objection to public disclosure of the document in its entirety.
(c)MMS retains the right to make the determination with regard to any claim of confidentiality. MMS will notify you of its decision to deny a claim, in whole or in part, and, to the extent permitted by law, will give you an opportunity to respond at least 5 days before its public disclosure. § 291.112 How will MMS decide whether a grantee or transporter has provided open and nondiscriminatory access? MMS will not process a complaint unless the processing fee is paid or MMS grants a waiver. The MMS Director will review the complaint, answer, and other information, and will serve all parties with a written decision that:
(a)Makes findings of fact and conclusions of law; and
(b)Renders a decision determining whether the complainant has been denied open and nondiscriminatory access. § 291.113 What actions may MMS take to remedy denial of open and nondiscriminatory access? If the MMS Director's decision under § 291.112 determines that the grantee or transporter has not provided open access or nondiscriminatory access, then the decision will describe the actions MMS will take to remedy the denial of open access or nondiscriminatory access. Actions MMS may take include, but are not limited to:
(a)Ordering grantees and transporters to provide open and nondiscriminatory access to the complainant;
(b)Assessing civil penalties of up to $10,000 per day under 30 CFR part 250, subpart N, for failure to provide open access or nondiscriminatory access. Penalties will begin to accrue 60 days after the grantee or transporter receives the order to provide open and nondiscriminatory access under this paragraph;
(c)Requesting the Attorney General to institute a civil action in the appropriate United States District Court under 43 U.S.C. 1350(a) for a temporary restraining order, injunction, or other appropriate remedy to enforce the open and nondiscriminatory access requirements of 43 U.S.C. 1334(e) and (f)(1)(A); or
(d)Initiating a proceeding to forfeit the right-of-way grant under 43 U.S.C. 1334(e). § 291.114 How do I appeal to the IBLA? Any party adversely affected by a decision of the MMS Director under this part may appeal to the Interior Board of Land Appeals
(IBLA)under the procedures in 43 CFR part 4, subpart E. § 291.115 How do I exhaust administrative remedies?
(a)If the MMS Director issues a decision under this part but does not expressly make the decision effective upon issuance, you must appeal the decision to the IBLA under 43 CFR part 4 to exhaust administrative remedies. A decision will not be effective during the time in which a person adversely affected by the MMS Director's decision may file a notice of appeal with the IBLA, and the timely filing of a notice of appeal will suspend the effect of the decision pending the decision on appeal.
(b)If the MMS Director expressly makes a decision effective upon issuance or if the Assistant Secretary for Land and Minerals Management issues or concurs in a decision for the Department under this part, that decision is the final decision for the Department and you have exhausted your administrative remedies. [FR Doc. E7-6197 Filed 4-5-07; 8:45 am] BILLING CODE 4310-MR-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [USCG-2007-2737] RIN 1625-AA08 Regattas and Marine Parades; Great Lakes Annual Marine Events AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to amend special local regulations for annual regattas and marine parades in the Captain of the Port Lake Michigan zone. This proposed rule is intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after regattas or marine parades. This proposed rule will establish restrictions upon, and control the movement of, vessels in a specified area immediately prior to, during, and immediately after regattas or marine parades. DATES: Comments and related materials must reach the Coast Guard on or before June 5, 2007. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2007-2737 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)*Web Site: http://dms.dot.gov.*
(2)*Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
(3)*Fax:* 202-493-2251.
(4)*Delivery:* Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(5)*Federal eRulemaking Portal: http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at
(414)747-7154. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://dms.dot.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. *Submitting comments:* If you submit a comment, please include your name and address, identify the docket number for this rulemaking (USCG-2007-2737), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. *Viewing comments and documents:* To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://dms.dot.gov* at any time, click on “Simple Search,” enter the last five digits of the docket number for this rulemaking, and click on “Search.” You may also visit the Docket Management Facility in room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://dms.dot.gov* . SUPPLEMENTARY INFORMATION: Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander, Coast Guard Sector Lake Michigan
(SPW)at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose This proposed rule will remove the specific entries from table 1 found in 33 CFR 100.901, Great Lakes annual marine events that apply to regattas and marines parades in the Captain of the Port Lake Michigan zone and list each regatta or marine parade as a subpart. This proposed rule will also add several regattas and marine parades not previously listed in 33 CFR Part 100 and remove several events that no longer occur annually or are not regattas or marine parades. Discussion of Proposed Rule This proposed rule is intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after regattas or marine parades. This proposed rule will establish restrictions upon and control the movement of vessels through a specified area immediately prior to, during, and immediately after regattas or marine parades. The Captain of the Port will cause notice of enforcement of the special local regulations established by this section to be made by all appropriate means to the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the special local regulations is terminated. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The Coast Guard's use of these special local regulations will be periodic in nature, of short duration, and designed to minimize the impact on navigable waters. These special local regulations will only be enforced immediately before and during the time the marine events are occurring. Furthermore, these special local regulations have been designed to allow vessels to transit unrestricted to portions of the waterways not affected by the special local regulations. The Coast Guard expects insignificant adverse impact to mariners from the activation of these special local regulations. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the areas designated as special local regulations in paragraphs
(3)through
(8)during the dates and times the special local regulations are being enforced. These special local regulations would not have a significant economic impact on a substantial number of small entities for the following reasons. The special local regulations in this proposed rule would be in effect for short periods of time and only once per year. The special local regulations have been designed to allow traffic to pass safely around the zone whenever possible and vessels will be allowed to pass through the zones with the permission of the Captain of the Port. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at
(414)747-7154. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule 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 proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble. Taking of Private Property This proposed rule will not effect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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 The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these special local regulations and fishing rights protection need not be incompatible. We have also determined that this Proposed Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encourage to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe this proposed rule should be categorically excluded, under figure 2-1, paragraph 34
(h)of the Instruction from further environmental documentation. This proposed rule establishes a special local regulation issued in conjunction with a regatta or marine parade regulated and as such is covered by this paragraph. A preliminary “Environmental Analysis Check List” and a preliminary “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether the proposed rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. § 100.901 [Amended] 2. Amend § 100.901 Table 1 as follows: a. Under entry for “Group Sault Ste. Marie, MI” remove the entries: National Cherry Festival Blue Angels Air Demonstration and Venetian Festival Yacht Parade; b. remove the entry for “Group Grand Haven, MI”; and c. remove the entry “Group Milwaukee, WI”. 3. Add § 100.903 to read as follows: § 100.903 Harborfest Dragon Boat Race; South Haven, MI.
(a)Regulated Area. A regulated area is established to include all waters and adjacent shoreline of the Black River from approximately 250 yards upriver to 200 yards downriver of the entrance to the South Haven Municipal Marina within the following coordinates starting at 42°24′13.6″ N, 086°16′41″ W; then southeast 42°24′12.6″ N, 086°16′40″ W; then northeast to 42°24′19.2″ N, 086°16′26.5″ W; then northwest to 42°24′20.22″ N, 086°16′27.4″ W; then back to point of origin (NAD 83).
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective annually on the third Saturday of June, from 7 a.m. until 7 p.m. 4. Add § 100.904 to read as follows: § 100.904 Celebrate Americafest, Green Bay, WI.
(a)Regulated Area. A regulated area is established to include all waters and adjacent shoreline of the Fox River located between the Main Street Bridge located 1.58 miles above the mouth of the Fox River and the Walnut Street Bridge located 1.81 miles above the mouth of the Fox River.
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective annually on first weekend of July; 2 p.m. to 5 p.m. 5. Add § 100.905 to read as follows: § 100.905 Door County Triathlon; Door County, WI.
(a)Regulated Area. A regulated area is established to include all waters of Green Bay within the arc of a circle with a 2,000-yard radius from the northwestern point of Horseshoe Point near Frank E. Murphy County Park with its center in position 45°00′46″ N, 087°20′30″ W (NAD 83).
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective July 22, 2007, July 26 and 27, 2008, July 25 and 26, 2009, July 24 and 25, 2010, July 23 and 24, 2011; from 7 a.m. to 10 a.m. 6. Add § 100.906 to read as follows: § 100.906 Grand Haven Coast Guard Festival Waterski Show, Grand Haven, MI.
(a)Regulated Area. All waters and adjacent shoreline of the Grand River at Waterfront Stadium from approximately 350 yards upriver to 150 yards downriver of Grand River Lighted Buoy 3A (Lightlist number 19000) within the following coordinates: 43°04′ N, 086°14′12″ W; then east to 43°03′56″ N, 086°14′4″ W; then south to 43°03′45″ N, 086°14′10″ W; then west to 43°03′48″ N, 086°14′17″ W; then back to the point of origin (NAD 83).
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective annually August 1st; 7 p.m. to 9 p.m. 7. Add § 100.907 to read as follows: § 100.907 Milwaukee River Challenge; Milwaukee, WI.
(a)Regulated Area. All waters of the Milwaukee River from the junction with the Menomonee River at 1.01 miles above the Milwaukee Pierhead Light to the Humboldt Avenue Bridge at 3.22 miles above the Milwaukee Pierhead Light.
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective annually on the third or fourth Saturday of September; from 9 a.m. to 5 p.m. 8. Add § 100.908 to read as follows: § 100.908 Charlevoix Venetian Night Boat Parade; Charlevoix, MI.
(a)Regulated Area. All waters of Round Lake, Charlevoix, MI.
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective annually on the fourth Saturday of July; from 9 p.m. to 11 p.m. 9. Add § 100.909 to read as follows: § 100.909 Chinatown Chamber of Commerce Dragon Boat Race; Chicago, IL.
(a)Regulated Area. All waters of the South Branch of the Chicago River from the 18th Street Bridge 3.6 miles above the west end of the Chicago Lock to the Amtrak Bridge 3.77 miles above the west end of the Chicago Lock.
(b)Special Local Regulations. The regulations of § 100.901 apply. No vessel may enter, transit through, or anchor within the regulated area without the permission of the Coast Guard Patrol Commander.
(c)Effective Date. These regulations are effective annually on the third Friday of July; from 11:30 a.m. to 5 p.m. and on the third Saturday of July; from 9 a.m. to 5 p.m. Dated: March 26, 2007. John E. Crowley, Jr., Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District. [FR Doc. E7-6425 Filed 4-5-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05-07-021] RIN 1625-AA09 Drawbridge Operation Regulations; Atlantic Intracoastal Waterway (AIWW), Albemarle and Chesapeake Canal, Chesapeake, VA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to change the regulations that govern the operation of the Centerville Turnpike (SR 170) Bridge, at AIWW mile 15.2, across the Albemarle and Chesapeake Canal in Chesapeake, Virginia. The proposal would allow the bridge to open on signal every hour on the half hour from 6:30 a.m. to 6:30 p.m., year round. The reason for this change would be to improve the schedule for both roadway and waterway users. DATES: Comments and related material must reach the Coast Guard on or before May 21, 2007. ADDRESSES: You may mail comments and related material to Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004. The Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Commander (dpb), Fifth Coast Guard District between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District, at
(757)398-6422. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking CGD05-07-021, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like a return receipt, please enclose a stamped, self-addressed postcard or envelope. We will consider all submittals received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander (dpb), Fifth Coast Guard District at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The Centerville Turnpike (SR 170) Bridge, a swing-type drawbridge, has a vertical clearance in the closed position to vessels of four feet, above mean high water. The City of Chesapeake owns and operates this swing-type bridge. Current regulation requires the bridge to open on signal at any time for commercial vessels carrying liquefied flammable gas or other hazardous materials. In addition, from 8:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays, the draw need only be opened on the hour and half hour. From 6:30 a.m. to 8:30 a.m. and from 4 p.m. to 6 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of recreational vessels and commercial vessels carrying non-hazardous material that do not provide a 2-hour advance notice. The City of Chesapeake has requested a change to the existing regulations for the Centerville Turnpike (SR 170) Bridge in an effort to improve the schedule for both roadway and waterway users and to improve the travel for mariners to arrive at the Great Bridge
(S168)Bridge across the Albemarle and Chesapeake, at AIWW mile 12.0 at Chesapeake, (approximately three miles away) in time to pass through the drawbridge during its opening schedule. The Great Bridge
(S168)Bridge provides vessel openings on the hour between 6 a.m. to 7 p.m., seven days a week, year round. This proposal would continue to open on signal at any time for commercial vessels carrying liquefied flammable gas or other hazardous materials, eliminates the 2-hour advance notice requirement for commercial vessels carrying non-hazardous material and the rush hour restrictions to mariners from 6:30 a.m. to 8:30 a.m. and from 4 p.m. to 6 p.m., Monday through Friday, except Federal holidays. The Coast Guard reviewed the bridge logs provided by the City of Chesapeake which illustrated a small decrease in the numbers of vessels passing through the bridge during the spring, summer, and fall, primarily for “snowbirds”. Owners of these transitory recreational vessels are either traveling north to south towards a warmer climate in the fall or south to north towards a cooler climate in the spring and this can result in frequent bridge openings due to their numbers. During the spring and fall months, the flow of recreational vessels is constant. There were approximately 9,068 and 10,415 vessel passages occurring in 2006 and 2005, respectively, over a seven-month period (April, May, June, July, August, October and November) according to records furnished by the City of Chesapeake. (See Table A) Table A JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC BRIDGE OPENINGS FOR 2006 210 151 280 510 428 627 659 514 418 521 451 255 BOAT PASSAGES FOR 2006 249 177 358 954 1213 1630 1500 954 743 1601 1216 361 BRIDGE OPENINGS FOR 2005 189 192 282 455 719 631 666 579 452 399 495 305 BOAT PASSAGES FOR 2005 224 216 351 897 2234 1724 1495 1091 818 1646 1328 458 Due to the large number of vessels under the current schedule, mariners cannot arrive on time for the Great Bridge
(S168)Bridge opening before the morning and evening rush hour periods. The waterway at this location is narrow and offers no anchorage area, and this condition creates a hazardous situation for vessels waiting and maneuvering for long periods to transit through the draw span. Also, a well-known marina along the AIWW was contacted by the City of Chesapeake during this evaluation process in order to help seek comments from waterway users frequenting the AIWW. While it was an unofficial survey, the marina relayed that the overwhelming majority of its contacts believe the proposed schedule would work much better than the current operating regulations for the Centerville Turnpike (SR 170) Bridge. Based on the above information, we have proposed to change the regulations that govern the Centerville Turnpike (SR 170) Bridge to open on signal at any time for commercial vessels carrying liquefied flammable gas or other hazardous materials; and every hour on the half hour between 6:30 a.m. and 6:30 p.m., year-round. At all other times, the draw shall open on demand. The proposal will enable transient craft to reduce delays in navigating the AIWW, while also helping to ease vehicular traffic congestion. Discussion of Proposed Rule The Coast Guard proposes to amend 33 CFR 117.997(j), by revising the following paragraphs: Paragraph (j)(2) would modify to read “Year-round from 6:30 a.m. to 6:30 p.m., the draw need only be opened every hour on the half hour”. Paragraph (j)(3) would modify to read “If any vessel is approaching the bridge and cannot reach the draw exactly on the half hour, the draw tender may delay the opening ten minutes past the half hour for the passage of the approaching vessel and any other vessels that are waiting to pass”. Paragraph (j)(4) would read “Shall open on signal at all other times”. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. We reached this conclusion based on the fact that the proposed changes have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the scheduled bridge openings, to minimize delays. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, and mariners who plan their transits in accordance with the scheduled bridge openings can minimize delay. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District,
(757)398-6222. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not 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 proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (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. However, comments on this section will be considered before the final rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard proposes to amend 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); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. In § 117.997, remove paragraph (j)(5) and revise paragraphs (j)(2), (j)(3) and (j)(4) to read as follows: § 117.997 Atlantic Intracoastal Waterway, South Branch of the Elizabeth River to the Albemarle and Chesapeake Canal.
