Proposed Rules. Interim rule with request for comments

37,941 words·~172 min read·/register/2007/04/24/07-2016

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

BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Parts 12 and 15 [USCG-2007-27761] RIN 1625-AB16 Large Passenger Vessel Crew Requirements AGENCY: Coast Guard, DHS. ACTION: Interim rule with request for comments. SUMMARY: The Coast Guard is amending its regulations on merchant mariner documentation to implement section 3509 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Warner Act), which allows for the issuance of merchant mariner documents

(MMDs)to certain non-resident aliens for service in the stewards departments of U.S.-flag large passenger vessels endorsed for coastwise trade. Coast Guard regulations currently prohibit the Coast Guard from issuing MMDs, which are required for service on large passenger vessels, to non-immigrant aliens. This interim rule amends Coast Guard regulations to allow the Coast Guard to issue MMDs to qualified non-resident aliens who are authorized to be employed in the United States. This rule also sets the requirements that these aliens must meet in order to qualify for MMDs, and the requirements for the large passenger vessels that may choose to hire these aliens. This interim rule only applies to large passenger vessels, as defined under the Warner Act. DATES: This interim rule is effective April 24, 2007. Comments and related material must reach the Docket Management Facility on or before July 23, 2007. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2007-27761 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: If you have questions on this rule, call LCDR Derek D'Orazio, Coast Guard, telephone 202-372-1405. 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: Table of Contents The SUPPLEMENTARY INFORMATION section of this interim final rule sets forth the basis, purpose and particulars of this rulemaking action and is organized as follows: I. Public Participation and Request for Comments II. Background and Purpose III. Discussion of the Interim Rule IV. Regulatory Requirements A. Administrative Procedure Act B. Regulatory Evaluation i. Affected Population ii. Industry Profile iii. Direct Impacts iv. Indirect Impacts C. Small Entities D. Assistance for Small Entities E. Collection of Information F. Federalism G. Unfunded Mandates Reform Act H. Taking of Private Property I. Civil Justice Reform Act J. Protection of Children K. Indian Tribal Governments L. Energy Effects M. Technical Standards N. Environment List of Subjects I. 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-2007-27761), 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 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* . *Public Meeting:* We do not currently plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility 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** . II. Background and Purpose Title 46 U.S.C. 8103 generally requires that unlicensed seamen on documented vessels must be of the following status:

(a)Citizens of the United States;

(b)lawful permanent residents; or

(c)foreign nationals enrolled in the United States Merchant Marine Academy. No more than 25 percent of such unlicensed seamen may be lawful permanent residents. On October 17, 2006, Congress enacted the John Warner National Defense Authorization Act for Fiscal Year 2007 (Warner Act), Public Law 109-364, sec. 3509, 120 Stat. 2518. Section 3509 of the Warner Act (46 U.S.C. 8103(k)) amends 46 U.S.C. 8103 to permit large passenger vessels to also employ non-resident aliens who are authorized to work in the United States. The statute maintains a cap so that no more than twenty-five percent of the unlicensed seamen on any large passenger vessel are aliens, whether admitted to the United States as lawful permanent residents or otherwise allowed to be employed in the United States as nonresident aliens. “Large passenger vessel” is defined under the Warner Act to mean “a vessel of more than 70,000 gross tons, as measured under section 14302 of this title, with capacity for at least 2,000 passengers and documented with a coastwise endorsement under chapter 121 of this title.” The Warner Act also contains the following qualifications and restrictions on non-resident aliens serving as unlicensed seamen on large passenger vessels: 1. Non-resident aliens may not perform watchstanding, engine room duty watch, or vessel navigation functions; 2. Non-resident aliens must be aliens employable in the United States under the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1101 *et seq.* ) (INA), including an alien crewman described in § 101(a)(15)(D)(i) of the INA (8 U.S.C. 1101(a)(15)(D)(i)); 3. Non-resident aliens must have been employed, for a period of at least one year, on a passenger vessel, including a foreign flag passenger vessel, under the same common ownership or control as the U.S.-flag vessel they will be working on, as certified by the owner or managing operator of such vessel; 4. Non-resident aliens must have no record of material disciplinary actions during such employment as verified in writing by the owner or managing operator of such vessel; 5. Non-resident aliens must have successfully completed a United States Government security check of the relevant domestic and international databases, as appropriate, or any other national security-related information or database (which is required for a MMD or Transportation Worker Identification Credential (TWIC)); 6. Non-resident aliens must have successfully undergone an employer background check for which the owner or managing operator provides a signed report that describes the background checks undertaken. The background check must consist of a search of all information that is reasonably and legally available to the owner or managing operator in the seaman's country of citizenship and any other country in which the seaman receives employment referrals, or resides. The report must be kept on the vessel and available for inspection, and the information derived from the background check must be made available upon request; 7. Non-resident aliens may not be citizens or temporary or permanent residents of a country designated by the United States as a sponsor of terrorism or any other country that the Secretary of Homeland Security, in consultation with the Secretary of State and the heads of other appropriate United States agencies, determines to be a security threat to the United States; and 8. Non-resident aliens may only serve for an aggregate period of 36 months of actual service on all authorized U.S.-flag large passenger vessels combined. Once this 36-month limitation has been reached, the merchant mariner's document becomes invalid and the individual's employer must return it to the Coast Guard, and the individual is no longer authorized service in a position requiring a merchant mariner's document on any U.S.-flag large passenger vessel. Under current law, all individuals serving in the steward's department on passenger vessels of 100 gross register tons

(GRT)or more must hold a merchant mariner's document (MMD). 46 U.S.C. 8701. The only exception is for entertainment personnel employed for a period of 30 days or less per year, who are exempt from the MMD requirement. Coast Guard regulations governing the issuance of MMDs currently prohibit the issuance of MMDs to non-resident aliens. See 46 CFR part 12. The Coast Guard, through this interim rule, is amending its regulations to authorize the issuance of MMDs to non-resident aliens authorized to work in the United States who meet the criteria of the Warner Act and the requirements set forth in this rule. III. Discussion of Interim Rule To implement 46 U.S.C. 8103(k), the Coast Guard is revising its regulations within 46 CFR subchapter B. This interim rule will add a new 46 CFR subpart 12.40. Companies that wish to hire non-resident aliens must meet the requirements specified in new § 12.40-7, subject to the civil penalty provisions specified in 46 U.S.C. 8103(f) for any violation of the section. The new subpart adds definitions for “large passenger vessel,” “non-resident alien,” and “steward's department.” It also contains citizenship and identity requirements for non-resident aliens employed as unlicensed seamen by large passenger vessels, in lieu of the requirements of 46 CFR 12.02-10, 12.02-12, and 12.02-14. In addition to those citizenship and identity requirements, this rule establishes the requirement that non-resident alien applicants satisfy the requirements of the Warner Act (discussed above), and stipulates how mariners, and the companies that employee them, must satisfy those requirements. The company must submit the additional required merchant mariner application information to the Coast Guard on the employee's behalf. Title 46 U.S.C. 8103(k)(3)(A) states that non-resident aliens may not be citizens or temporary or permanent residents of a country designated by the United States as a sponsor of terrorism. The Coast Guard interprets this to mean that non-resident aliens may not be citizens or residents of a country designated by the United States as a sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Under new section 12.40-11(c), the Coast Guard will not issue MMDs to non-resident aliens that are citizens or residents (temporary or permanent) of countries listed on the Department of State's “State Sponsors of Terrorism” list. The list, as of the date of publication of this rule, may be found at *http://www.state.gov/s/ct/c14151.htm* . The Warner Act also allows the Secretary of Homeland Security, upon consultation with the Secretary of State and the heads of other appropriate United States agencies, to determine that other countries present a security threat to the United States for purpose of determining eligibility for employment of non-resident aliens. DHS has initiated this consultation and may add more countries or lists of countries in the future as a result of these consultations. The interim rule also adds 46 CFR 15.530, which provides company responsibilities associated with employment of non-resident aliens on their vessels relative to the International Labor Organization's Merchant Shipping (Minimum Standards) Convention of 1976. Title 46 CFR 15.530 also requires that no more than 25 percent of the unlicensed seamen on a large passenger vessel be aliens, whether admitted to the United States for permanent residence or otherwise employable in the United States as non-resident aliens. This limitation is also mandated by 46 U.S.C. 8103(k)(2). Only three U.S.-flag vessels currently fall within the definition of “large passenger vessel” under 48 U.S.C. 8103(k), each of which are owned by the same cruise line. 1 Because the statute limits the non-resident aliens who are eligible for employment on large passenger vessels to aliens who have otherwise been employed by that cruise line for one year, and such aliens cannot compose more than 25% of the number of unlicensed seamen on such vessels, the Coast Guard believes that approximately 600 to 800 non-resident aliens could be transferred to employment on one of the three large passenger vessels within the first year of the rule taking effect. 1 The Coast Guard notes, however, that on April 11, 2007, the cruise line announced that it would be reflagging one of these three vessels to a foreign flag in the near future; ultimately reducing the number of eligible vessels to two. The Coast Guard notes that, although the Warner Act refers to section 101(a)(15)(d) of the INA (which defines aliens authorized for crew visas), it does not waive any provision or requirement of the INA pertaining to visas or employment eligibility for non-resident aliens. In addition, we note that all affected aliens must comply with any required identification, tracking and reporting programs, including DHS's United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) and the National Security Entry-Exit Registration System (NSEERS). The Coast Guard is promulgating this interim rule under its authority to issue MMDs, and only to that extent. IV. Regulatory Requirements A. Administrative Procedure Act The Coast Guard has determined that good cause exists to implement this rule as an interim rule under the Administrative Procedure Act, 5 U.S.C. 553(b). The Coast Guard, under this interim rule, is implementing a Congressional directive that does not provide Coast Guard with discretion in the issuance of MMDs to non-resident aliens as a class. Further, as discussed above, this rule will only directly regulate one party at this time—the owner of the three vessels that fall within the statutory definition of “large passenger vessels.” The Coast Guard has consulted with that carrier during the development of this interim rule. In addition, under the current statutory restrictions, only aliens already employed by this company can be transferred to employment on one of the three eligible passenger vessels. Given the limited regulatory impact of this rule, we do not believe there will be significant public interest in this interim rule. Accordingly, the Coast Guard has determined that delaying implementation of this rule to allow public comment prior to implementation would be impracticable and unnecessary. 5 U.S.C. 553(b). For reasons stated above, the Coast Guard also finds that good cause exists under 5 U.S.C. 553(d)(3) for making this rule effective less than 30 days after publication in the **Federal Register** . The Coast Guard, however, values public input to the regulatory process, and for this reason we are inviting post-effective-date comments on this interim rule. We may change this rule as a result of the comments we receive. B. Regulatory Evaluation Executive Order 12866 requires agencies to assess the costs and benefits of significant regulatory actions as defined in Section 3(f). At this time, we expect this interim rule will not be an economically significant action under Section 3(f)(1) of the Order (i.e., an annual effect of $100 million or more on the economy). The Coast Guard is promulgating this rulemaking as mandated by Congress through the Warner Act, see “Background and Purpose” section for more information about this legislation. The rule creates an exemption to allow qualified non-resident aliens to obtain MMDs for employment as unlicensed seamen in the steward's departments of large passenger vessels, as entertainment and service personnel, including wait staff, hotel housekeeping staff, and food handlers. Currently, only U.S. citizens, lawful permanent residents, and foreign nationals enrolled at the U.S. Merchant Mariner Academy can obtain MMDs as unlicensed seamen (and no more than 25 percent of these unlicensed seamen may be lawful permanent residents). This rule will permit non-resident aliens to also obtain MMDs for employment as unlicensed seamen on large passenger vessels, except no more than 25 percent of the unlicensed seamen on a large passenger vessel can be aliens (whether non-resident aliens or lawful permanent residents). The rule further requires that the non-resident aliens may only be employed in the steward's department of the large passenger vessel. Although the Warner Act, and this interim rule, allow large passenger vessels to hire non-immigrant aliens, neither the Act nor this rule mandate that they do so. Accordingly, there are no mandatory costs to large passenger vessels resulting from this interim rule. Rather, a company will only choose to avail itself of the exemption if the benefits to the company from the hiring of non-resident aliens are greater than the costs. The following is an assessment of the affected population, an industry profile, and an evaluation of the direct and indirect impacts of the rule. The only company affected by this rulemaking, discussed below, provided us with aggregated business data to protect proprietary and confidential business information and details of their business operations. The industry estimates discussed herein are preliminary and may not reflect the actual impacts after industry implements the alternative compliance method. i. Affected Population Vessel Owners The rule will affect owners of large passenger vessels more than 70,000 gross tons, with a capacity of at least 2,000 passengers, and documented with a coastwise endorsement (e.g. U.S.-flag vessel). Vessel owners will be able to hire non-resident aliens to comprise up to 25 percent of the unlicensed seamen onboard their vessels, but only in the steward's department. The rule allows vessel owners to hire only those non-resident aliens that have been employed, for a period of not less than one year, on a passenger vessel, including a foreign flag passenger vessel, under the same common ownership, control or managing ownership as the U.S.-flag vessel on which they will be working, see the “Discussion of Interim Rule” section for more detail on the conditions and restrictions for hiring non-resident aliens. Based on Coast Guard data, we determined there are three large passenger vessels currently in service that meet the qualifications of this rule. Norwegian Cruise Line America