(j)* * *
(1)* * *
(2)Year-round from 6:30 a.m. to 6:30 p.m., the draw need only be opened every hour on the half hour;
(3)If any vessel is approaching the bridge and cannot reach the draw exactly on the half hour, the draw tender may delay the opening ten minutes past the half hour for the passage of the approaching vessel and any other vessels that are waiting to pass;
(4)Shall open on signal at all other times. Dated: March 21, 2007. L.L. Hereth, Rear Admiral, United States Coast Guard Commander, Fifth Coast Guard District. [FR Doc. E7-6146 Filed 4-5-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R01-OAR-2007-0136; A-1-FRL-8295-5] Approval and Promulgation of State Plans for Designated Pollutants and Facilities; Rhode Island; Negative Declaration AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to approve the Sections 111(d) and 129 negative declaration submitted by the State of Rhode Island. This negative declaration adequately certifies that there are no existing “other solid waste incineration”
(OSWI)units located within the boundaries of the State of Rhode Island. DATES: Written comments must be received on or before May 7, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-OAR-2007-0136 by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *cohen.ian@epa.gov.* 3. *Fax:*
(617)918-0655. 4. *Mail:* “EPA-R01-OAR-2007-0136”, Dan Brown, Chief, Air Permits, Toxics, and Indoor Air Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAP), Boston, MA 02114-2023. 5. Hand Delivery or Courier. Deliver your comments to: Dan Brown, Chief, Air Permits, Toxics, and Indoor Air Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 p.m. to 4:30 p.m., excluding legal holidays. Please see the direct final rule which is located in the Rules Section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Ian D. Cohen, Air Permits, Toxics, and Indoor Air Programs, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street (CAP), Boston, MA 02114-2023, telephone number
(617)918-1655, fax number
(617)918-0655, e-mail *cohen.ian@epa.gov.* SUPPLEMENTARY INFORMATION: In the Final Rules Section of this **Federal Register** , EPA is approving the negative declaration for OSWI units in Rhode Island as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules Section of this **Federal Register** . Dated: March 27, 2007. Robert W. Varney, Regional Administrator, EPA New England. [FR Doc. E7-6461 Filed 4-5-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0175; FRL-8119-8] Pesticides; Food Packaging Treated with a Pesticide AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: This proposed rule would except from the definitions of “pesticide chemical” and “pesticide chemical residue” under FFDCA section 201(q), food packaging (e.g. paper and paperboard, coatings, adhesives, and polymers) that is treated with a pesticide as defined in the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) section 2(u). As a result, such ingredients in food packaging treated with a pesticide would be exempt from regulation under FFDCA section 408 as pesticide chemical residues. Further, a food that bears or contains such ingredients would not be not subject to enforcement by the Food and Drug Administration
(FDA)under section 402(a)(2)
(B)of the FFDCA since the ingredients would no longer be pesticide chemical residues. Instead, such ingredients would be subject to regulation by the FDA as food additives under FFDCA section 409. FDA generally regulates such food additives in food packaging as food contact substances under FFDCA, section 409(h). This proposed rule would expand the scope of the provision in 40 CFR 180.4 which currently applies only to food packaging impregnated with an insect repellent - one type of pesticide. This proposed rule, as with the rule it would amend, only applies to the food packaging materials themselves; it would not otherwise limit EPA's FFDCA jurisdiction over pesticides or limit FDA's jurisdiction over substances subject to FDA regulation as food additives. EPA, in consultation with FDA, and FDA believe this rule would eliminate the duplicative FFDCA jurisdiction and economize federal government resources while continuing to protect human health and the environment. Even after this rule is finalized, under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), EPA would continue to regulate the food packaging as an inert ingredient of the pesticide product and regulate the pesticide active ingredient in the treated food packaging under both FIFRA and the FFDCA. The text of this proposed rule is identical to a direct final rule EPA issued on December 6, 2006. EPA received several comments opposing that direct final rule and therefore withdrew the rule on January 25, 2007, consistent with EPA policy. EPA is now issuing the rule as a proposal for public comment. DATES: Comments must be received on or before April 23, 2007. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2007-0175, 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 Building), 2777 S. Crystal Drive, 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. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2007-0175. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line 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 regulations.gov or e-mail. The Federal regulations.gov website 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 regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* : All documents in the docket are listed in the docket index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either 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 Building), 2777 S. Crystal Drive, Arlington, VA. The hours of operation of this Docket Facility are 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: Mari L. Duggard, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-0028; fax number:
(703)308-7026; e-mail address: *duggard.mari@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 a manufacturer or wholesaler of sanitary food packaging products or are a pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Pesticide manufacturing (NAICS code 32532). • Food packaging manufacturers (NAICS code 32222). 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. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR § 180.4. 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. What Should I Consider as I Prepare My Comments for EPA? 1. *Docket.* EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0175. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date, and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background A. What Action is the Agency Taking? EPA has received applications for the registration of pesticides under FIFRA that, as proposed, will be applied to food packaging materials. These pesticides are generally intended to function as alternatives to more costly and more toxic applications of insecticides in food storage and retail establishments. The regulatory framework for this use of pesticides raises a number of complex jurisdictional issues for EPA and FDA. 1 Because the treated packaging materials will be sold to food distributors for the purpose of controlling pest infestations, as well as for packaging food, the pesticide-treated food packaging materials will be subject to the pesticide product registration requirements of section 3 of FIFRA. Under FIFRA, the components of pesticides are either active ingredients or inert ingredients. Active ingredients are those which, among other things, will “prevent, destroy, repel or mitigate any pest.” (FIFRA section 2(a)) Inert ingredients are ingredients “which [are] not active.” (FIFRA section 2(m)). Thus, the components of food packaging (paperboards, coatings, etc.) become inert ingredients of a pesticide product under FIFRA whenever the food packaging is treated with a pesticide active ingredient and is distributed or sold with the purpose of controlling pests. 2 Such inert ingredients are not used for a pesticidal purpose in the production, storage, processing, or transportation of food. However, as inert ingredients, these components of food packaging are also subject to regulation as “pesticide chemical residues” under FFDCA section 408. 1 This proposed rule would not include within its scope substances which may be regulated as pesticides under FIFRA that are used to prevent, destroy, repel or mitigate microorganisms when such substances are included for such use in or are applied for such use on food packaging (without regard to whether the substances are intended to have an ongoing effect on any portion of the packaging) (see FFDCA section 201(q)(1)(B)(ii) which excludes such substances from the definition of “pesticide chemical”). Because such substances are already excluded from the definition of pesticide chemical residue, it is unnecessary to address these substances in this proposed rule. 2 It is important to understand that this proposed rule would only apply to a very small subset of food packaging materials: pesticide-treated food packaging that is distributed or sold with the purpose of controlling pests. Food packaging that is not distributed or sold to control pests is not a pesticide and is not subject to this rule. For example, packaged products that are simply treated with pesticides by food distributors, retailers or homeowners solely to control pests on site do not themselves become pesticides simply as a result of such applications. Rather, the product itself must be distributed with the purpose of providing pest control to become a pesticide. The treated packaging materials addressed in this proposed rule are those that are sold for the express purpose of providing ongoing protection from pests that may contaminate the products made with the treated packaging. Under section 408 of the FFDCA, any pesticide chemical residue in or on food is deemed unsafe, unless EPA has established a tolerance or tolerance exemption that covers the pesticide chemical residue. This is true even though FDA may have previously issued regulations under section 409 of FFDCA permitting the use of these materials in food packaging that has not been treated with a pesticide. As a result, the same food packaging materials would be subject to regulation under FFDCA by both Agencies. EPA is proposing today to give FDA sole jurisdiction under section 409 FFDCA over the packaging components of food packaging materials that have been treated with a pesticide by excepting these materials from the definition of “pesticide chemical” and “pesticide chemical residue.” Given FDA's expertise and experience in regulating the components of food packaging, EPA and FDA believe this rule will eliminate the duplicative FFDCA jurisdiction and economize Federal government resources while continuing to protect human health and the environment without additional regulatory oversight by EPA. In 1998, EPA consciously limited the exception at 40 CFR 180.4 to food packaging materials impregnated with an insect repellent, since at the time of promulgation EPA had only received an application for a pesticide product containing an insect repellent. EPA has now received applications for other treated food packaging products that contain active ingredients that are not insect repellents and will not be applied through impregnation of the materials. EPA and FDA believe it is appropriate to extend the 1998 rule to give FDA sole jurisdiction under the FFDCA over the inert ingredients in such food packaging products without regard to the application technique and mode of action of the active ingredients in such products. Again, this proposed rule would not affect EPA's jurisdiction under section 408 over ingredients other than the packaging materials in such products (including the pesticide active ingredient), nor does it affect EPA's jurisdiction under FIFRA to regulate such products. On December 6, 2006, EPA published a direct final rule (71 FR 70667) to expand the coverage of 40 CFR 180.4 as discussed in the preceding paragraph. Because EPA received several comments opposing promulgation of that rule, EPA withdrew the rule on January 25, 2007 and is today issuing this proposal for public comment prior to developing any final rule. The regulatory text of the withdrawn direct final rule and today's proposal are identical: both provide that the components of food packaging material (e.g. paper and paperboard, coatings, adhesives, and polymers) that have been treated with a pesticide are excepted from the definition of pesticide chemical and pesticide chemical residue under section 201(q) of the FFDCA. Again, as explained in detail above, this proposal, like the direct final rule it replaces, only excepts packaging material from EPA regulation under the FFDCA - these materials will continue to be regulated by the FDA under section 409. Further, the rule does not modify the existing regulatory regime under the FFDCA for pesticidally active ingredients in food packaging nor does it affect EPA regulation of pesticide products under FIFRA. However, the comments EPA received on the direct final rule all appeared to oppose the rule principally because the commenters were concerned about the inclusion of pesticides in food packaging and did not believe EPA should either be permitting or relinquishing any authority to regulate that activity. It appears, therefore, that the commenters either misunderstood the nature of the amendment to § 180.4 or chose to submit comments to EPA on matters not specifically addressed by the direct final rule - or by today's proposed rule. In any case, nothing in the withdrawn direct final rule or in today's proposal relieves EPA of the obligation to regulate pesticides in food packaging, nor does today's action serve to approve the use of any pesticides in food packaging. Accordingly, these comments are not relevant to the action EPA is today proposing to take. EPA previously provided for a 30-day comment on the withdrawn direct final rule. As noted, the text of this proposed rule is identical to the withdrawn direct final rule. Because interested persons have already had an opportunity to comment on this matter through the direct final rule, EPA is providing only for an additional 15-day comment period on this proposed rule. B. What is the Agency's Authority for Taking this Action? Section 201(q)(3) of FFDCA, as amended by the Food Quality Protection Act (FQPA), allows the Administrator, under specified conditions, to except certain substances from the definition of “pesticide chemical” or “pesticide chemical residue” if—
(A)its occurrence as a residue on or in a raw agricultural commodity or processed food is attributable primarily to natural causes or human activities not involving the use of any substance for a pesticidal purpose in the production, storage, processing, or transportation of any raw agricultural commodity or processed food; and
(B)the Administrator, after consultation with the Secretary, determines that the substance more appropriately should be regulated under one or more provisions of this Act other than sections 402(a)(2)(B) and 408. With today's proposal, EPA would except from the definition of “pesticide chemical” substances that are inert ingredients in food packaging treated with a pesticide, when such ingredients are the components of the food packaging (e.g. paper and paperboard, coatings, adhesives and polymers). As previously explained, this proposed rule would not affect EPA's regulation of such substances as inert ingredients under FIFRA. EPA would continue to exercise jurisdiction under FIFRA over these substances when they are used as inert ingredients in food packaging that is intended to produce a pesticidal effect. The materials that make up food packaging treated with a pesticide may serve one of two purposes:
(1)To control pests, or
(2)to be one of the materials that make up the container for food. As a result of this proposed rule, EPA would continue to regulate the materials that control pests and FDA will regulate the substances that make up the food packaging material. Consistent with EPA's pesticide registration regulations, EPA will not issue a registration under FIFRA for pesticide products containing food packaging inert ingredients if the presence of these ingredients in or on food is not authorized or permitted by FFDCA and the implementing regulations. EPA, in consultation with FDA, believes that section 201(q)(3) is applicable to inert ingredients in pesticide treated food packaging materials that are the components of the food packaging (paperboard, coatings, etc). When such inert ingredients are the components of the food packaging itself, EPA believes the occurrence of these substances as residues in or on food would be appropriately excepted from the definition of “pesticide chemical” or “pesticide chemical residue” because such substances are not attributable primarily to the use of the substances for a pesticidal purpose in the production, storage, processing or transportation of food. Rather, the presence of such substances as residues in food is primarily attributable to their use for purposes of packaging food. For this reason, and because of FDA's considerable experience in regulating such substances found in food packaging, EPA and FDA believe it is appropriate for FDA to regulate these inert ingredients under section 409 of FFDCA. As noted, this proposed regulation would except from the definition of “pesticide chemical” and “pesticide chemical residue” any inert ingredient that is a component of food packaging material treated with a pesticide. EPA, in consultation with FDA, believes the identity of the pesticide in or on the packaging material is not relevant to a determination under section 201(q)(3) regarding whether it is appropriate to except an inert ingredient from the definition of “pesticide chemical” or “pesticide chemical residue.” As noted above, that determination turns only on whether:
(1)the occurrence of the residues of the substance in or on food is attributable primarily to the use of substances for a pesticidal purpose in the production, storage, processing or transportation of food; and
(2)whether it is more appropriate to regulate such substances under another provision of FFDCA other than sections 402(a)(2)(B) and 408. Thus, EPA has determined that inert ingredients that are the components of the food packaging material in pesticide treated food packaging are more appropriately regulated by FDA under FFDCA. This proposed rule would therefore amend 40 CFR 180.4 to extend the exception contained therein to any food packaging materials treated with a pesticide. III. Statutory and Executive Order Reviews As an exception, this action does not impose any regulatory obligations. Under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993), it has been determined that this proposed rule is not “significant” and is not subject to OMB review. This proposed 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). This proposed rule has no federalism or tribal implications, because it will not have substantial direct effects on States or Indian tribes, on the relationship between the Federal Government and the States or Indian tribes, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes, as specified in Executive Orders 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and 13175 entitled *Consultation and Coordination with Indian Tribal Governments* , (65 FR 67249, November 6, 2000). Nor does this rule raise issues that require 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 require OMB review in accordance with Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This proposed rule is also not subject to Executive Order 13211, entitled *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use* (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use. In addition, this action does not involve any standards that would require Agency consideration pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (Public Law 104-113) Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Agency hereby certifies that this proposed regulatory action will not have a significant economic impact on a substantial number of small entities, because this regulatory action is an exemption and imposes no regulatory obligations. EPA will provide this information to the Small Business Administration's office of Advocacy upon request. 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 26, 2007. Janet L. Andersen, Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs. Therefore, it is proposed that 40 CFR chapter I be 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), and 371. 2. Section 180.4 is amended by revising paragraph
(a)to read as follows. § 180.4 Exceptions.