(NCLA)operates these vessels in coastwise service in the Hawaiian Islands. NCLA is a brand of the Miami-based Norwegian Cruise Line Corporation (NCL), which itself is a subsidiary of Star Cruises Limited of Hong Kong. NCLA announced on April 11, 2007, that it would be removing one of the three vessels from U.S. flag service and re-flagging for foreign service. At this time, we have no information to suggest that additional companies will enter into coastwise service with large passenger vessels, and we do not expect NCLA to expand its coastwise fleet of large passenger vessels because of this rule. This is due to the costs associated with flagging and operating vessels of this nature in the United States. Unlicensed Mariners The rule affects unlicensed mariners working on or applying for work on these vessels. This rule allows vessel owners to employ non-resident aliens on their vessels, capped at 25 percent of the overall total of unlicensed seamen per vessel. This rule also indirectly affects unions that maintain the collective bargaining agreements for these mariners in terms of changes in membership. Based on information from NCLA, the Coast Guard anticipates that we will issue MMDs to approximately 600 to 800 non-resident aliens within the first year of the rule. By the end of the second year of the rule, the Coast Guard estimates that we will issue an additional 900 to 1,200 MMDs to support non-resident alien crew shift change and reserve. After this two-year implementation period, NCLA intends to maintain an average annual full compliment of 1,500 to 2,000 onboard, shift, and reserve non-resident alien crewmembers under this rule. Government Resources The rule will also affect Coast Guard and potentially other government resources used to process, review, and issue documentation to unlicensed mariners and non-resident aliens affected by this rule. We estimate that certain Coast Guard Regional Examination Centers

(RECs)in the Hawaiian Islands and West Coast may incur increased processing burden to accommodate industry participation in this rulemaking, especially in the first two years as mentioned below. We anticipate that the requirements of this rule and the ultimate issuance of MMDs to non-resident aliens will involve additional processing exceeding the current processing for U.S. residents to ensure that background checks and applications meet security requirements. The additional Coast Guard burden at the RECs will be proportional to the number of applications submitted by vessel owners on behalf of non-resident aliens. At this time, however, we anticipate that this rule will not substantially change the annual total number of MMD applications received or the total number of MMDs issued by the Coast Guard. Based on correspondence between NCLA and the Coast Guard, NCLA stated that this rule would stabilize the crew situation onboard the three vessels and reduce turnover rates. NCLA claims that the potential workforce stability that results from this rule will eventually reduce the number of MMD applications that the Coast Guard processes for NCLA crews. ii. Industry Profile Based on industry information, the number of overall Hawaii cruise ship passengers grew from 240,800 in 2004 to about 398,000 in 2005. In 2006, approximately 408,500 cruise passengers visited Hawaii onboard 56 cruise ships, including NCLA's three U.S.-flag vessels. Capacity has also increased over the past several years and passenger costs have decreased. Competition from cruises with foreign crews have pushed prices down, in particular those offering 15-day cruises from the West Coast. Based on industry information, in general the cruise industry has historically consisted of foreign flag vessels, as opposed to U.S.-flag vessels, employing mariners from a variety of foreign countries in lower wage scales and for longer hours than U.S. mariners. NCLA must operate their U.S.-flag fleet with mostly U.S. citizens and residents, driving labor costs higher for NCLA than for cruise lines operating foreign flag vessels with foreign mariners. Based on industry information, the cost structure for operating the affected U.S.-flag vessels will be higher than operating foreign flag vessels due to the high labor costs associated with hiring and maintaining U.S. crews. NCLA claims that high crew costs and increased industry capacity directly contribute to the decrease in the profitability of their U.S.-flag fleet. According to NCLA, the annual turnover rate for U.S. unlicensed mariners working as hospitality staff on these vessels has been as high as 200 percent suggesting the undesirability by U.S. unlicensed mariners to work in hospitality positions and under the five months on and one month off crew shift conditions on the domestic vessels. NCLA has recently reported that the current turnover rate for the U.S. unlicensed mariners has fallen to 110 percent. NCLA has stated that the high turnover rate and the associated costs of maintaining an all U.S. crew is the only reason why they are participating in the alternative compliance method. As turnover occurs for the U.S. crew, we expect NCLA to employ the full contingent of non-resident aliens allowed by this rule. iii. Direct Impacts We expect most of the direct costs of the rule will be borne by NCLA. The rule will require companies to perform an employer-conducted background check and submit additional required merchant mariner application information to the Coast Guard on the employee's behalf. However, NCLA participation in this alternative compliance method is voluntary and NCLA will only participate if the net benefits of doing so are positive. We estimate the benefit to NCLA from participating in this rule to be the cost savings made through reduced turnover and decreased startup training since the non-resident alien hired under this program will have experience aboard foreign flag vessels. We have not estimated the overall effectiveness of this rule in reducing turnover rates or labor costs for NCLA. NCLA provided preliminary information that suggests they could reduce turnover rates by about 25 to 35 percent annually resulting in a potential reduction in labor costs by approximately $5 to $10 million annually; however, these are preliminary estimates and NCLA cannot estimate the actual reduction in turnover rates and labor costs until they implement the alternative compliance program. Being that NCLA is the only company directly regulated by this rulemaking and these estimates are based on proprietary and confidential business information, the Coast Guard and DHS cannot substantiate these estimates. This reduction in labor cost is the estimated cost savings or net benefit for NCLA to participate in the alternative MMD citizenship compliance method of this rule. Indirect Impacts We reviewed potential indirect impacts of this rule on labor conditions and prevailing wages for U.S. unlicensed mariners and non-resident aliens employed under the rule. We do not have information to suggest that NCLA will replace U.S. mariners currently employed in the steward's department on these vessels with non-resident aliens. In addition, NCLA must still employ U.S. residents for at least 75 percent of the total unlicensed seamen onboard their U.S.-flag vessels. Given the high turnover rate among the U.S. crew, we expect NCLA will still face challenges recruiting and maintaining their required U.S. resident hospitality staff onboard these vessels. The Act does not mandate nor does the rule require that owners and operators bear responsibilities associated with conditions of employment and shipboard living arrangements for non-resident aliens on their vessels. The United States is signatory to the International Labor Organization's Merchant Shipping (Minimum Standards) Convention of 1976 (ILO 147), which establishes shipboard conditions of employment and shipboard living arrangements. Since the United States is signatory to this Convention, participating owners and operators must comply with the requirements of the convention in their employment of all mariners onboard. The Act does not mandate that participating owners and operators pay the non-resident aliens the same prevailing wages as the U.S. crew. However, United States' responsibilities under the International Labor Organization's Merchant Shipping (Minimum Standards) Convention of 1976 (including the Conventions in the Annex), require that seamen can negotiate compensation and that seamen have the right to enter into collective bargaining agreements. Based on industry information, the sole affected owner