(a)Inert ingredients in food packaging treated with a pesticide, when such inert ingredients are the components of the food packaging material (e.g. paper and paperboard, coatings, adhesives, and polymers). [FR Doc. E7-6349 Filed 4-5-07; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 070326070-7070-01; I.D. 032107A] RIN 0648-AV47 Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes regulations that would restrict the harvest of halibut by persons fishing on a guided sport charter vessel in International Pacific Halibut Commission
(IPHC)Regulatory Area 2C. The current sport fishing catch or bag limit of two halibut per day is proposed to be changed for a person sport fishing on a charter vessel in Area 2C to require that at least one of the two fish taken in a day be no more than 32 inches (81.3 cm) in length. This proposed regulatory change is necessary to reduce the halibut harvest in the charter vessel sector while minimizing negative impacts on this sector, its sport fishing clients, and the coastal communities that serve as home ports for the fishery. The intended effect of this action is a reduction in the poundage of halibut harvested by the guided sport charter vessel sector in Area 2C. DATES: Written comments must be received by April 23, 2007. ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Comments may be submitted by any of the following methods: • *Mail:* P.O. Box 21668, Juneau, AK 99802 1668; • *Hand deliver to the Federal Building:* 709 West 9th Street, Room 420A, Juneau, AK; • *Fax:* 907-586 7557; • *E-mail:* *0648-AV47-PR-HAL@noaa.gov* . Include in the subject line of the e-mail the following document identifier: Charter Vessel Halibut 0648-AV47. E-mail comments with or without attachments are limited to 5 megabytes; or • *Webform at the Federal e-Rulemaking Portal: http://www.regulations.gov* . Follow the instructions at that site for submitting comments. Copies of the Draft Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action are available from NMFS at the above address or from the NMFS Alaska Region website at *http://www.fakr.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Jay Ginter or Jason Gasper,
(907)586-7228 or email at *jay.ginter@noaa.gov* or *jason.gasper@noaa.gov* . SUPPLEMENTARY INFORMATION: The IPHC and NMFS manage fishing for Pacific halibut ( *Hippoglossus stenolepis* ) through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the Pacific halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed in Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention signed at Washington, D.C., on March 29, 1979. The IPHC's regulations are subject to approval by the Secretary of State with concurrence of the Secretary of Commerce (Secretary). Approved regulations developed by the IPHC are published as annual management measures pursuant to 50 CFR 300.62. Current regulations applicable to sport fishing for halibut in all IPHC areas in Alaska are contained in section 25 of the 2007 annual management measures ( 72 FR 11792 ; March 14, 2007). These regulations include the following restrictions per person sport fishing: 1. A single line with no more than two hooks attached or a spear; 2. A daily bag limit of two halibut of any size; 3. A possession limit of two daily bag limits; and 4. A sport fishing season of February 1 through December 31. The IPHC first adopted sport halibut fishing rules in 1973, in response to Federal, state, and provincial agencies seeking consistency and uniformity in sport fishing regulations in all IPHC areas. The IPHC bag limit rule was first established as three fish per day per person in 1973, was reduced to one fish per day in 1974, and raised to two fish per day in 1975, where it has remained until present. Similarly, the IPHC established the sport fishing season for halibut originally from March 1 through October 31 in 1973, and changed it for several years until the current 11-month season was set in 1986. Finally, during the years 1984 through 1997, the IPHC required sport charter vessels to have IPHC licenses. Additional regulations that are not in conflict with approved IPHC regulations may be recommended by the North Pacific Fishery Management Council (Council) and implemented by the Secretary through NMFS to allocate harvesting privileges among U.S. fishermen in and off of Alaska. The Council has exercised this authority, most notably in the development of its Individual Fishing Quota
(IFQ)Program, codified at 50 CFR part 679, and subsistence halibut fishery management measures, codified at 50 CFR 300.65. The Council also has been developing a regulatory program to manage the guided sport charter vessel fishery for halibut and is continuing this work. This program could include measures to restrict harvest in 2008 and a moratorium on new entry into the charter vessel fishery in 2009. Management of the Halibut Fisheries The harvest of halibut occurs in three basic fisheries the commercial, sport, and subsistence fisheries. An additional amount of fishing mortality occurs as bycatch or incidental catch while targeting other species and wastage. The IPHC annually determines the amount of halibut that may be removed from the resource without causing biological conservation problems on an area-by-area basis in all areas of Convention waters. It imposes catch limits, however, on only the commercial sector in areas in and off of Alaska. The IPHC estimates the exploitable biomass of halibut using a combination of harvest data from the commercial, recreational, subsistence fisheries, and information collected during scientific surveys and sampling of bycatch in other fisheries. The target amount of allowable harvest for a given area is calculated by multiplying a fixed harvest rate by the estimate of exploitable biomass. This target level is called the total constant exploitation yield
(CEY)as it represents the target level for total removals (in net pounds) for that area in the coming year. The IPHC subtracts estimates of all non-commercial removals (sport, subsistence, bycatch, and wastage) from the total CEY. The remaining CEY, after the removals are subtracted, is the maximum catch or “fishery CEY” for an area's directed commercial fixed gear fishery. This method of determining the commercial fishery's catch limit in an area results in a decrease in the commercial fishery's use of the resource as other non-commercial uses increase their proportion of the total CEY. As conservation of the halibut resource is the overarching goal of the IPHC, it attempts to include all sources of fishing mortality of halibut within the total CEY. This method for determining the limit for the commercial use of halibut has worked well for many years to conserve the halibut resource, provided that the other non-commercial uses of the resource have remained relatively stable and small. Although most of the non-commercial uses of halibut have been relatively stable, growth in the charter vessel fishery in recent years, particularly in Area 2C, has resulted in a de facto allocation of the halibut resource away from the commercial fishery to the charter vessel fishery. Guideline Harvest Level
(GHL)Currently, the Council's only approved management policy in effect for the charter vessel fisheries is to have separate GHLs for Area 2C and Area 3A. These GHLs are codified at 50 CFR 300.65(c). The GHLs serve as benchmarks for monitoring the charter vessel fishery relative to the commercial fishery and other sources of fishing mortality. The GHLs do not limit the charter vessel fisheries. Although it is the Council's policy that the charter vessel fisheries should not exceed the GHLs, no constraints have been imposed on the charter vessel fisheries for GHLs that have been exceeded in the past. The Council has discussed the expansion of the charter vessel fishery for halibut since 1993. The GHLs were initially adopted by the Council in 1997 without implementing regulations. The Council stated its intent to maintain a stable charter vessel fishing season without a mid-season closure. If a GHL was exceeded, other management measures would be triggered to take effect in years following attainment of the GHL. The Council envisioned “framework” regulations of increasing restrictiveness depending on the extent to which a GHL was exceeded. Proposed framework regulations were published in 2002 (January 28, 2002; 67 FR 3867); however, NMFS informed the Council later that year that its framework regulations could not be implemented. Hence, a final rule establishing the GHLs was eventually published without any restrictive regulations (68 FR 47256; August 8, 2003). The GHLs represent a pre-season specification of acceptable annual halibut harvests in the charter vessel fisheries in Areas 2C and 3A. To accommodate some growth in the charter vessel sector while approximating historical harvest levels, the Council recommended GHLs based on 125 percent of the average 1995 through 1999 charter vessel harvest. For Area 2C, the GHL was set at 1,432,000 lb (649.5 mt) net weight and in Area 3A, the GHL was set at 3,650,000 lb (1,655.6 mt) net weight. When the Council recommended these GHLs, halibut stocks were considered to be near record high levels of abundance. To accommodate decreases and subsequent increases in abundance, the Council recommended a system of step-wise adjustments in each GHL based on a predetermined uniform measure of stock abundance. The measure used was the CEY determined annually by the IPHC. Specifically, the Council linked a step-wise reduction in the GHL in any one year to the decrease in the CEY as compared to the 1999 through 2000 average CEY. For example, if the halibut stock in Area 2C were to fall from 15 to 24 percent below its 1999 through 2000 average CEY, then the GHL for Area 2C would be reduced by 15 percent. Conversely, as the CEY increased from low levels, the GHL also would increase in the same step-wise manner. Regardless of how high the CEY may rise above its 1999 through 2000 average, however, the GHLs were not designed to increase above their maximum amounts. Since 2003 when the GHLs became effective, they have never been reduced below their maximum level because declines in the total CEY have not been sufficient to trigger the first step reduction of the GHLs. Recent Harvests of Halibut in Areas 3A and 2C In Area 3A, the commercial and sport harvest of halibut over the past 10 years (1997 through 2006) has been estimated by the IPHC to average about 28.999 million lb (13,153.9 mt) per year. Of this amount, the commercial fishery accounts for about 77.9 percent, the sport fishery (guided and unguided combined) accounts for about 16.8 percent, and the remaining 5.3 percent may be attributed to subsistence, bycatch, and wastage combined. Estimates of the subsistence harvest of halibut have been made based on surveys conducted by the Alaska Department of Fish and Game (ADF&G) only in the past three years and average about 379,000 lb (171.9 mt) per year. In the most recent three years (2004 through 2006), the annual average of total halibut removals in Area 3A is 32.894 million lb (14,920.6 mt), of which the commercial fishery has taken about 76.8 percent, the sport fishery has taken about 17.6 percent, the subsistence fishery has taken about 1.2 percent, and about 4.4 percent is attributed to bycatch and wastage. The commercial fishery is the primary user of the halibut resource in Area 3A followed by the sport fishery, which together account for almost 95 percent of the total removals from the halibut resource. The sport fishery in Area 3A, comprised of guided fishing on charter vessels and unguided angling, has harvested an annual average of 5.142 million pounds (2,332.4 mt) over the past 10 years (1997 through 2006), of which about 63 percent is taken by the charter vessel sector. In the most recent three years (2004 through 2006), however, the average annual sport fishing harvest has increased slightly to 5.789 million pounds (2,625.9 mt) and the charter vessel sector proportion of this catch has increased to 65.1 percent. In Area 2C, the commercial, sport and subsistence harvest of halibut over the past 10 years (1997 through 2006) has been estimated by the IPHC to average about 12.454 million lb (5,649.3 mt) per year. Of this annual average total removal from the halibut resource, the commercial fishery accounts for about 76.7 percent, the sport fishery (guided and unguided combined) account for about 19.1 percent, and the remaining 4.2 percent may be attributed to subsistence, bycatch, and wastage combined. Estimates of the subsistence harvest of halibut have been made based on surveys conducted by ADF&G only in the past three years and average about 600,000 lb (272.2 mt) per year. In the most recent three years (2004 through 2006), the annual average of total halibut removals in Area 2C is 14.142 million lb (6,414.8 mt) of which the commercial fishery has taken about 73.8 percent, the sport fishery has taken about 20.7 percent, the subsistence fishery has taken about 4.3 percent, and about 1.2 percent is attributed to bycatch and wastage. Clearly, the commercial fishery is the primary user of the halibut resource in Area 2C followed by the sport fishery, which together account for almost 95 percent of the total removals from the halibut resource. In Area 2C, the sport fishery is comprised of guided fishing on charter vessels and unguided angling. The latter is done primarily by residents of Southeast Alaska and their visiting family and friends, while the former is done primarily by non-resident tourists. The linkage between guided sport fishing and tourism is apparent from data collected by ADF&G and compiled by IPHC staff. Over the past 10 years (1997 through 2006), the average guided harvest of halibut has been 1.431 million lb (649.1 mt) per year and the unguided sport harvest of halibut has amounted to 0.951 million lb (431.4 mt) per year. Proportionately, the guided charter vessel harvest to unguided sport harvest has been a ratio of about 60 to 40 percent. The guided sport harvest has increased in more recent years. Over the past five years (2002 through 2006), the annual guided sport charter vessel harvest amounted to an average 63.9 percent of the total sport harvest of halibut in Area 2C, and in 2005 reached a record 69.8 percent of the total sport harvest. In response, the Council is considering a management program to restrict the charter vessel harvest of halibut. Since their implementation in 2003, the GHLs for Areas 3A and 2C have been exceeded by the estimated charter vessel halibut harvest in 2004, 2005, and 2006. In Area 3A, based on ADF&G sport fishing survey data, the charter vessel harvest in 2003 was seven percent under the GHL, but in 2004 and 2005, it was one percent over the GHL for Area 3A each year. In 2006, the GHL for Area 3A was projected to be exceeded by nine percent, or 297,000 lb (134.7 mt). In Area 2C, based on ADF&G sport fishing survey data, the charter vessel harvest in 2003 was one percent under the GHL, but in 2004 and 2005, it was 22 percent and 36 percent over the GHL, respectively. In 2006, based on sport fishing survey data the GHL for Area 2C was projected to be exceeded by 42 percent, or 596,000 lb (270.3 mt). Management Agency Response At its annual meeting in January 2007, the IPHC adopted a motion to recommend reducing the daily bag limit for anglers fishing on charter vessels in Areas 2C and 3A from two halibut to one halibut during certain time periods. Specifically, the IPHC recommended that the one-fish bag limit should apply to guided anglers in Area 2C from June 15 through July 30, and in Area 3A from June 15 through June 30. In Area 3A, the one-fish bag limit restriction applicable for two weeks in June would reduce the charter vessel harvest of halibut by an estimated 326,000 lb (147.9 mt). In Area 2C, the one-fish bag limit restriction applicable for six weeks would reduce the charter vessel harvest of halibut by an amount estimated to range from 397,000 lb (180.1 mt) to 432,000 lb (195.9 mt). The IPHC intended the reduced bag limits to apply until superseded by measures developed by the Council and implemented by the Secretary that would more effectively manage the charter vessel harvest of halibut. The IPHC recommended these harvest restrictions because it believed its management goals were at risk by the magnitude of the halibut harvest by the charter vessel sector in excess of the GHLs in Areas 3A and 2C. In taking this action, the IPHC Commissioners highlighted its preference for the Council to resolve the allocation issue between commercial and sport sectors. One reason given for delaying the effective date of the reduced bag limit until June 15 was to afford the Secretary time to resolve the issue under U.S. domestic law with regulations that would achieve “comparable reductions” in halibut harvest by the charter vessel fishery. In a letter to the IPHC on March 1, 2007, the Secretary of State, with concurrence from the Secretary, rejected the recommended one-fish bag limit in Areas 2C and 3A, and indicated that appropriate reduction in the charter vessel harvest in these areas would be achieved by a combination of ADF&G and NMFS regulatory actions. For Area 3A, the State of Alaska (State) Commissioner of Fish and Game issued an emergency order on January 26, 2007 (No. 2-R-3-02-07), prohibiting a sport fishing guide and a sport fishing crewmember working on a charter vessel in salt waters of Southcentral Alaska from retaining fish while clients are onboard the vessel. Also, the emergency order limits the maximum number of lines that may be fished from a charter vessel to the number of paying clients onboard the vessel. This emergency order will be effective from May 1, 2007, through December 31, 2007. The State estimates that this action will reduce the harvest of halibut on charter vessels in Area 3A by 7.7 percent to 10.6 percent of the 2006 harvest or 306,000 lb (138.8 mt) to 421,000 lb (191.0 mt). Assuming the charter halibut fishery in Area 3A in 2007 is similar to the fishery in 2006, this reduction in the charter halibut harvest is expected to produce a charter halibut harvest of about 3.662 million lb (1,661.1 mt) to 3.547 million pounds (1,609.3 mt), a volume range that brackets the GHL for Area 3A. Hence, NMFS and ADF&G will rely on the effectiveness of the State's emergency order by itself to make comparable reductions in the charter vessel halibut harvests in Area 3A, which allows this proposed rule to focus only on managing the charter vessel fishery for halibut in Area 2C. No further regulatory action by NMFS is necessary to manage the 2007 charter vessel halibut fishery in Area 3A. In Area 2C, an emergency order to prohibit retention of fish by charter vessel guides and crewmembers in Area 2C also was issued by the State in 2006 and again in 2007 (No. 1-R-02-07). This action alone, however, would not likely reduce the 2007 charter vessel harvest of halibut to levels comparable to the IPHC-recommended bag limit reduction, an amount estimated to range from 397,000 lb (180.1 mt) to 432,000 lb (195.9 mt). Regulatory action to remedy this problem by June 2007 would require the Secretary to developed regulations independent of the Council process. Therefore, NMFS developed alternatives for analysis in an EA/RIR/IRFA (see ADDRESSES ). The goal of the restrictive measures analyzed in the EA/RIR/IRFA is to reduce sport fishing mortality of halibut in the charter vessel sector in Area 2C to a level comparable to the level that would be achieved by the IPHC-recommended regulations and in a manner that would reduce adverse impacts on the charter fishery, its sport fishing clients, the coastal communities that serve as home ports for this fishery, and on fisheries for other species. The one-fish bag limit recommended by the IPHC would have had negative economic impacts on the charter vessel industry in Area 2C. Comments from charter vessel guides before, during, and after the IPHC meeting in January 2007, have indicated that changing the bag limit for anglers on charter vessels from two fish to one fish per day for a six-week period from June 15 to July 31 would have an adverse impact on charter vessel bookings that had already, or were in the process of being, made for the 2007 season. This change was perceived by the affected public as adversely affecting demand for guided charter services during that period. Charter vessel operators and representatives stated that the ability to offer an opportunity to harvest more than one fish was important for their charter business. Hence, NMFS was guided in formulating regulatory alternatives for analysis by a need to reduce the charter vessel fishery's amount of halibut harvest in Area 2C to a level comparable to the level that would have been achieved by the IPHC-recommended one-fish bag limit while preserving a two-fish bag limit that would minimize adverse impacts on the guided sport industry. The Proposed Action For the reasons described above, NMFS proposes a change to regulations at 50 CFR 300.65 that would allow a daily bag limit of two halibut per sport fishing client on a charter vessel operating in Area 2C provided that at least one of the two halibut retained is no longer than 32 in (81.3 cm) with its head on. If only one halibut is retained by the sport fishing client, it could be of any length. The ADF&G has estimated that a maximum size restriction for one of two potential fish taken by charter vessel clients would reduce the overall harvest in Area 2C by the charter vessel sector by about 425,000 lb (192.8 mt), which is about 98 percent of the maximum amount of the poundage range estimated that could be reduced as a result of the IPHC-recommended one-fish bag limit during the six-week period, June 15 - July 31. NMFS considered other alternative restrictions to the proposed action in addition to the status quo alternative. These included
(1)a two-halibut bag limit that required at least one of the retained fish to have a minimum size of four optional lengths 45 in (114 cm), 50 in (127 cm), 55 in (140 cm), or 60 in (152 cm), and
(2)a two-halibut bag limit that required both retained fish to be at least 32 in (81.3 cm) long. An alternative of a one-fish bag limit identical to the IPHC-recommended restriction was considered but rejected because it would fail to meet the goal of providing charter vessel anglers with an opportunity to harvest two halibut per day. The proposed restriction was selected over the other two-fish bag limit alternatives for the following four reasons: 1. The status quo alternative of allowing a two-fish bag limit without further restriction would not reduce the charter vessel halibut harvest below what it was in 2006. This would be counter to the commitment to substitute a regulation for the IPHC-recommended bag limit reduction that would result in a comparable reduction in charter vessel harvest of halibut. 2. A two-fish bag limit that would require both retained halibut to be at least 32 in (81.3 cm) long would not result in a reduction of poundage taken by the charter vessel sector, and could have the reverse effect. 3. A minimum size limit of at least 45 in (114 cm) for one of the two halibut harvested under a two-fish bag could reduce the charter vessel sector harvest in Area 2C by an estimated 434,000 lb (196.9 mt). Anecdotal information suggests, however, that a minimum size limit may disadvantage charter businesses operating in areas where small halibut are typically caught. This restriction would be a de facto one-fish bag limit for operators in areas with fewer large halibut. In addition, a minimum size limit would stimulate searching for big halibut which could result in increased catch-and-release mortality of smaller fish. The increased search for the “trophy” sized fish also could increase the bycatch of other species such as rockfish, which typically do not survive being caught and released, or lingcod. 4. A maximum size limit of 32 in (81.3 cm) for one of the two halibut harvested under a two-fish bag would provide an appropriate reduction in charter vessel harvest in Area 2C while also reducing the potential difficulties with a minimum size limit. Specifically, charter operators fishing in waters where small halibut are typically caught would likely be able to provide their clients with a good chance of harvesting two fish. This maximum size limit also would likely reduce the bycatch and catch-and-release mortality that would be expected from searching for a “trophy” fish of a larger minimum size limit. For halibut harvested on a charter vessel in Area 2C, the proposed regulation would prohibit the possession of halibut that are disfigured in a manner that prevents the determination of their length or number harvested. This regulation is necessary to allow Federal enforcement officers to determine the number of halibut harvested and the head-on length for halibut subject to the previously described 32 inch maximum size requirement. Charter vessel operators would be allowed under the proposed regulation to fillet halibut onboard the charter vessel; however, the intact carcass (i.e., a carcass with the head attached to the tail) must be retained onboard the vessel until all fillets are offloaded. An intact carcass is required because enforcement officers cannot otherwise determine the head-on length of a halibut filleted at sea. Finally, definitions for “Area 2C” and “head-on length” are added. These definitions are based on the most recent annual management measures authorized by 50 CFR 300.62 and published in the **Federal Register** on March 14, 2007 at 72 FR 11792. The term “Area 2C” is defined in the annual management measures at section 6(3). The Area 2C definition used in this action is identical to that in section 6(3) and repeated for the convenience of the reader. The term “head-on length” is not defined in the annual management measures, however, it is described in section 13, “Size limits,” in terms of the method by which the size of halibut is to be determined. It is a straight line measurement passing over the pectoral fin from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail. This definition is consistent, therefore, with the measurement method used in the commercial halibut fishery. Classification An Initial Regulatory Flexibility Analysis was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact that this proposed rule, if adopted, would have on directly regulated small entities. A copy of this analysis is available from NMFS (see ADDRESSES ). A description of this action, why it is being considered, and the legal basis for this action are presented above in the preamble to this rule. A summary of the analysis follows. The action under consideration would modify the two fish daily bag limit for halibut imposed on guided charter clients in IPHC Area 2C to require that one of the two fish be no more than 32 in (81.3 cm) long. The entities directly regulated by this action would be the guided charter operations active in harvesting halibut in IPHC Area 2C (Southeast Alaska). In 2005, 381 guided charter businesses operating 654 vessels indicated bottomfish harvesting effort in Area 2C. All of these operations are believed to be small entities, with annual gross revenues of less than the limit of $6.5 million dollars for charter vessels. The largest companies involved in the fishery, lodges or resorts that offer accommodations as well as an assortment of visitor activities, may be large entities under the Small Business Administration size standard. Key informant interviews have indicated that the absolute largest of these companies may gross more than $6.5 million per year, but that it was also possible that all of the entities involved in the charter halibut harvest grossed less than this amount. The number of small entities is likely to be overestimated because of the limited information on vessel ownership and operator revenues. However, it is likely that nearly all entities qualify as small businesses. This proposed action is expected to reduce the halibut catches per guided trip for these operations, and could reduce the demand for their services, the overall harvests in the guided sport fishery, and the growth of the fishery. This is believed to be a competitive industry. This action may reduce short-term profit levels or create short-run losses for charter vessel operators. In the long run, entry or exit by firms in this industry, in response to positive or negative profits, should tend to drive profits to zero. Very little systematic information is available on charter boat operations or on how charter boat clients and operators may respond to the size limit. The demand for charter boat trips depends on a number of factors affecting the nature of the experience, and the halibut catch per unit of effort is only one of these. It is not possible to predict quantitatively the impact on gross or net revenues, or on entry or exit from the industry. NMFS has examined three alternatives to this action. Alternative 1, the status quo, would retain the two-fish bag limit without changes. This alternative would fail to meet a key objective of the action, which is to reduce the guided sport harvest by an amount comparable to the reduction that would have been achieved by the IPHC bag limit recommendation. Alternative 2 would have kept the two-fish bag limit, but impose a season-long 45-inch (114 cm) or larger minimum size restriction on the second fish. The 45-inch (114 cm) limit associated with this alternative would have generated guided harvest reductions comparable to those of the IPHC recommendation and thus the expected harvest reduction would have been close to the preferred alternative. However, Alternative 2 would have required guides to measure larger, heavier fish than the preferred alternative, which would have increased the difficulty of compliance for the guides. Moreover, in areas with halibut of a smaller size, larger fish might be more difficult to find than smaller fish. If fish larger than 45 inches (114 cm) were scarce in some areas, the minimum size limit could have a similar impact to a one fish bag limit. Such an impact would be more burdensome to charter vessel operators in those areas than operators in areas where larger fish were more common. Alternative 3 would impose a minimum size limit of 32 inches (81.3 cm) on both fish for the fishing season (currently February 1 to December 31). NMFS does not prefer this alternative because of uncertainties about its effect on reducing harvest. In particular, this alternative may actually increase the pounds of fish harvested in the charter fishery because anglers would be required to harvest larger halibut than they may otherwise harvest under the current bag limit. Alternative 4 would allow anglers to harvest one halibut of any size and one halibut with a total length at least 30 inches (76.2), 32 inches (81.3 cm), or 35 inches (88.9 cm). Of these options, NMFS preferred a size limit of 32 inches (81.3 cm) because its estimated harvest reduction is the most comparable to the IPHC-recommended action. The estimated harvest reduction for the preferred alternative is approximately 425,000 lb (192.8 mt). The enforcement of a size limit requires charter vessel operators to retain the halibut carcass until the fillets are offloaded from the vessel. To an unknown extent, proper disposal of the carcasses may increase costs to charter vessel operators. This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules. This proposed rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866. This proposed rule complies with the Halibut Act and the Secretary's authority to implement allocation measures for the management of the halibut fishery. No duplicative or overlapping rules exist that are associated with this proposed rule. This proposed action is consistent with E.O. 12962 which directs Federal agencies to improve the quantity, function, sustainable productivity, and distribution of aquatic resources for increased recreational fishing opportunities “to the extent permitted by law and where practicable.” This E.O. does not diminish NMFS' responsibility to address allocation issues, nor does it require NMFS or the Council to limit their ability to manage recreational fisheries. E.O. 12962 provides guidance to NMFS to improve the potential productivity of aquatic resources for recreational fisheries. This proposed rule does not diminish that productivity or countermand the intent of E.O. 12962. List of Subjects in 50 CFR Part 300 Fisheries, Fishing, Reporting and recordkeeping requirements, Treaties. Dated: April 2, 2007. John Oliver Deputy Assistant Administrator for Operations. National Marine Fisheries Service. For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 300 as follows: PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart E—Pacific Halibut Fisheries 1. The authority citation for 50 CFR part 300, subpart E, continues to read as follows: Authority: 16 U.S.C. 773-773k. 2. In § 300.61, definitions for “Area 2C” and “Head-on length” are added, in alphabetical order, to read as follows: § 300.61 Definitions. *Area 2C* includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58°11′54″ N. lat., 136°38′24″ W. long.) and south and east of a line running 205° true from said light. *Head-on length* means a straight line measurement passing over the pectoral fin from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail. 3. In § 300.65, paragraphs
(d)through
(k)are redesignated as
(e)through (l), respectively, and new paragraph
(d)is added to read as follows: § 300.65 Catch sharing plan and domestic management measures in waters in and off Alaska.