(NCLA)has entered into a collective bargaining agreement with the current U.S. crew and intends on employing non-resident aliens under the same agreement. This rule does not require participating owners to extend current labor agreements to non-resident aliens employed under this program. The collective bargaining agreement between the affected owner and the union will determine non-resident alien employment compensation and pay. We are interested in the potential impacts from this rule on industry and mariners, and we request public comment on these potential impacts. If you think that this rulemaking would have a significant economic impact, please submit a comment to the Docket Management Facility at the address under ADDRESSES . In your comment, explain why, how, and to what degree you think this rule would have an economic impact on you. C. Small Entities The Regulatory Flexibility Act (“RFA”; 5 U.S.C. 601-612, as amended) requires agencies to consider whether regulatory actions would have a significant economic impact on a substantial number of small entities. RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard determined that this rule is exempt from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Therefore, an RFA analysis is not required for this rule. The Coast Guard, nonetheless, expects that this interim rule will not have a significant economic impact on a substantial number of small entities. This interim rule will affect owners and operators of, and unlicensed seamen working on or applying for work on, large passenger vessels of more than 70,000 gross tons, with a capacity of at least 2,000 passengers, and documented with a coastwise endorsement. This rulemaking will also indirectly affect unions for unlicensed mariners. We have determined that individual mariners and the unions affected by this rule are not small entities under the definition of a small entity in the RFA. We also determined that the unions are not directly regulated by the rule. Owners and operators affected by this rule will most likely be classified under one of the following North American Industry Classification System (NAICS) 6-digit codes for water transportation: 483114—Coastal and Great Lakes Passenger Transportation or 483112—Deep Sea Passenger Transportation. According to the Small Business Administration's size standards, a U.S. company classified under these NAICS codes and employing less than 500 employees is considered a small entity. Based on Coast Guard data, we have determined that there is only one company affected by this rule. We researched company size and revenue data using proprietary and public business databases and found that this company employs more than 500 employees and is not considered a small entity by the Small Business Administration's size standards. In addition, we found that this company was a subsidiary of a large foreign-owned corporation. See the “Regulatory Evaluation” section for more information about the effected vessel owner. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES . In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it. D. 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 interim 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 LCDR Derek D'Orazio at 202-372-1405. 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. E. Collection of Information Under the Paperwork Reduction Act (44 U.S.C. 3501-3520), the Office of Management and Budget

(OMB)reviews agency collection of information requirements. As part of its review, OMB evaluates the practical utility of the information in light of the burden imposed by its collection. Collection of information requirements include reporting, recordkeeping, notification, and other similar requirements. This interim rule will require employers to submit employee information to the Coast Guard before the Coast Guard will issue an MMD for their employees. However, we expect only one company will be affected by this requirement each year, as there is only one company in a position to take advantage of these regulations. As such, this rule contains no new collection of information under the Paperwork Reduction Act. F. 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. States may not regulate in categories reserved for regulation by the Coast Guard. All of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. *See United States* v. *Locke* and *Intertanko* v. *Locke* , 529 U.S. 89 (March 6, 2000). This interim rule deals with personnel qualifications and the manning requirements on large passenger vessels. Because the States may not regulate within these categories, preemption under Executive Order 13132 is not an issue. G. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we discuss the effects of this rule elsewhere in this preamble. H. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. I. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. J. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. K. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. L. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not 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. M. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. N. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(c), of the Instruction, from further environmental documentation. This paragraph excludes regulatory actions concerning the training, qualifying, licensing, and disciplining of maritime personnel from further environmental documentation, and this interim rule concerns the licensing of maritime personnel. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects 46 CFR Part 12 Penalties, Reporting and recordkeeping requirements, Schools, Seamen. 46 CFR Part 15 Reporting and recordkeeping requirements, Seamen, Vessels. Accordingly, 46 CFR Chapter I is amended as follows: PART 12—CERTIFICATION OF SEAMEN 1. Add new Subpart 12.40 to read as follows: Subpart 12.40—Non-resident Alien Unlicensed Members of the Steward's Department on U.S.-Flag Large Passenger Vessels Sec. 12.40-1 Purpose of rules. 12.40-3 Definitions. 12.40-5 General application requirements. 12.40-7 Employer requirements. 12.40-9 Basis for denial. 12.40-11 Citizenship and identity. 12.40-13 Restrictions. 12.40-15 Alternative means of compliance. Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301, 7302, 7503, 7505, 7701 and 8103; Department of Homeland Security Delegation No. 0170.1. § 12.40-1 Purpose of rules. The rules in this subpart implement 46 U.S.C. 8103(k) by establishing requirements for the issuance of merchant mariner's documents, valid only for service in the steward's department of U.S.-flag large passenger vessels, to non-resident aliens. § 12.40-3 Definitions. As used in this subpart: *Large passenger vessel* means a vessel of more than 70,000 gross tons, as measured under 46 U.S.C. 14302 and documented under the laws of the United States, with capacity for at least 2,000 passengers and a coastwise endorsement under 46 U.S.C. chapter 121. *Non-resident alien* means an individual who is not a citizen or alien lawfully admitted to the United States for permanent residence, but who is employable in the United States under the Immigration and Nationality Act (8 U.S.C. 1101 *et seq.* ), including an alien crewman described in section 101(a)(15)(D)(i) of that Act who meets the requirements of 46 U.S.C. 8103(k)(3)(A). *Steward's department* means the department that includes entertainment personnel and all service personnel, including wait staff, housekeeping staff, and galley workers, as defined in the vessel security plan approved by the Secretary under 46 U.S.C. 70103(c). These personnel may also be referred to as members of the hotel department on a large passenger vessel. § 12.40-5 General application requirements.