(d)In Commission Regulatory Area 2C, halibut harvest on a charter vessel is limited to no more than two halibut per person per calendar day provided that at least one of the harvested halibut has a head-on length of no more than 32 inches (81.3 cm). If a person sport fishing on a charter vessel in Area 2C retains only one halibut in a calendar day, that halibut may be of any length. 4. In § 300.66, paragraph
(m)is added to read as follows: § 300.66 Prohibitions.
(m)Possess halibut on board a charter vessel in Area 2C that has been mutilated or otherwise disfigured in a manner that prevents the determination of size or number of fish, notwithstanding the requirements of the Annual Management Measure 25(2) and
(7)(as promulgated in accordance with § 300.62 and relating to Sport Fishing for Halibut). Filleted halibut may be possessed on board the charter vessel provided that the entire carcass, with the head and tail connected as single piece, is retained on board until all fillets are offloaded. [FR Doc. E7-6422 Filed 4-5-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070322065-7065-01; I.D. 030607C] RIN 0648-AV39 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 13 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes regulations to implement measures in Amendment 13 to the Atlantic Sea Scallop Fishery Management Plan (Scallop FMP). Amendment 13 was developed by the New England Fishery Management Council (Council) to permanently re-activate the industry-funded observer program in the Scallop FMP through a scallop total allowable catch
(TAC)and days-at-sea
(DAS)set-aside program that helps vessel owners defray the cost of carrying observers. Proposed measures for the observer service provider program in Amendment 13 include: Requirements for becoming an approved observer service provider; observer certification and decertification criteria; and notification requirements for vessel owners and/or operators. This proposed rule would require scallop vessel owners, operators, or vessel managers to procure certified fishery observers for specified scallop fishing trips from an approved observer service provider. Additionally, this proposed rule would allow adjustments to the observer program to be done through framework action. The measures in this proposed rule would enable NMFS to utilize the Scallop FMP's set-aside program that has been in place in the Scallop FMP since 1999. The set-aside program requires scallop vessel owners to pay for observers, whether or not scallop TAC or DAS set-aside is available, and compensates vessel owners with additional scallop catch or reduced DAS accrual rate if scallop TAC or DAS set-aside is available. Observer coverage in the scallop fishery is necessary to monitor the bycatch of finfish and interactions with threatened and endangered species. DATES: Public comments must be received no later than 5 p.m., eastern standard time, on May 7, 2007. ADDRESSES: Copies of Amendment 13, the public hearing document, and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council (Council), 50 Water Street, Newburyport, MA 01950. These documents are also available online at *http://www.nefmc.org* . Amendment 13 is categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement. Written comments should be submitted by any of the following methods: • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Amendment 13 Proposed Rule.” • E-mail to the following address: *ScallopAmendment13@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier: “Comments on Scallop Amendment 13 Proposed Rule”; • Fax: 978-281-9135 • Electronically through the Federal e-Rulemaking portal: *http//www.regulations.gov* . Written comments regarding the burden-hour estimate or other aspects of the collection-of-information requirement contained in this proposed rule should be submitted to the Regional Administrator at the address above and by e-mail to *David_Rostker@omb.eop.go* v, or fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy Analyst, phone 978-281-9272, fax 978-281-9135. SUPPLEMENTARY INFORMATION: Background Since 1999, NMFS has required scallop vessels operating in Scallop Access Areas to pay for observer coverage. This provision operated effectively through a contractual arrangement with an observer provider until June 2004, when the Department of Commerce informed NMFS that it could not renew the contract without resolving possible conflicts with the Miscellaneous Receipts Act and policies regarding augmentation of appropriations. The contract arrangement had enabled vessel owners to pay the observer provider directly for observer deployments, with details of the observer deployment requirements specified through the contract. The expiration of the contract arrangement eliminated the mechanism allowing vessel owners to pay for observer coverage. Even though the mechanism allowing vessel owners to pay for observer coverage was inoperable, the Council continued to establish specifications for the scallop fishery that included set-asides (TAC and DAS, depending on fishing area) that could be harvested on observed trips to offset the cost to the industry of observers. Existing scallop regulations specify set-asides through February 29, 2008, and require that industry must pay for observer coverage, even if set-asides have been exhausted. For vessels fishing in the Scallop Access Areas, the Council has allocated a portion of the total projected scallop catch to defray the observer costs for vessel owners. Scallop vessels selected to carry observers on access area trips are authorized to land additional scallops on these observed trips to help offset the cost of the observer. An additional set-aside of a reduced DAS accrual rate is allocated to pay for the cost of observers on observed trips in open areas. Observer coverage in the scallop fishery is necessary to monitor groundfish bycatch, particularly yellowtail flounder bycatch in the Scallop Access Areas within the groundfish closed areas. It is also needed to monitor interactions between the scallop fishery and sea turtles. Through fiscal year
(FY)2005, the Northeast Fisheries Science Center (NEFSC) funded the necessary levels of observer coverage in the scallop fishery to evaluate bycatch of groundfish and sea turtles by utilizing carryover funding from FY 2004. However, in FY 2006, the NEFSC's level of funding for the observer program provided for only minimal observer coverage in the scallop fishery. This meant that observer coverage was constrained to levels less than what would be necessary for sufficient monitoring of the yellowtail flounder bycatch total allowable catch
(TAC)in Scallop Access Areas and interactions between the scallop fishery and sea turtles in the Mid-Atlantic during June through October. To provide for sufficient observer coverage to monitor the scallop fishery, NMFS re-activated the industry-funded observer program, wherein scallop vessels would be required to procure observer coverage from a NMFS-approved observer provider, on June 16, 2006 (71 FR 34842), via emergency rule. The emergency rule established a program that allowed observer service providers meeting specified criteria to be approved by NMFS. NMFS-approved observer service providers were then able to deploy observers on scallop vessels. The emergency rule also established the requirement that vessel owners are required to procure observers from a NMFS-approved observer service provider, and must pay for the observer. The emergency rule was extended through June 11, 2007 (71 FR 69073, November 29, 2006). Extending the emergency rule provided for observer coverage to continue to gather complete fishing year data on the scallop fishery and monitor fishery interactions with sea turtles in early spring. The Council developed Amendment 13 to permanently re-active the industry-funded scallop observer program implemented in 2006. At its February 6-8, 2007, meeting, the Council voted to adopt Amendment 13 for submission to NMFS, and submitted the document and associated analyses on February 16, 2007. The Council held one public hearing on Amendment 13 on February 7, 2007, in Portsmouth, NH, in conjunction with the Council's February meeting. Proposed Measures To provide for observer coverage in the scallop fishery when the Scallop Access Areas re-open on June 15, 2007, and into the future, this action would permanently re-activate the industry-funded scallop observer program that was implemented in 2006 via emergency rule. Like the emergency rule, this action would require scallop vessels to procure observer coverage from a NMFS-approved observer service provider. This action proposes criteria to be met in order for an entity to be approved by NMFS as an observer service provider, proposes the requirements for certification and decertification of observers for the scallop fishery, and proposes vessel notification requirements. Lastly, this action proposes to provide a framework mechanism to implement future adjustments to the scallop observer program. Observer program requirements proposed in this action were developed to provide for the accurate and timely collection of unbiased data and to minimize conflict of interest issues. The proposed requirements were also designed to be consistent with national NMFS observer standards and were based upon NMFS observer program requirements in Alaskan fisheries, but modified to meet the needs and objectives of the Northeast Regional Office
(NERO)and NEFSC. Since implementation via emergency rule in June 2006, the proposed industry-funded observer program has been successful, as it provided sufficient observer coverage for the scallop fishery and allowed NMFS to maintain sufficient operational standards and data quality control. Observer Service Provider Requirements This proposed action would allow any entity to become an observer service provider if it meets the proposed approval and responsibilities criteria. Potential observer service providers would be required to submit an application containing detailed information such as contact information, description of past experience with placing individuals in remote field and/or marine environments, evidence of adequate insurance to cover injury, liability and accidental death for observers during employment, and proof of compensation for observers while employed that meet or exceed Department of Labor guidelines. Entities interested in being included on the list of NMFS-approved observer service providers would be required to submit an application with the information proposed in the regulatory text of this action. Upon receipt of an application, NMFS would provide all potential observer service providers with an estimated number of observer sea days for this fishing year under the proposed program. Additionally, a planned schedule of observer deployments would be posted on this NOAA website: *http://www.nefsc.noaa.gov/femad/fsb/* . NMFS would notify candidate observer service providers of their approval or disapproval within 15 days of its receipt of their applications. If approved, the observer service provider's name would be added to the list of NMFS-approved observer service providers. Observer service providers would be required to comply with all observer support, deployment logistics and limitations, communication, training, reporting, and conflict of interest requirements proposed in the regulatory text of this action. Observer service providers would also be responsible for setting the daily cost of observer coverage on a vessel. NMFS would continue to be responsible for determining the reduced DAS accrual rate and TAC for the set-aside program to defray the cost of observer coverage through biennial specifications. This proposed NMFS-approval process would maintain quality control of the data collected, but would not have potential conflicts with augmentation of appropriations law and policy. This action proposes a few minor changes from the observer service provider requirements implemented by emergency rule. The cost of training/certifying scallop observers is borne by NMFS. To facilitate cost-effective training/certification, this action proposes that a minimum class size of eight observers, which may be split among multiple observer service providers, be required for the scallop observer training class operated by the Northeast Fisheries Observer Program (NEFOP). Training classes with fewer than eight participants would be delayed until at least eight participants were enrolled. This action also proposes that an approved observer service provider would be required to maintain in its employ at least eight observers that had been certified through the scallop observer training class operated by NEFOP. The emergency rule implemented an observer service provider requirement that an observer's first deployment shall be on a Scallop Access Area trip and that the resulting data be edited and approved by NMFS prior to any further deployments. Specifying details of new observer's first deployment was designed to provide the necessary oversight to ensure the collection of timely and accurate data. However, NEFOP has learned that requiring an observer's first deployment and the resulting data be edited and approved by NMFS, prior to any further deployments, is sufficient for quality control, and that requiring an observer's first deployment be on a Scallop Access Area trip may limit the availability of observers to provide coverage on scallop trips to open areas. Therefore, the requirement that an observer's first deployment and the resulting data be edited and approved by NMFS, prior to any further deployments is proposed in this action, but the requirement that an observer's first deployment shall be on a Scallop Access Area trip is not proposed in this action. Observer Certification Requirements This action proposes that employees of observer service providers must meet the NMFS National Minimum Eligibility Standards available at *http://www.st.nmfs.gov/st4/nop/* and must pass the NEFOP training course and be physically and mentally capable of carrying out the responsibilities of an observer. NMFS has the authority to review observer certification and issue observer certification probation and/or decertification if warranted. One minor addition to the observer certification requirements implemented by emergency rule is that this action proposes that all observers would be required hold a current Red Cross (or equivalent) cardiopulmonary resuscitation certificate. Removal/Decertification Requirements This proposed action would specify criteria and protocols for removal of an observer service provider from the list of NMFS-approved observer service providers and the probation and decertification of an observer. Vessel Requirements Proposed in this action are general requirements for scallop vessels, notification procedures, and requirements of the vessel if it is selected to carry an observer. Vessels are responsible for paying the cost of a observer, regardless of whether the vessel lands or sells scallops on that trip, and regardless of the availability of set-aside TAC or reduced DAS accrual rate. The emergency rule required that vessels contact NMFS prior to the 25th day of the month preceding the month in which it intends to fish. This requirement was designed by NMFS to provide NEFOP with a estimate of fishing effort to expect in the following month, so that observer coverage needs could be met. However, NEFOP has found that it does not need this provision to meet coverage needs; therefore, NMFS is not proposing that notification requirement in this action. Future Adjustments to the Observer Program Lastly, this action proposes a framework mechanism to implement future adjustments to the scallop observer program. Under the Scallop FMP, and in accordance with the Administrative Procedure Act, the framework process allows for abbreviated rulemaking if the Secretary of Commerce finds good cause to waive the requirement for a proposed rule and opportunity for public comment. Currently, adjustments to the observer program must be made through an amendment to the Scallop FMP. Providing for a framework mechanism in the Scallop FMP to make adjustments to measures implemented for the observer program would allow the Council more flexibility to develop improvements to the observer program. Public comments are being solicited on Amendment 13 and its incorporated documents through the end of the comment period, May 18, 2007, stated in the notice of availability
(NOA)for Amendment 13 (72 FR 12749, March 19, 2007). Public comments on the proposed rule must be received by May 18, 2007, the end of the comment period specified in the NOA for Amendment 13, to be considered in the approval/disapproval decision on the amendment. All comments received by May 18, 2007, whether specifically directed to Amendment 13 or the proposed rule, will be considered in the approval/disapproval decision on Amendment 13. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 13. To be considered, comments must be received by close of business on the last day of the comment period. Current scallop observer program regulations, implemented via emergency rule, will expire on June 11, 2007. This action proposes to make minor modifications to those regulations and make them permanent. Classification At this time, NMFS has not determined that the amendment this proposed rule would implement is consistent with the national standards of the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule maintains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), previously approved under control number 0648-0546 in conjunction with the emergency action and currently under review for renewal. If approved by OMB, the requirements under 0648-0546 would remain in place even after the expiration of the emergency rule for use under the authority of Amendment 13, provided Amendment 13 is approved and implemented. These requirements apply to entities interested in becoming NMFS-approved observer service providers and to those observer service providers approved by NMFS and providing observer services to the scallop fishery. Public reporting burden for these collections of information are estimated to average as follows: 1. Application for approval of observer service provider - 10 hr per response; 2. Applicant response to denial of application for approval of observer service provider -10 hr per response; 3. Observer service provider request for observer training - 30 min per response; 4. Observer deployment report - 10 min per response; 5. Observer availability report - 10 min per response; 6. Safety refusal report - 30 min per response; 7. Submission of raw observer data - 5 min per response; 8. Observer debriefing - 2 hr per response; 9. Biological samples - 5 min per response; 10. Rebuttal of pending removal from list of approved observer service providers - 8 hr per response; 11. Vessel request to observer service provider for procurement of a certified observer - 25 min per response; and 12. Vessel request for waiver of observer coverage requirement - 5 min per response. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* ,or fax to
(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section. A copy of this analysis is available from the Council (see ADDRESSES ) or NMFS at *http://www.nero.noaa.gov* . A summary of the analysis follows: Statement of Objective and Need The objective of this action is to re-activate the industry-funded observer program for the scallop fishery. Observer coverage is necessary in the scallop fishery to monitor bycatch of finfish and interactions with endangered and threatened species. The need for this action is to provide a mechanism to approve observer service providers so that the set-aside program can be utilized to help defray costs of carrying the necessary level of observers in the scallop fishery. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to this proposed rule and is not repeated here. Description and Estimate of Number of Small Entities to Which the Rule Would Apply The vessels in the scallop fishery could be considered small business entities because all of them grossed less than $4 million, according to the dealer's data, for 2004 to 2006. The proposed action would affect vessels with limited access and general category scallop permits. According to the recent permit data, there were 318 vessels that obtained full-time limited access permits in 2006, including 55 small-dredge and 14 scallop trawl permits. In the same year, there were also 32 part-time and 1 occasional limited access permit in the scallop fishery. In addition, 2,501 permits were issued to vessels in the open access general category and over 500 of these vessels landed scallops during the last 2 years. These numbers could change as the fishing year progresses. Based on this information, the proposed action is expected to have impacts on a substantial number of small entities. There are no large entities participating in this fishery, as defined in section 601 of the RFA. Therefore, there are no disproportionate economic impacts on small entities. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. It maintains requirements approved in conjunction with the emergency action. Economic Impacts of the Proposed Action Compared to Significant Non-Selected Alternatives Proposed Action Previous scallop regulatory actions established provisions that impose some cost on vessels that participate in the scallop fishery by requiring vessels to carry and pay for observers on some trips. Compliance costs associated with the observer coverage can be minimized through the set-aside (i.e., TAC and DAS, depending on fishing area) that will provide compensation to vessel owners that have paid for observers. This action re-activates the mechanism that allow vessels to offset the costs of observer coverage and harvesting additional scallops from the set-aside. The net impacts of the observer program on vessels that participate in the scallop fishery will depend on scallop prices, trip costs, observer costs, and the TAC or reduced DAS accrual rate provided by NMFS. The analyses presented in Amendment 13 showed that, in some circumstances, observer coverage could reduce crew and vessel income by extending the trip and increasing the trip costs, especially for vessels with a lower catch rate per DAS. But in most cases, overall costs due to the observer coverage will be minimized, and may even yield positive economic benefits, due to the compensation that would be provided by NMFS. The average total revenue for a general category vessel was $139,755 for the first 11 months of the 2006 fishing year, $249,167 for fishing year 2005, and $260,942 for fishing year 2004. Assuming that the cost of an observer would be $800 per day-at-sea (or $33.30 per hour, slightly higher than the $775 paid by vessels during the 2006 fishing year), average observer costs per general category vessel were estimated to be about $1,440 per trip in 2006. A cost of $1,400 per vessel for the year, assuming that each vessel carries an observer on only one trip, would amount to about 1 percent of total revenue. Similarly, the average total revenue of a limited access vessel was $803,873 for the first 11 months of the 2006 fishing year, $1,072,991 for fishing year 2005, and $988,401 for fishing year 2004. Average observer costs per limited access vessel were $6,560 per trip in 2006. Again, assuming that each vessel carries an observer on only one trip, observer cost would amount to less than 1 percent of the total revenue. (These are the amounts paid to the observer provider and do not include compensation through TAC or DAS set-asides.) Because of the set-aside, compliance costs to scallop vessels are expected to be considerably less than these amounts, under most circumstances. However, as described previously, if there is no set-aside, or no remaining set-aside, to help pay for the observer coverage, the vessels would be responsible for paying the observer, regardless of whether the vessel lands or sells scallops on that trip. This has been the process since the set-aside program was implemented in 1999, but NMFS usually distributes the set-aside such that the majority, if not all trips with an observer aboard, are at least partially compensated. Economic impacts on scallop vessels, under several scenarios for both limited access and general category vessels, were analyzed in the IRFA for Amendment 13. Scenarios are based on set variables (i.e., trip costs, cost of observer, and the compensation (either TAC or DAS) provided by NMFS for carrying an observer) and fluctuating variables (i.e., landings per unit effort, price of scallops). While TAC compensation is provided by NMFS, vessels must incur additional costs to harvest the compensation TAC. Economic impacts on vessels in the scallop fleet are analyzed in the IRFA by considering set variables, fluctuating variables, and whether or not a vessel carries an observer for a trip. Although the IRFA in Amendment 13 analyzes several scenarios, the results are summarized as follows: For limited access vessels, fluctuating variables in the assumptions include: Landings per unit effort
(LPUE)ranging from 1,800 lb (816.5 kg) per DAS to 800 lb (362.9 kg) per DAS and scallop price ranging from $7.60 per lb to $6.00 per lb. Given the highest LPUE and highest price, a vessel's income could be expected to increase by about $9,280 with an observer onboard (from $61,560 without an observer, to $70,840 with an observer). A vessel's crew income could be expected to increase by about $10,722 with an observer (from $63,540 without an observer, to $72,282 with an observer). The increase in income when carrying an observer is due to the compensation for carrying an observer, either additional pounds (400 lb (181.4 kg) per day) or DAS (0.15 reduced accrual rate in open areas). With an LPUE of 800 lb (362.9 kg) per DAS and a price of $7.60 per lb, a vessel's income could be expected to decline by about $32 with an observer onboard (from $24,624 without an observer to $24,592 with an observer). A vessel's crew income could be expected to decline by about $1,619 with an observer (from $19,566 without an observer, to $17,947 with an observer). These decreases in income result from extended trip lengths to catch the additional pounds to pay for an observer. General category vessels are subject to the industry-funded observer provisions only when fishing in Scallop Access Areas and are compensated with additional pounds per trip. With a compensation of 400 lb (181.4 kg) per day, a vessel would cover observer costs of $1,600 by fishing 2 days and landing 1,200 lb (544.3 kg) of scallops (400 lb (181.4 kg) for the trip and 800 lb (362.9 kg) as compensation). At a price of $6.00 per lb, the vessel would generate $7,200 revenue from scallops, and would increase total crew income by $1,410 and vessel income by $1,440. At a scallop price of $7.60 per lb, vessels and crews could be expected to increase revenues even at a lower compensation rate. By fishing more days, a vessel could experience even more gains in revenue. For example, by fishing 3.5 days and receiving 1,600 lb (725.7 kg) in compensation, total scallop revenue could increase to $15,200 at a price of $7.60 per lb, increasing both crew and vessel income by over $4,000. These positive impacts on vessels are due to the fact that general category vessels are not allowed to land more then 400 lb (181.4 kg) on regular trips and, even at a price of $6.00 per lb, a compensation amount of 400 lb (181.4 kg) could bring $2,400 in revenue, exceeding the cost of the observer and trip costs. However, if compensation pounds were set too low, or if prices decline below $6.00 per lb, the economic gains from compensation for carrying an observer could decline. Observer coverage would improve information that could be used to reduce the amount of finfish bycatch and the level of sea turtle takes in the scallop fishery. This could eliminate the need for more conservative management measures in the future that may potentially have adverse impacts on the scallop industry. For these reasons and the reasons described above, the benefits of the observer program are expected to exceed costs of this program and have positive economic impacts on vessels participating in the scallop fishery. The proposed adjustment mechanism to the observer program through framework action could be used to reduce the differential impacts of this program on some vessels, such as by implementing different TAC amounts and DAS accrual rates for smaller vessels. The adjustments through framework could also provide more flexibility to the program in determining the amount of set-aside or the way the observer costs are shared among the vessels in the scallop fleet. Participation by potential observer service providers is voluntary and, since no Federal action is requiring participation, further assessment of the potential impacts on these entities is not required. No significant quantifiable impacts on scallop prices and change in benefits to the consumers are expected from this action, since the observer program is not expected to impact scallop landings in a significant way. Non-selected Alternatives The proposed action would permanently re-activate the industry-funded observer program in the Scallop FMP through a set-aside program that would help vessel owners defray the cost of carrying observers. The alternatives to the proposed action do not provide for an industry-funded observer program. Under the no action alternative, the emergency rule would expire and no regulations would be implemented allowing for funding in addition to that provided by NMFS under its existing observer program. However, as discussed previously, NMFS's current and anticipated funding would only provide for minimal observer coverage in the scallop fishery. Therefore, under the no action alternative, observer coverage levels would likely be less than sufficient for monitoring the yellowtail flounder bycatch TAC in Scallop Access Areas and interactions between the scallop fishery and sea turtles in the Mid-Atlantic during June through October. Due to implications of having minimal observer coverage (e.g., earlier closures based on less reliable bycatch estimates, closures to prevent interactions with sea turtles), no action would likely result in negative economic impacts (e.g., reduced fishing opportunity, reduced harvest) for the scallop industry in both the short and long-term. Without an industry-funded observer program, adequate observer coverage for the scallop fishery could only occur if provided wholly by NMFS. However, because of resource constraints, it is not realistically possible for NMFS to wholly fund an adequate level of observer coverage for the scallop fishery. The set-aside program is already an established provision in the scallop regulations and the measures in this proposed rule would only establish a mechanism to enable the set-asides to be utilized by the industry as compensation for having paid for observer coverage. Measures to modify and improve the set-aside program are outside the scope of Amendment 13. During the Council's public hearing on Amendment 13, the scallop industry expressed concern that the proposed action would not provide a complete solution to the economic impacts associated with having to pay for observers under the existing set-aside program. The scallop industry also acknowledged that there were no other alternatives, besides the proposed and no action alternatives, that could be considered in Amendment 13. Based on this public input, this action also proposes a mechanism to allow future modifications to the observer program to be implemented by framework action. Providing for a framework mechanism in the Scallop FMP to make adjustments to the observer program would allow more flexibility to address industry's concerns with the program. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: April 2, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.10, paragraph (b)(4) is revised to read as follows: § 648.10 DAS and VMS notification requirements.
(b)* * *
(4)*Atlantic sea scallop vessel VMS notification requirements.* Less than 1 hr prior to leaving port, the owner or authorized representative of a scallop vessel that is required to use VMS as specified in paragraph (b)(1) of this section must notify the Regional Administrator by entering the appropriate VMS code that the vessel will be participating in the scallop DAS program, Area Access Program, or general category scallop fishery. VMS codes and instructions are available from the Regional Administrator upon request. 3. In § 648.11, paragraphs
(a)introductory text and (a)(1) are revised, and paragraphs (g), (h), and
(i)are revised to read as follows: § 648.11 At-sea sampler/observer coverage.
(a)The Regional Administrator may request any vessel holding a permit for Atlantic sea scallops, NE multispecies, monkfish, skates, Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish, spiny dogfish, Atlantic herring, tilefish, or Atlantic deep-sea red crab; or a moratorium permit for summer flounder; to carry a NMFS certified fisheries observer. A vessel holding a permit for Atlantic sea scallops is subject to the additional requirements specified in paragraph
(g)of this section.
(1)For the purpose of deploying at-sea observers, sea scallop vessel owners are required to notify NMFS of scallop trips as specified in paragraph
(g)of this section. Unless otherwise notified by the Regional Administrator, owners of scallop vessels shall be responsible for paying the cost of the observer for all scallop fishing trips on which an observer is carried onboard the vessel, regardless of whether the vessel lands or sells sea scallops on that trip, and regardless of the availability of set-aside for an increased possession limit, or reduced accrual rate of DAS.
(g)*Atlantic sea scallop observer program* —(1) *General.* Unless otherwise specified, owners, operators, and/or managers of vessels issued a Federal scallop permit under § 648.4(a)(2), and specified in paragraph
(b)of this section, must comply with this section and are jointly and severally responsible for their vessel's compliance with this section. To facilitate the deployment of at-sea observers, all sea scallop vessels issued limited access permits fishing in open areas or Sea Scallop Access Areas, and general category vessels fishing under the Sea Scallop Access Area program specified in § 648.60, are required to comply with the additional notification requirements specified in paragraph (g)(2) of this section. All sea scallop vessels issued a VMS general category or Non-VMS general scallop permit that are participating in the Area Access Program specified in § 648.60 are required to comply with the additional VMS notification requirements specified in paragraph (g)(2) of this section. When NMFS notifies the vessel owner, operator, and/or manager of any requirement to carry an observer on a specified trip in either an Access Area or Open Area as specified in paragraph (g)(3) of this section, the vessel may not fish for, take, retain, possess, or land any scallops without carrying an observer. Vessels may only embark on a scallop trip in open areas or Access Areas without an observer if the vessel owner, operator, and/or manager has been notified that the vessel has received a waiver of the observer requirement for that trip pursuant to paragraphs (g)(3) and (g)(4)(ii) of this section.
(2)*Vessel notification procedures.* For the purpose of determining if an observer will be deployed on a vessel for a specific trip, the owner, operator, or manager of a vessel issued a limited access permit fishing in open areas or in the Sea Scallop Area Access program specified in § 648.60, or the owner, operator, or manager of a vessel issued a general category scallop permit and fishing in the Sea Scallop Area Access program specified in § 648.60, is required to comply with the following notification requirement. For each scallop trip, the vessel owner, operator, and/or manager shall notify NMFS by telephone, using the phone number provided by the Regional Administrator in the Small Entity Compliance Guide, and provide the following information: Vessel name and permit number; contact name and number; date and time of departure; port of departure; area to be fished (either open areas or the specific Sea Scallop Access Area); and whether fishing as a scallop dredge, scallop trawl, or general category vessel.
(3)*Selection of scallop fishing trips for observer coverage.* Based on predetermined coverage levels for various sectors of the scallop fishery that are provided by NMFS in writing to all observer service provider approved pursuant to paragraph
(h)of this section, NMFS shall notify the vessel owner, operator, or vessel manager whether the vessel must carry an observer, or if a waiver has been granted, for the specified trip within 24 hr of the vessel owner's, operator's, or vessel manager's notification of the prospective trip, as specified in paragraph (g)(2) of this section. Any request to carry an observer may be waived by NMFS. All waivers for observer coverage shall be issued to the vessel by VMS so as to have on-board verification of the waiver.
(4)*Procurement of observer services by scallop vessels.*
(i)An owner of a scallop vessel required to carry an observer under paragraph (g)(3) of this section must arrange for carrying an observer certified through the observer training class operated by the Northeast Fisheries Observer Program (herein after NMFS/NEFOP certified) from an observer service provider approved by NMFS under paragraph
(h)of this section. A list of approved observer service providers shall be posted on the NOAA/NEFOP website at *http://www.nefsc.noaa.gov/femad/fsb/* . The owner, operator, or vessel manager of a vessel selected to carry an observer must contact the observer service provider and must provide at least 72-hr notice in advance of the fishing trip for the provider to arrange for observer deployment for the specified trip.
(ii)An owner, operator, or vessel manager of a vessel that cannot procure a certified observer within 72 hr of the advance notification to the provider due to the unavailability of an observer, may request a waiver from NMFS from the requirement for observer coverage for that trip, but only if the owner, operator, or vessel manager has contacted all of the available observer service providers to secure observer coverage and no observer is available. NMFS shall issue such a waiver within 24 hr, if the conditions of this paragraph (g)(4)(ii) are met.
(5)Owners of scallop vessels shall be responsible for paying the cost of the observer for all scallop fishing trips on which an observer is carried onboard the vessel, regardless of whether the vessel lands or sells sea scallops on that trip, and regardless of the availability of set-aside for an increased possession limit or reduced DAS accrual rate. The owners, operators, and/or managers of vessels that carry an observer may be compensated with a reduced DAS accrual rate for open area trips or additional scallop catch per day in Access Areas in order to help defray the cost of the observer, under the program specified in §§ 648.53 and 648.60. Observer service providers are responsible for setting the daily rate for observer coverage on a vessel. NMFS shall determine any reduced DAS accrual rate and the amount of additional pounds of scallops per day fished in an access area for the applicable fishing year based on the economic conditions of the scallop fishery, as determined by best available information. Vessel owners and observer service providers shall be notified by Small Entity Compliance Guide of any DAS accrual rate and additional pounds of scallops determined by the Regional Administrator. The Regional Administrator may adjust the DAS accrual rate and additional pounds of scallops, if necessary, based on economic conditions of the scallop fishery. Vessel owners and observer providers shall be notified of any such adjustments through a letter.
(6)When the available DAS or TAC set-aside for observer coverage is exhausted, vessels shall still be required to carry an observer as specified in this section, and shall be responsible for paying for the cost of the observer, but shall not be authorized to harvest additional pounds or fish at a reduced DAS accrual rate.
(h)*Observer service provider approval and responsibilities* —(1) *General.* An entity seeking to provide observer services to the Atlantic sea scallop fishery must apply for and obtain approval from NMFS following submission of a complete application to The Observer Program Branch Chief, 25 Bernard St Jean Drive, East Falmouth, MA 02536. A list of approved observer service providers shall be distributed to scallop vessel owners and shall be posted on NMFS's web page, as specified in paragraph (g)(4) of this section.
(2)[Reserved]
(3)*Contents of application.* An application to become an approved observer service provider shall contain the following:
(i)Identification of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and staff. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.
(ii)The permanent mailing address, phone and fax numbers where the owner(s) can be contacted for official correspondence, and the current physical location, business mailing address, business telephone and fax numbers, and business e-mail address for each office.
(iii)A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, that they are free from a conflict of interest as described under paragraph (h)(6) of this section.
(iv)A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, describing any criminal convictions, Federal contracts they have had, and the performance rating they received on the contract, and previous decertification action while working as an observer or observer service provider.
(v)A description of any prior experience the applicant may have in placing individuals in remote field and/or marine work environments. This includes, but is not limited to, recruiting, hiring, deployment, and personnel administration.
(vi)A description of the applicant's ability to carry out the responsibilities and duties of a scallop fishery observer services provider as set out under paragraph (h)(5) of this section, and the arrangements to be used.
(vii)Evidence of holding adequate insurance to cover injury, liability, and accidental death for observers during their period of employment (including during training). Workers' Compensation and Maritime Employer's Liability insurance must be provided to cover the observer, vessel owner, and observer provider. The minimum coverage required is $5 million. Observer service providers shall provide copies of the insurance policies to observers to display to the vessel owner, operator, or vessel manager, when requested.
(viii)Proof that its observers, either contracted or employed by the service provider, are compensated with salaries that meet or exceed the Department of Labor
(DOL)guidelines for observers. Observers shall be compensated as Fair Labor Standards Act
(FLSA)non-exempt employees. Observer providers shall provide any other benefits and personnel services in accordance with the terms of each observer's contract or employment status.
(ix)The names of its fully equipped, NMFS/NEFOP certified observers (with resumes) on staff or a list of its training candidates (with resumes) and a request for a NMFS/NEFOP Sea Scallop Observer Training class. The NEFOP training has a minimum class size of eight individuals; which may be split among multiple vendors requesting training. Requests for training classes with fewer than eight individuals will not be processed until further requests make up the full training class size.
(x)An Emergency Action Plan
(EAP)describing its response to an “at sea” emergency with an observer, including, but not limited to, personal injury, death, harassment, or intimidation.
(4)*Application evaluation.*
(i)NMFS shall review and evaluate each application submitted under paragraphs (h)(2) and (h)(3) of this section. Issuance of approval as an observer provider shall be based on completeness of the application, and a determination by NMFS of the applicant's ability to perform the duties and responsibilities of a sea scallop fishery observer service provider as demonstrated in the application information. A decision to approve or deny an application shall be made by NMFS within 15 days of receipt of the application by NMFS.
(ii)If NMFS approves the application, the observer service provider's name will be added to the list of approved observer service providers found on NMFS's website specified in paragraph (g)(4) of this section and in any outreach information to the industry. Approved observer service providers shall be notified in writing and provided with any information pertinent to its participation in the sea scallop fishery observer program.
(iii)An application shall be denied if NMFS determines that the information provided in the application is not complete or NMFS concludes that the applicant does not have the ability to perform the duties and responsibilities of a sea scallop fishery observer service provider. NMFS shall notify the applicant in writing of any deficiencies in the application or information submitted in support of the application. An applicant who receives a denial of his or her application may present additional information, in writing, to rectify the deficiencies specified in the written denial, provided such information is submitted to NMFS within 30 days of the applicant's receipt of the denial notification from NMFS. In the absence of additional information, and after 30 days from an applicant's receipt of a denial, an observer provider is required to resubmit an application containing all of the information required under the application process specified in paragraph (h)(3) of this section to be re-considered for being added to the list as an approved observer service provider.
(5)*Responsibilities of observer service providers.*
(i)An observer service provider must provide observers certified by NMFS/NEFOP pursuant to paragraph
(i)of this section for deployment in the sea scallop fishery when contacted and contracted by the owner, operator, or vessel manager of a vessel fishing in the scallop fishery, unless the observer service provider does not have an available observer within 72 hr of receiving a request for an observer from a vessel owner, operator, and/or manager, or refuses to deploy an observer on a requesting vessel for any of the reasons specified at paragraph (h)(5)(viii) of this section. An approved observer service provider must maintain in its employ a minimum of eight NMFS/NEFOP certified observers in order to remain approved. Should a service provider's employed NMFS/NEFOP certified observers drop below eight, the provider must supply the appropriate number of candidates to the next available training class. Failure to do so shall be cause for suspension of the provider's approved status, until rectified.
(ii)An observer service provider must provide to each of its observers:
(A)All necessary transportation, including arrangements and logistics, of observers to the initial location of deployment, to all subsequent vessel assignments, and to any debriefing locations, if necessary;
(B)Lodging, per diem, and any other services necessary for observers assigned to a scallop vessel or to attend a NMFS/NEFOP Sea Scallop Observer Training class;
(C)The required observer equipment, in accordance with equipment requirements listed on NMFS's website specified in paragraph (g)(4) of this section under the Sea Scallop Program, prior to any deployment and/or prior to NMFS observer certification training; and
(D)Individually assigned communication equipment, in working order, such as a cell phone or pager, for all necessary communication. An observer service provider may alternatively compensate observers for the use of the observer's personal cell phone or pager for communications made in support of, or necessary for, the observer's duties.
(iii)*Observer deployment logistics.* Each approved observer service provider must assign an available certified observer to a vessel upon request. Each approved observer service provider must provide for access by industry 24 hr per day, 7 days per week, to enable an owner, operator, or manager of a vessel to secure observer coverage when requested. The telephone system must be monitored a minimum of four times daily to ensure rapid response to industry requests. Observer service providers approved under paragraph
(h)of this section are required to report observer deployments to NMFS daily for the purpose of determining whether the predetermined coverage levels are being achieved in the scallop fishery.
(iv)*Observer deployment limitations.* Unless alternative arrangements are approved by NMFS, an observer provider must not deploy any observer on the same vessel for two or more consecutive deployments, and not more than twice in any given month. A certified observer's first deployment and the resulting data shall be immediately edited, and approved, by NMFS prior to any further deployments of that observer.
(v)*Communications with observers.* An observer service provider must have an employee responsible for observer activities on call 24 hr a day to handle emergencies involving observers or problems concerning observer logistics, whenever observers are at sea, stationed shoreside, in transit, or in port awaiting vessel assignment.
(vi)*Observer training requirements.* The following information must be submitted to NMFS to request a certified observer training class at least 30 days prior to the beginning of the proposed training class: Date of requested training;a list of observer candidates, with a minimum of eight individuals; observer candidate resumes; and a statement signed by the candidate, under penalty of perjury, that discloses the candidate's criminal convictions, if any. All observer trainees must complete a basic cardiopulmonary resuscitation/first aid course prior to the beginning of a NMFS/NEFOP Sea Scallop Observer Training class. NMFS may reject a candidate for training if the candidate does not meet the minimum qualification requirements as outlined by NMFS National Minimum Eligibility Standards for observers as described in paragraph (i)(1) of this section.
(vii)*Reports* —(A) *Observer deployment reports.* The observer service provider must report to NMFS/NEFOP when, where, to whom, and to what fishery (open or closed area) an observer has been deployed, within 24 hr of the observer's departure. The observer service provider must ensure that the observer reports back to NMFS its Observer Contract (OBSCON) data, as described in the certified observer training, within 12 hr of landing. OBSCON data are to be submitted electronically or by other means as specified by NMFS. The observer service provider shall provide the raw (unedited) data collected by the observer to NMFS within 72 hr of the trip landing.
(B)*Safety refusals.* The observer service provider must report to NMFS any trip for which the deployment of an observer has been refused due to safety issues, e.g., failure to hold a valid USCG Commercial Fishing Vessel Safety Examination Decal, or failure to meet the safety requirements of the observer's pre-trip vessel safety checklist, within 24 hr of the refusal.
(C)*Biological samples.* The observer service provider must ensure that biological samples, including whole marine mammals, sea turtles, and sea birds, are stored/handled properly and transported to NMFS within 7 days of landing.
(D)*Observer debriefing.* The observer service provider must ensure that the observer remains available to NMFS, either in-person or via phone, at NMFS's discretion, including NMFS Office for Law Enforcement, for debriefing for at least 2 weeks following any observed trip. An observer that is at sea during the 2-week period must contact NMFS upon his or her return, if requested to do so by NMFS.
(E)*Observer availability report.* The observer service provider must report to NMFS any occurrence of inability to respond to an industry request for observer coverage due to the lack of available observers on staff by 5 pm, Eastern Standard Time, of any day on which the provider is unable to respond to an industry request for observer coverage.
(F)*Other reports.* The observer provider must report possible observer harassment, discrimination, concerns about vessel safety or marine casualty, or observer illness or injury; and any information, allegations, or reports regarding observer conflict of interest or breach of the standards of behavior, to NMFS/NEFOP within 24 hr of the event or within 24 hr of learning of the event.
(viii)*Refusal to deploy an observer.* —(A) An observer service provider may refuse to deploy an observer on a requesting scallop vessel if the observer service provider does not have an available observer within 72 hr of receiving a request for an observer from a vessel.
(B)An observer service provider may refuse to deploy an observer on a requesting scallop vessel if the observer service provider has determined that the requesting vessel is inadequate or unsafe pursuant to the reasons described at § 600.746.
(C)The observer service provider may refuse to deploy an observer on a scallop vessel that is otherwise eligible to carry an observer for any other reason, including failure to pay for previous observer deployments, provided the observer service provider has received prior written confirmation from NMFS authorizing such refusal.
(6)*Limitations on conflict of interest.* An observer service provider:
(i)Must not have a direct or indirect interest in a fishery managed under Federal regulations, including, but not limited to, a fishing vessel, fish dealer, fishery advocacy group, and/or fishery research;
(ii)Must assign observers without regard to any preference by representatives of vessels, other than when an observer will be deployed; and
(iii)Must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who conducts fishing or fishing related activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the official duties of observer providers.
(7)*Removal of observer service provider from the list of approved observer service providers.* An observer provider that fails to meet the requirements, conditions, and responsibilities specified in paragraphs (h)(5) and (h)(6) of this section shall be notified by NMFS, in writing, that it is subject to removal from the list of approved observer service providers. Such notification shall specify the reasons for the pending removal. An observer service provider that has received notification that it is subject to removal from the list of approved observer service providers may submit written information to rebut the reasons for removal from the list. Such rebuttal must be submitted within 30 days of notification received by the observer service provider that the observer service provider is subject to removal and must be accompanied by written evidence rebutting the basis for removal. NMFS shall review information rebutting the pending removal and shall notify the observer service provider within 15 days of receipt of the rebuttal whether or not the removal is warranted. If no response to a pending removal is received by NMFS within 30 days of the notification of removal, the observer service provider shall be automatically removed from the list of approved observer service providers. The decision to remove the observer service provider from the list, either after reviewing a rebuttal, or automatically if no timely rebuttal is submitted, shall be the final decision of the Department of Commerce. Removal from the list of approved observer service providers may not prevent such observer service provider from obtaining an approval in the future if a new application is submitted that demonstrates that the reasons for removal are remedied. Certified observers under contract with an observer service provider that has been removed from the list of approved service providers must complete their assigned duties for any scallop trips on which the observers are deployed at the time the observer service provider is removed from the list of approved observer service providers. An observer service provider removed from the list of approved observer service providers is responsible for providing NMFS with the information required in paragraph (h)(5)(vii) of this section following completion of the trip. NMFS may consider, but is not limited to, the following in determining if an observer service provider may remain on the list of approved observer service providers:
(i)Failure to meet the requirements, conditions, and responsibilities of observer service providers specified in paragraphs (h)(5) and (h)(6) of this section;
(ii)Evidence of conflict of interest as defined under paragraph (h)(6) of this section;
(iii)Evidence of criminal convictions related to:
(A)Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; or
(B)The commission of any other crimes of dishonesty, as defined by state law or Federal law, that would seriously and directly affect the fitness of an applicant in providing observer services under this section;
(iv)Unsatisfactory performance ratings on any Federal contracts held by the applicant; and
(v)Evidence of any history of decertification as either an observer or observer provider.
(i)*Observer certification.*
(1)To be certified, employees or sub-contractors operating as observers for observer service providers approved under paragraph
(h)of this section must meet NMFS National Minimum Eligibility Standards for observers. NMFS National Minimum Eligibility Standards are available at the National Observer Program website: *http://www.st.nmfs.gov/st4/nop/* .
(2)*Observer training.* In order to be deployed on any scallop vessel, a candidate observer must have passed a NMFS/NEFOP Sea Scallop Fisheries Observer Training course. If a candidate fails training, the candidate shall be notified in writing on or before the last day of training. The notification will indicate the reasons the candidate failed the training. A candidate that fails training shall not be able to enroll in a subsequent class. Observer training shall include an observer training trip, as part of the observer's training, aboard a scallop vessel with a trainer. A certified observer's first deployment and the resulting data shall be immediately edited, and approved, by NMFS prior to any further deployments of that observer.
(3)*Observer requirements.* All observers must:
(i)Have a valid NMFS/NEFOP fisheries observer certification pursuant to paragraph (i)(1) of this section;
(ii)Be physically and mentally capable of carrying out the responsibilities of an observer on board scallop vessels, pursuant to standards established by NMFS. Such standards are available from NMFS website specified in paragraph (g)(4) of this section and shall be provided to each approved observer service provider;
(iii)Have successfully completed all NMFS-required training and briefings for observers before deployment, pursuant to paragraph (i)(2) of this section; and
(iv)Hold a current Red Cross (or equivalent) cardiopulmonary resuscitation/first aid certification.
(4)*Probation and decertification* . NMFS has the authority to review observer certifications and issue observer certification probation and/or decertification as described in NMFS policy found on the website at: *http://www.nefsc.noaa.gov/femad/fsb/* .
(5)*Issuance of decertification.* Upon determination that decertification is warranted under paragraphs (i)(1) through
(3)of this section, NMFS shall issue a written decision to the observer containing the decertification and to the approved observer service provider via certified mail at their most current address provided to NMFS. The decision shall identify whether a certification is revoked and shall identify the specific reasons for the action taken. Decertification is effective immediately as of the date of issuance, unless the decertification official notes a compelling reason for maintaining certification for a specified period and under specified conditions. Decertification is the final decision of the Department of Commerce. 4. In § 648.51, paragraphs (c)(4) and (e)(3)(iii) are revised to read as follows: § 648.51 Gear and crew restrictions.
(c)* * *
(4)A certified at-sea observer is on board, as required by § 648.11(g).
(e)* * *
(3)* * *
(iii)A certified at-sea observer is on board, as required by § 648.11(g). 5. In § 648.55, paragraph (e)(31) is revised, and paragraph (e)(32) is added to read as follows: § 648.55 Framework adjustments to management measures.
(e)* * *
(31)Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations.
(32)Any other management measures currently included in the FMP. 6. In § 648.60, paragraph (a)(2) is revised to read as follows: § 648.60 Sea scallop area access program requirements.
(a)* * *
(2)Vessels participating in the Sea Scallop Access Area Program must comply with the trip declaration requirements specified in § 648.10(b)(4) and vessel notification requirements specified in § 648.11(g) for observer deployment. [FR Doc. E7-6489 Filed 4-5-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 648 [Docket No. 070322066-7066-01; I.D. 031307C] RIN 0648-AU51 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Fisheries; Regulatory Amendment to Reconcile State and Federal Commercial Fishing Vessel Permit Programs AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes regulations to modify the permitting and vessel replacement provisions for Federal limited access permit programs of the Northeastern United States, excluding American lobster. This action is intended to prevent fishing effort beyond what is accounted for in the FMPs for each fishery and to reinforce efforts undertaken by state fishery management agencies at targeting regulations specifically for vessels that participate wholly in state water fisheries. These measures are necessary to meet the conservation and management requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). DATES: Comments must be received by May 7, 2007. ADDRESSES: Comments may be submitted by any of the following methods: • E-mail: *NERO.Permit@NOAA.gov* . Include in the subject line the following: Comments on the Proposed Rule for Permit Program Reconciliation. • Federal e-Rulemaking Portal: *http:/www.regulations.gov.* • Mail: Paper, disk, or CD-ROM comments should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on the Proposed Rule for Permit Program Reconciliation.” • Fax:
(978)281-9135. Copies of this regulatory amendment, its Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and the Environmental Assessment
(EA)are available from Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930. A summary of the IRFA is provided in the Classification section of this proposed rule. FOR FURTHER INFORMATION CONTACT: Brian Hooker, Fishery Policy Analyst, phone:
(978)281-9220, fax:
(978)281-9135. SUPPLEMENTARY INFORMATION: Background State and Federal fishery management plans may differ in reporting requirements, participation restrictions, and overall strategies to control fishing mortality. These programs may be successful in achieving their objectives only when a vessel fishes in one program, either state or Federal, for an entire permit year because the management measures are typically based on analyses of fishing effort, and where that effort is expected to take place. Federal regulations are rarely the exclusive authority governing federally permitted commercial fishing vessels. Vessels that have both Federal and state permits are bound by the more restrictive of the regulations in effect. In contrast, vessels without a valid Federal permit can be permitted by a state to fish exclusively in state territorial waters, and such vessels do not have to comply with Federal fishing regulations. Current regulations require that federally permitted fishing vessels must abide by Federal fishing regulations, regardless of whether the vessel is fishing in state or Federal waters. However, vessels that delay getting their Federal permit may be authorized to participate exclusively in state water fisheries under state rules and regulations. Although splitting fishing effort between state and Federal waters may have repercussions across all federally managed fisheries, the impact of vessels splitting fishing effort between state and Federal programs is thought to be greatest in Federal fisheries utilizing a fishing effort control program referred to as a days-at-sea
(DAS)program, which is common in Federal fisheries management in New England. This type of program limits the amount of days that a federally permitted commercial fishing vessel can fish each year. Under current Federal regulations, a DAS vessel could increase its overall effort by fishing in state waters outside of the DAS program prior to renewal of its Federal DAS permit. However, state regulations could prohibit this practice, as in the case of the Massachusetts groundfish fishery. Although it is estimated that less than 10 percent of federally permitted vessels currently exploit this “loophole,” there is concern that this practice could expand, especially should further reductions in DAS be necessary. Thus, the purpose of this action is to remove an unintended consequence of having a Federal permit renewal system that effectively allows for a temporary relinquishment of a Federal limited access permit. This action would apply only to Federal limited access and moratorium commercial fishing vessel permit holders. The terms (limited access( and (moratorium( in regards to Federal permit programs are synonymous. A limited access permit is a permit that an individual has applied for and received based on qualification criteria set forth in the FMP. By applying for and receiving a limited access permit, a vessel owner has agreed to abide by a fishing program that, in turn, grants exclusive fishing privileges. Under current regulations, a Federal limited access permit must be renewed on an annual basis. If the permit is not issued within 1 year of the last day of the permit year for which it was valid, the permit is cancelled and rendered ineligible for renewal. In general, limited access permits were developed in order to control fishing effort in various fisheries that are, or were, being harvested at rates above the maximum sustainable yield for the fishery. These limited access permits often have privileges, such as higher trip limits, or exclusive access to a particular fishery. As a result, these permits are considered valuable. Open access permits, on the other hand, can be applied for with minimum qualification criteria, and received on an annual basis without any deadlines. A vessel owner may elect to not apply for an open access permit in one year, and still be eligible to receive the permit again 2 years later. Open access permits often do not carry the same exclusive fishing privileges associated with limited access permits and thus do not carry the same value. In order to maintain current ownership and vessel information, NMFS requires that vessel owners submit documentation on an annual basis prior to receiving the applicable limited access permit(s) for the permit year in question. This annual “renewal” or “reissuance” also serves as a way to ensure compliance with vessel reporting requirements for fishing trips taken during the year prior, since the new permit is not issued until these reports are received by NMFS. One aspect of a limited access permit is eligibility. Eligibility is the permit privilege a vessel owner maintains to renew annually his/her vessel(s limited access permit. Currently, eligibility to renew a limited access permit remains in place for up to 11 months after the start of the new permit year. Until such time that the vessel renews its limited access permit, its Federal fishing privileges are suspended. It was never the intention of the current regulations to allow a vessel to participate wholly in a state fishing program in which it would not otherwise be allowed to participate under the conditions of the Federal permit program for which it is eligible, while the vessel(s Federal permits are suspended. Often this exclusive state waters activity is not reported directly to NMFS, whereas, under the conditions of the Federal limited access permit, such reporting would be required. Proposed Measures This proposed action intends to remedy the situation described in the preceding paragraphs by making it a condition upon issuance of a limited access permit that the permit holder agrees that the vessel may not fish for or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any subsequent fishing year, or the permit either has been voluntarily relinquished or otherwise forfeited, revoked, or transferred from the vessel. This condition of the limited access permit would be in effect for the entire duration of the permit's renewal eligibility period. For example, if an issued permit expired on April 30, 2006, a vessel owner would have until April 30, 2007, to be reissued the permit. Thus, the vessel owner would be subject to the permit condition through April 30, 2007. By participating in a Federal limited access fishing program, a vessel owner is agreeing to participate wholly in that program and be subject to all of its accompanying regulations until such time that the vessel owner is no longer eligible to renew his/her vessel(s limited access permit. Thus, the only aspect of the permit that is suspended until the permit renewal application has been processed is its fishing privilege, whether or not such activity occurs in state or Federal waters. This measure would impact the Federal limited access commercial fishing vessel permits issued by the NMFS Northeast Regional Office that are listed in Table 1. The second measure proposed under this action would limit the number of vessel replacements allowed during a permit year. This measure would also be applicable to all limited access vessels listed in Table 1. These measures are discussed separately below. Table 1. List of Northeast Region Limited Access Permit Categories Affected By Proposed Rule FISHERY LIMITED ACCESS PERMIT CATEGORIES Atlantic Sea Scallop 2, 3, 4, 5, 6, 7, 8, 9 NE Multispecies A, C, D, E, F, HA Monkfish A, B, C, D, F, G, H Maine Ocean Quahog 7 Summer Flounder 1 Scup 1 Black Sea Bass 1 Squid, Mackerel, Butterfish 1, 5 Golden Tilefish A, B, C Atlantic Deep-Sea Red Crab B, C Limited Access Permit Fishing Prohibition After Expiration and Prior to Renewal Under this proposed action, a commercial fishing vessel that was issued, or is in possession of, a valid Federal limited access fishing permit at the end of the permit year immediately preceding the current permit year, would be prohibited from landing any fish managed under 50 CFR part 648 for which the vessel would be authorizedunder the conditions of the limited access permit(s), unless at least one of the following conditions is met: • The vessel owner has renewed the Federal limited access permit(s) for the current permit year; • The vessel owner has voluntarily permanently relinquished the vessel(s Federal limited access permit(s); or • The vessel has been replaced by another vessel and the permit eligibility has moved to the new vessel or was placed into Confirmation of Permit History (CPH). In other words, a vessel owner who is eligible to renew his/her vessel(s Federal limited access permit would be prohibited from fishing for and/or possessing any fish for which the vessel would be authorized under the respective limited access permit, from any waters, unless the limited access permit(s) has been renewed or removed from the vessel. All vessel reporting requirements for the limited access permits the vessel is eligible to renew would remain in effect unless the limited access permit(s) have been relinquished or transferred to another vessel or CPH. This would include completed fishing vessel trip reports
(VTRs)for the entire period that the vessel was issued or eligible to be issued a limited access permit. Under this action, a Federal limited access permitted vessel would be prohibited from obtaining a Federal open access fishing permit until such time that the limited access permits have been renewed, relinquished, or transferred. Federal open access and limited access permits may be renewed and applied for at the same time. This action would thus commit a limited access vessel to a specific fishery program (state or Federal) prior to engaging in any fishing activities. This measure would eliminate a loophole in the regulations currently exploited by a minority of vessel owners and/or operators and would potentially prevent more vessel owners and/or operators from taking advantage of this situation in the future. One-Time Vessel Replacement Per Permit Year This action would allow only one transfer of limited access permits per permit year, unless the vessel being replaced has been rendered inoperable and not repairable, due to unforeseen circumstances. The intent of this measure is to deter vessel owners from moving limited access permits off their primary vessel prior to the start of a permit year and then moving them back onto their primary vessel after the primary vessel has fished part of the permit year in a state waters fishery program. Under this scenario, a vessel owner would not be able to move the permits back onto the secondary vessel prior to the start of the following permit year. It was not foreseen that the flexibility in replacing a fishing vessel granted via the current regulation would be abused in order to circumvent fishing regulations. The current vessel replacement measures were implemented in order to rectify previous vessel replacement measures, which could potentially have compromised vessel safety by diminishing a vessel owner's flexibility to purchase and replace a vessel in a timely manner. The proposed regulations would maintain this flexibility while ensuring that the vessel replacement program is not utilized to avoid Federal regulations for a period of time. Classification At this time, NMFS has not determined that this proposed rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period. This proposed rule has been determined to be not significant for the purposes of Executive Order 12866. Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which describes the economic impacts that this proposed rule, if adopted, would have on small entities. A description of the reasons why this action is being considered, as well as the objectives of and legal basis for this proposed rule is found in the preamble to this proposed rule and is not repeated here. There are no Federal rules that may duplicate, overlap, or conflict with this proposed rule. The proposed action would modify the requirements for vessels issued or eligible to be issued certain Federal limited access commercial fishing vessel permits in the Northeast Region. Current regulations allow the development of such measures, provided they are consistent with the FMP objectives. The proposed alternative to modify the limited access permit regulations was compared to the No Action alternative and an alternative that would issue a (reserve permit( in the event a permit renewal application was not received by a set deadline. The No Action alternative would result in the continuation of the current management measures. Description and Estimate of the Number of Small Entities to which this Proposed Rule would Apply Approximately 3,700 vessels could be affected by this action. In all, these participants generate close to $ 1 billion annually from the sale of fish and shellfish. The Small Business Administration
(SBA)size standard for small commercial fishing entities is $ 4.0 million in gross receipts and would apply to all limited access permit holders affected by this action. Therefore, this proposed rule would not have a differential impact between small and large entities. Data compiled by NMFS from the 2004 fishing year
(FY)indicate that 64 vessels delayed their permit renewal and made landings during the time the Federal permit was invalid. In the same year eight vessels were replaced that reported landings later in the same fishing year. Thus, this rule would potentially impact 72 vessels out of the over 3,700 limited access vessels in the NE Region. An average of 94 percent of vessel owners here renewed their permits by May 1 over the last few years. With this level of compliance, only about 370 entities, including the aforementioned vessels that reported landings during this time period, would likely be affected by the permit renewal portion of this action. Federal permit data compiled by the NMFS NE Regional Office indicate that 64 vessels delayed the renewal of their Federal limited access permits in 2004 and also had landings both with and without their Federal permit. In the NE multispecies fishery, where the practice is most acute, between 2002 and 2005 only nine vessels repeatedly delayed the renewal of their Federal limited access NE multispecies permit. In addition to vessels delaying their permit renewal, some vessels are replaced by another fishing vessel during the fishing year. The former vessel may then continue to fish outside of Federal regulations in state waters. Across all limited access fisheries, about eight vessels per year land fish as a result of replacing a vessel and then continuing to fish with the old vessel in 2004. Economic Impacts of this Proposed Action Analyses of data showed that only a small number of vessels currently exploit the loophole the proposed action would fix. This action would affect all limited access fisheries in the NE Region. However, a fishery of particular concern due to significant state water and Federal water components, is the fishery that catches Gulf of Maine and Georges Bank cod stocks in the NE multispecies fishery. Thus, for the purposes of this economic analysis, the impact to the vessel owners active in the limited access multispecies fishery is considered the upper bound of economic impacts to all the affected fisheries. In 2004, an average of 7,855 lb (3,563 kg) (86,409 lb (39,194 kg) total) of cod was landed by 11 fishing vessels (approximately 4,000 NE multispecies limited access permits were issued in FY 2004) fishing exclusively under state fishing regulations by vessels that were eligible for a limited access permit in the previous permit year. At an ex-vessel price of $2.50 per pound for cod, this action could conceivably reduce annual revenues of a given vessel owner by $36,000. However, there is no indication from this analysis that these same fish would not have been caught by state-permitted vessels that are not eligible for a limited access permit, nor that this same quantity of fish would not have been caught by a federally permitted limited access commercial fishing vessel. The total ex-vessel value of cod landed in 2004 was $21,690,850. Thus, this action could cause a slightly negative economic impact of less than 1 percent to the commercial groundfish industry. In 2004, other DAS fisheries such as monkfish and sea scallop had average landings per limited access eligible vessel of 5,852 lb (2,654 kg) whole weight (N= 21), and 3,270 lb (1,483 kg) (N=9) landed weight, respectively. For a monkfish vessel, this would result in a decrease in revenue of approximately $8,193 (using an average monkfish ex-vessel price of $1.40 per lb whole weight). This would result in a decrease in revenue for a given scallop vessel of approximately $23,707 (using a scallop ex-vessel price of $7.25 per lb landed weight). The total ex-vessel value of the monkfish and scallop fisheries were $33,331,944 and $320,696,436, respectively, in 2004. All other limited access fisheries with an inshore (state waters) stock component are managed through a hard total allowable catch (TAC). These TAC programs are managed on either a coast-wide or state-by-state basis. Federal TAC programs, for the most part, are equivalent to the state programs for each fishery. When this equivalency exists there is no advantage for a vessel owner eligible for a Federal limited access permit to delay his/her Federal permit renewal in order to fish exclusively under a state permit. However, in the absence of Federal and state equivalency in a TAC program (e.g., the closure of federally controlled waters, lower Federal possession limits, etc.) there could be an advantage to splitting fishing effort between state and Federal fisheries in the same fishing year. Economic Impacts of Alternatives to the Proposed Action In addition to the proposed alternative described in the preamble, a second, non-preferred alternative, and the status quo alternative were also analyzed. The status quo alternative would leave the current regulations in place. The second, non-preferred alternative would also modify the current Federal commercial fishing vessel limited access permit renewal process; however unlike the preferred alternative, this alternative places a deadline on the limited access permit renewal for the permit year in question. Under this alternative, if the vessel owner misses the application deadline the vessel would not lose its eligibility to apply for the Federal limited access permit for the following permit year. If the vessel owner fails to submit a complete renewal application 30 days prior to the start of the permit year for which the permit is required, the vessel owner has, by default, elected to either fish exclusively in state waters, or not to fish at all. A complete application received after 30 days prior to the start of the permit year for which the permit is required would reserve that vessel owner's eligibility to apply for Federal permits the following fishing year through the issuance of a Federal “Reserve Permit.” If the commercial fishing vessel does not apply for and receive either a limited access permit or a reserve permit during a permit year it would become ineligible to receive the limited access permit at any future time. The one-time per year vessel replacement provision is the same as outlined in the Agency's preferred alternative. The second non-preferred alternative, would have the same reduction in ex-vessel value that was outlined in the section of this Classification section detailing the preferred alternative. However, this alternative would have a greater economic impact in that vessel owners would be prohibited from renewing their Federal limited access permit at any time during the permit year, if they failed to renew their permit prior to the start of the permit year. The 2004 data analyzed indicated that approximately 2 percent (65 entities) of limited access permit holders delayed the renewal of their permits. It is not feasible to identify the total landings and ex-vessel value of these landings to determine if this 2 percent contribute a greater or lesser amount to annual fishery landings than an average vessel. The economic impacts of the non-preferred alternative are greater than those under the status quo and preferred alternatives. It is estimated that the status quo alternative would realize a small short-term positive economic impact to the fishing industry due to a slight increase in landings. It is highly probable that this increase, especially if more vessels take advantage of fishing in both state and Federal fishing programs in the same permit year, would be offset in the future by a decrease in landings due to more restrictive fishing regulations required after target fishing mortality rates are not realized. Public Reporting Burden This proposed rule contains collection of information requirements previously approved by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act
(PRA)under OMB control numbers 0648-0202 and 0648-0212. The current expiration dates for the reporting requirements under these collections are October 31, 2009, and September 30, 2008, respectively. The public(s reporting burden for the collection-of-information requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information requirements. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: April 2, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.2, the definition for “Permit year” is added, in alphabetical order, to read as follows: § 648.2 Definitions. *Permit year* means:
(1)For the Atlantic sea scallop and Atlantic deep-sea red crab fisheries, from March 1 through the last day of February of the following year;
(2)For all other fisheries in this part, from May 1 through April 30 of the following year. 3. In § 648.4, paragraphs (a)(1)(i)(B), (a)(1)(i)(E), introductory text (a)(1)(i)(K), and
(b)are revised to read as follows: § 648.4 Vessel permits. (a)* * * (1)* * * (i)* * *
(B)*Application/renewal restrictions* . All limited access or moratorium permits established under this section must be issued on an annual basis by the last day of the permit year for which the permit is required, unless a confirmation of permit history
(CPH)has been issued as specified in paragraph (a)(1)(i)(J) of this section. Application for such permits must be received no later than 30 days before the last day of the permit year. Failure to renew a limited access or moratorium permit in any permit year bars the renewal of the permit in subsequent years. If a vessel is issued more than one limited access or moratorium permit under this section, these permits will be regarded as a permit suite and must be renewed together in accordance with this paragraph (a)(1)(i)(B). Open access permits may not be issued to a vessel eligible to renew a limited access or moratorium permit until such time that the vessel(s limited access or moratorium permit(s) are renewed, or the limited access or moratorium permit has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section, or transferred from the vessel via a replacement vessel pursuant to paragraph (a)(1)(i)(E) of this section, or confirmation of permit history pursuant to paragraph (a)(1)(i)(J) of this section.
(E)*Replacement vessels* . With the exception of vessels that have obtained a limited access Handgear A permit described in § 648.82(b)(6), an owner of a vessel that has been issued any limited access or moratorium permit under this section is limited to one vessel replacement per permit year, using the earliest permit year start date of the limited access or moratorium permits for which the vessel is eligible, unless the vessel has been rendered inoperable and non-repairable. To be eligible for a limited access or moratorium permit under this section, the replacement vessel must meet the following criteria and any other applicable criteria under paragraph (a)(1)(i)(F) of this section:
(K)*Abandonment or voluntary relinquishment of a limited access or moratorium permit* . If a vessel's limited access or moratorium permit for a particular fishery is voluntarily relinquished to the Regional Administrator or abandoned through failure to renew or otherwise, no limited access or moratorium permit for that fishery may be reissued or renewed based on that vessel(s limited access or moratorium permit history or to any other vessel relying on that vessel(s limited access or moratorium permit history.
(b)*Permit conditions* . (1)(i) Any person who applies for and is issued or renews a fishing permit under this section agrees, as a condition of the permit, that the vessel and the vessel's fishing activity, catch, and pertinent gear (without regard to whether such fishing occurs in the EEZ or landward of the EEZ; and without regard to where such fish or gear are possessed, taken, or landed); are subject to all requirements of this part, unless exempted from such requirements under this part. All such fishing activities, catch, and gear will remain subject to all applicable state requirements. Except as otherwise provided in this part, if a requirement of this part and a management measure required by a state or local law differ, any vessel owner permitted to fish in the EEZ for any species managed under this part, except tilefish, must comply with the more restrictive requirement. Except as otherwise provided in this part, if a requirement of this part and a management measure required by a state or local law differ, any vessel owner permitted to fish in the tilefish management unit for tilefish managed under this part must comply with the more restrictive requirement. Owners and operators of vessels fishing under the terms of a summer flounder moratorium, scup moratorium, or black sea bass moratorium; or a spiny dogfish or bluefish commercial vessel permit, must also agree not to land summer flounder, scup, black sea bass, spiny dogfish, or bluefish, respectively, in any state after NMFS has published a notification in the **Federal Register** stating that the commercial quota for that state or period has been harvested and that no commercial quota is available for the respective species. A state not receiving an allocation of summer flounder, scup, black sea bass, or bluefish, either directly or through a coast-wide allocation, is deemed to have no commercial quota available. Owners and operators of vessels fishing under the terms of the tilefish limited access permit must agree not to land tilefish after NMFS has published a notification in the **Federal Register** stating that the quota for the tilefish limited access category under which a vessel is fishing has been harvested. Owners or operators fishing for surfclams and ocean quahogs within waters under the jurisdiction of any state that requires cage tags are not subject to any conflicting Federal minimum size or tagging requirements. If a surfclam and ocean quahog requirement of this part differs from a surfclam and ocean quahog management measure required by a state that does not require cage tagging, any vessel owners or operators permitted to fish in the EEZ for surfclams and ocean quahogs must comply with the more restrictive requirement while fishing in state waters. However, surrender of a surfclam and ocean quahog vessel permit by the owner by certified mail addressed to the Regional Administrator allows an individual to comply with the less restrictive state minimum size requirement, as long as fishing is conducted exclusively within state waters.
(ii)Any person who applies for or has been issued a limited access or moratorium permit on or after [EFFECTIVE DATE OF FINAL RULE] agrees, as a condition of the permit, that the vessel may not fish for, catch, possess, or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any subsequent fishing year, or the permit either has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section or otherwise forfeited, revoked, or transferred from the vessel.
(2)A vessel that is issued or renewed a limited access or moratorium permit on or after [EFFECTIVE DATE OF FINAL RULE] for any fishery governed under this section is prohibited from fishing for, catching, possessing, and/or landing any fish for which the vessel would be authorized under the respective limited access or moratorium permit in or from state and/or Federal waters in any subsequent fishing year, unless and until the limited access or moratorium permit has been issued or renewed pursuant to paragraph (a)(1)(i)(B) of this section and the valid permit is on board the vessel. This prohibition does not apply to a vessel for which the limited access or moratorium permit has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section or otherwise forfeited, revoked, or transferred from the vessel. 4. In § 648.14, paragraph (a)(31)(ii) is revised, and paragraphs (a)(178) and (a)(179) are added to read as follows: § 648.14 Prohibitions.
(a)* * *
(31)* * *
(ii)The NE multispecies were harvested by a vessel not issued a NE multispecies permit, nor eligible to renew or be reissued a limited access NE multispecies permit as specified in § 648.4 (b)(2), that fishes for NE multispecies exclusively in state waters;
(178)If eligible for re-issuance or renewal of a limited access or moratorium permit:
(i)Fish for, take, catch, harvest or land any species of fish regulated by this part for which the vessel is eligible to possess under a limited access or moratorium permit until the vessel has been issued the applicable limited access or moratorium permit by NMFS.
(ii)[Reserved]
(179)Attempt to replace a limited access or moratorium fishing vessel, as specified at § 648.4 (a)(1)(i)(E), more than one time during a permit year, unless the vessel has been rendered inoperable and non-repairable. [FR Doc. E7-6490 Filed 4-5-07; 8:45 am] BILLING CODE 3510-22-S 72 66 Friday, April 6, 2007 Notices DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Trade Adjustment Assistance for Farmers AGENCY: Foreign Agricultural Service, USDA. ACTION: Notice. On March 22, 2007, the Administrator, Foreign Agricultural Service (FAS), denied a petition for trade adjustment assistance
(TAA)that was filed on February 16, 2007, by the Burley Tobacco Growers Cooperative Association and the Burley Stabilization Corporation, representing burley tobacco producers in Kentucky, Tennessee, Virginia, North Carolina, West Virginia, Indiana, Ohio, and Missouri. SUPPLEMENTARY INFORMATION: Upon investigation, the Administrator determined the predominant reason for the decline in the burley tobacco price was the termination of the Tobacco Buyout Program in 2005, and that imports did not contribute importantly to the decline in price. Therefore, the burley tobacco petition did not meet the statutory requirement that imports contributed importantly to a decline in producer price. FOR FURTHER INFORMATION, CONTACT: Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA,
(202)720-2916, e-mail: *trade.adjustment@fas.usda.gov* . Dated: March 23, 2007. W. Kirk Miller, Administrator, Foreign Agricultural Service. [FR Doc. E7-6468 Filed 4-5-07; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Trade Adjustment Assistance for Farmers AGENCY: Foreign Agricultural Service, USDA. ACTION: Notice. On March 22, 2007, the Administrator, Foreign Agricultural Service (FAS), denied a petition for trade adjustment assistance
(TAA)for avocados that was filed on February 17, 2007, by the California Avocado Commission. SUPPLEMENTARY INFORMATION: Upon investigation, the Administrator determined that imports from Mexico for the November 1, 2005, through October 31, 2006, marketing year declined by 2 percent from the same period in 2005/2006. Since imports declined during the marketing year, the petition did not meet the increasing imports requirement, a condition required for certifying a petition for TAA. FOR FURTHER INFORMATION, CONTACT: Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA,
(202)720-2916, e-mail: *trade.adjustment@fas.usda.gov* . Dated: March 23, 2007. W. Kirk Miller, Administrator, Foreign Agricultural Service. [FR Doc. E7-6469 Filed 4-5-07; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Trade Adjustment Assistance for Farmers AGENCY: Foreign Agricultural Service, USDA. ACTION: Notice. On March 22, 2007, the Administrator, Foreign Agricultural Service (FAS), denied a petition for trade adjustment assistance
(TAA)for Michigan natural honey, white or lighter, that was filed on February 16, 2007, by a group of apiarists. SUPPLEMENTARY INFORMATION: Upon investigation, the Administrator determined that prices did not decline by at least 20 percent for the most recent marketing year compared to previous 5-year average. During the 2005 marketing year, prices were 89.6 percent of the 5-year base average. Since producer prices did not decline by at least 20 percent during the most recent marketing year, the petition did not meet the price decline requirement, a condition required for certifying a petition for TAA. FOR FURTHER INFORMATION, CONTACT: Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA,
(202)720-2916, e-mail: *trade.adjustment@fas.usda.gov* . Dated: March 23, 2007. W. Kirk Miller, Administrator, Foreign Agricultural Service. [FR Doc. E7-6463 Filed 4-5-07; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Trade Adjustment Assistance for Farmers AGENCY: Foreign Agricultural Service, USDA. ACTION: Notice. On March 22, 2007, the Administrator, Foreign Agricultural Service (FAS), denied a petition for trade adjustment assistance
(TAA)that was filed on February 16, 2007, by the National Grape Cooperative Association, representing New York, Pennsylvania, and Ohio Concord juice grape producers. SUPPLEMENTARY INFORMATION: Upon investigation, the Administrator determined that imports of grape juice and must, unfermented, not concentrated, from Canada did not contribute importantly to a decline in producer price. Therefore, the Concord juice grape petition did not meet the statutory requirement that imports contributed importantly to a decline in producer price. FOR FURTHER INFORMATION, CONTACT: Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA,
(202)720-2916, e-mail: trade.adjustment@fas.usda.gov. Dated: March 23, 2007. W. Kirk Miller, Administrator, Foreign Agricultural Service. [FR Doc. E7-6471 Filed 4-5-07; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Forest Service Newspapers Used for Publication of Legal Notices in the Southwestern Region, Which Includes Arizona, New Mexico, and Parts of Oklahoma and Texas AGENCY: Forest Service, USDA. ACTION: Notice. SUMMARY: This notice lists the newspapers that will be used by all Ranger Districts, Grasslands, Forests, and the Regional Office of the Southwestern Region to give legal notice for the availability for comments on projects under 36 CFR parts 215 or 217, and for opportunities to object to proposed authorized hazardous fuel reduction projects under 36 CFR 218.4. This notice also lists newspapers of record for the notice of initiation, notice of comment period, notice of objection period, notice of approval, and notice of adjustment of an ongoing planning process for plan amendments and revisions under 36 CFR 219.9 and 219.14 (2005 planning rule). Newspaper publication is in addition to mailings and direct notice made to those who have participated in the planning of projects or plan revisions and amendments by submitting comments and/or requesting notice. DATES: Use of these newspapers for the purpose of publishing legal notice for a plan amendment decision that is subject to appeal under 36 CFR part 217, for a comment and project decision that may be subject to appeal under 36 CFR part 215, for opportunity to object under 36 CFR 218 and for planning notices on a plan revision or plan amendment under 36 CFR part 219 shall begin on the date of this publication and continue until further notice. ADDRESSES: Southwestern Region, *ATTN:* Regional Appeals Assistant, 333 Broadway SE., Albuquerque, NM 87102-3498 FOR FURTHER INFORMATION CONTACT: Connie Smith, 505-842-3223. SUPPLEMENTARY INFORMATION: Where more than one newspaper is listed for any unit, the first newspaper listed is the primary newspaper of record of which publication date shall be used for calculating the time period to file comment, appeal or an objection. Southwestern Regional Officer Regional Forester Notices of Availability for Comment and Decisions and Objections affecting New Mexico Forests:—“Albuquerque Journal”, Albuquerque, New Mexico, for National Forest System Lands in the State of New Mexico and for any projects of Region-wide impact. Regional Forester Notices of Availability for Comment and Decisions and Objections affecting Arizona Forests:—“The Arizona Republic”, Phoenix, Arizona, for National Forest System lands in the State of Arizona and for any projects of Region-wide impact. Regional Forester Notices of Availability for Comment and Decisions and Objections affecting National Grasslands in New Mexico, Oklahoma, and Texas are listed by Grassland and location as follows: Kiowa National Grassland notices published in:—“Union County Leader”, Clayton New Mexico. Rita Blanca National Grassland in Cimarron County, Oklahoma notices published in:—“Boise City News”, Boise City, Oklahoma. Rita Blanca National Grassland in Dallam County, Texas notices published in:—“The Dalhart Texan”, Dalhart, Texas. Black Kettle National Grassland in Roger Mills County, Oklahoma notices published in:—“Cheyenne Star”, Cheyenne, Oklahoma. Black Kettle National Grassland in Hemphill County, Texas notices published in:—“The Canadian Record”, Canadian, Texas. McClellan Creek National Grassland in Gray County, Texas notices published in:—“The Pampa News”, Pampa, Texas. Arizona National Forests Apache-Sitgreaves National Forests Notices for Availability for Comments, Decisions and Objections by Forest Supervisor, Alpine Ranger District, Black Mesa Ranger District, Lakeside Ranger District, and Springerville Ranger District are published in:—“The White Mountain Independent”, Show Low and Navajo County, Arizona. Clifton Ranger District Notices are published in:—“Copper Era”, Clifton, Arizona. Coconino National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor, Mogollon Rim Ranger District, Mormon Lake Ranger District, and Peaks Ranger District are published in:—“Arizona Daily Sun”, Flagstaff, Arizona. Red Rock Ranger District Notices are published in:—“Red Rock News”, Sedona, Arizona. Coronado National Forest Notices for Availability for comments, Decisions and Objections by Forest Supervisor and Santa Catalina Ranger District are published in:—“The Arizona Daily Star”, Tucson, Arizona. Douglas Ranger District Notices are published in:—“Daily Dispatch”, Douglas, Arizona. Nogales Ranger District Notices are published in:—“Nogales International”, Nogales, Arizona. Sierra Vista Ranger District Notices are published in:—“Sierra Vista Herald”, Sierra Vista, Arizona. Safford Ranger District Notices are published in:—“Eastern Arizona Courier”, Safford, Arizona. Kaibab National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor, North Kaibab Ranger District, Tusayan Ranger District, and William Ranger District Notices are published in:—“Arizona Daily Sun”, Flagstaff, Arizona. Prescott National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor, Bradshaw Ranger District, Chino Valley Ranger District and Verde Ranger District are published in:—“Prescott Courier”, Presscott, Arizona. Tonto National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor are published in:—“East Valley Tribune” and “Scottsdale Tribune”, Mesa, Arizona. Cave Creek Ranger District Notices are published in:—“Scottsdale Tribune”, in Mesa, Arizona. Globe Ranger District Notices are published in:—“Arizona Silver Belt”, Globe, Arizona. Mesa Ranger District Notices are published in:—“East Valley Tribune”, Mesa Arizona. Payson Ranger District, Pleasant Valley Ranger District and Tonto Basin Ranger District Notices are published in:—“Payson Roundup”, Payson, Arizona. New Mexico National Forests Carson National Forest Notices for Availability for comments, Decisions and Objections by Forest Supervisor, Camino Real Ranger District, Tres Piedras Ranger District and Questa Ranger District are published in: —“The Taos News”, Taos, New Mexico. Canjilon Ranger District and El Rito Ranger District Notices are published in: —“Rio Grande Sun”, Espanola, New Mexico. Jicarilla Ranger District Notices are published in: —“Farmington Daily Times”, Farmington, New Mexico. Cibola National Forest and National Grasslands Notices for Availability for Comments, Decisions and Objections by Forest Supervisor affecting lands in New Mexico, except the National Grasslands are published in: —“Albuquerque Journal”, Albuquerque, New Mexico. Forest Supervisor Notices affecting National Grasslands in New Mexico, Oklahoma and Texas are published by grassland and location as follows: Kiowa National Grassland in Colfax, Harding, Mora and Union Counties, New Mexico published in: —“Union County Leader”, Clayton, New Mexico. Rita Blanca National Grassland in Cimarron County, Oklahoma published in: —“Boise City News”, Boise City, Oklahoma. Rita Blanca National Grassland in Dallam County, Texas published in: —“The Dalhart Texan”, Dalhart, Texas. Black Kettle National Grassland, in Roger Mills County, Oklahoma published in: —“Cheyenne Star”, Cheyenne, Oklahoma. Black Kettle National Grassland, in Hemphill County, Texas published in: —“The Canadian Record”, Canadian Texas. McClellan Creek National Grassland published in: —“The Pampa News”, Pampa, Texas. Mt. Taylor Ranger District Notices are published in: —“Cibola County Beacon”, Grants, New Mexico. Magdalena Ranger District Notices are published in: —“Defensor-Chieftain”, Socorro, New Mexico. Mountainair Ranger District Notices are published in: —“Mountainview Telegraph”, Tijeras, New Mexico. Sandia Ranger District Notices are published in: —“Albuquerque Journal”, Albuquerque, New Mexico. Kiowa National Grassland Notices are published in: —“Union County Leader”, Clayton, New Mexico. Rita Blanca National Grassland Notices in Cimarron County, Oklahoma are published in: —“Boise City News”, Boise City, Oklahoma while Rita Blanca National Grassland Notices in Dallam County, Texas are published in: —“Dalhart Texan”, Dalhart, Texas. Black Kettle National Grassland Notices in Roger Mills County, Oklahoma are published in: —“Cheyenne Star”, Cheyenne, Oklahoma, while Black Kettle National Grassland Notices in Hemphill County, Texas are published in: —“The Canadian Record”, Canadian, Texas. McClellan Creek National Grassland Notices are published in: —“The Pampa News”, Pampa, Texas. Gila National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor, Quemado Ranger District, Reserve Ranger District, Glenwood Ranger District, Silver City Ranger District and Wilderness Ranger District are published in: —“Silver City Daily Press”, Silver City, New Mexico. Black Range Ranger District Notices are published in: —“The Herald”, Truth or Consequences, New Mexico. Lincoln National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor and the Sacramento Ranger District are published in: —“Alamogordo Daily News”, Alamogordo, New Mexico. Guadalupe Ranger District Notices are published in: —“Carlsbad Current Argus”, Carlsbad, New Mexico. Smokey Bear Ranger District Notices are published in: —“Ruidoso News”, Ruidoso, New Mexico. Santa Fe National Forest Notices for Availability for Comments, Decisions and Objections by Forest Supervisor, Coyote Ranger District, Cuba Ranger District, Espanola Ranger District, Jemez Ranger District and Pecos-Las Vegas Ranger District are published in: —“Albuquerque Journal”, Albuquerque, New Mexico. Dated: March 22, 2007. Abel Camarena, Deputy Regional Forester, Southwestern Region. [FR Doc. 07-1703 Filed 4-5-07; 8:45 am]
Connectionstraces to 64
Traces to 64 documents
U.S. Code
69 references not yet in our index
  • 49 CFR 1002
  • 49 CFR 1002.3
  • 49 CFR 1002.3(a)
  • 49 CFR 1002.3(d)
  • 49 USC 721(a)
  • 49 CFR 1150.31-1150
  • 49 CFR 1150.36
  • 49 CFR 1150.41-1150
  • 49 CFR 1150.21-1150
  • Pub. L. 97-35
  • 49 CFR 1152.50
  • 49 CFR 1180.2(d)
  • 49 CFR 1180.2(a)
  • 49 CFR 1180.2(d)(5)
  • 45 USC 562
  • 49 CFR 1146
  • 49 CFR 1147
  • 49 CFR 1177.3(c)
  • 49 CFR 1013
  • 49 CFR 1180.4(b)(4)(iv)
  • 49 CFR 1013.3(a)
  • 49 CFR 1108
  • 7 CFR 959
  • 7 CFR 900
  • 7 USC 601-674
  • 14 CFR 39
  • 30 CFR 291
  • 43 USC 1331-1356
  • 345 F.3d 910
  • 18 CFR 330
  • 30 CFR 290
  • 30 CFR 250
  • 15 USC 717-717z
  • 30 CFR 206
  • 43 USC 1349-1350
  • 18 CFR 385
  • 31 USC 483a
  • 415 U.S. 345
  • 848 F.2d 1297
  • 49 CFR 1002.2(c)
+ 29 more
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Rules and Regulations
Final Rule
U.S.C.§ 552
U.S.C.§ 9701
U.S.C.§ 14303
U.S.C.§ 13541
U.S.C.§ 13703
U.S.C.§ 10901
U.S.C.§ 10502
U.S.C.§ 10902
U.S.C.§ 10907
F. App'x345 F.3d 910
SCOTUS415 U.S. 345
F. App'x848 F.2d 1297
Cites 133 · showing 12Cited by 0 across 0 sources
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