(a)Unless otherwise expressly specified in this subpart, non-resident alien applicants for Coast Guard-issued merchant mariner's documents are subject to all applicable requirements contained in this subchapter.

(b)No application from a non-resident alien for a merchant mariner's document issued pursuant to this subpart will be accepted unless the applicant's employer satisfies all of the requirements of § 12.40-7. § 12.40-7 Employer requirements.

(a)The employer must submit the following to the Coast Guard, as a part of the applicant's merchant mariner's document application, on behalf of the applicant:

(1)A signed report that contains all material disciplinary actions related to the applicant, such as, but not limited to, violence or assault, theft, drug and alcohol policy violations, and sexual harassment, along with an explanation of the criteria used by the employer to determine the materiality of those actions;

(2)A signed report regarding an employer-conducted background check. The report must contain:

(i)A statement that the applicant has successfully undergone an employer-conducted background check;

(ii)A description of the employer-conducted background check, including all databases and records searched. The background check must, at a minimum, show that the employer has reviewed all information reasonably and legally available to the owner or managing operator, including the review of available court and police records in the applicant's country of citizenship, and any other country in which the applicant has received employment referrals, or resided, for the past 20 years prior to the date of application; and,

(iii)All information derived from the employer-conducted background check.

(3)The employer-conducted background check must be conducted to the satisfaction of the Coast Guard for a merchant mariner's document to be issued to the applicant.

(b)If a merchant mariner's document is issued to the applicant, the report and information required in paragraph (a)(2) of this section must be securely kept by the employer on the U.S.-flag large passenger vessel, or U.S.-flag large passenger vessels, on which the applicant is employed. The report and information must remain on the last U.S.-flag large passenger vessel on which the applicant was employed until such time as the merchant mariner's document is returned to the Coast Guard in accordance with paragraph

(d)of this section.

(c)If a merchant mariner's document or a transportation worker identification credential

(TWIC)is issued to the applicant, each merchant mariner's document and TWIC must be securely kept by the employer on the U.S.-flag large passenger vessel on which the applicant is employed. The employer must maintain a detailed record of the seaman's total service on all authorized U.S.-flag large passenger vessels, and must make that information available to the Coast Guard upon request, to demonstrate that the limitations of § 12.40-13(c) have not been exceeded.

(d)In the event that the seaman's merchant mariner's document and/or TWIC expires, the seaman's visa status terminates, the seaman serves onboard the U.S.-flag large passenger vessel(s) for 36 months in the aggregate as a nonimmigrant crewman, the employer terminates employment of the seaman or if the seaman otherwise ceases working with the employer, the employer must return the merchant mariner's document to the Coast Guard and/or the TWIC to the Transportation Security Administration within 10 days of the event.

(e)In addition to the initial material disciplinary actions report and the initial employer-conducted background check specified in paragraph

(a)of this section, the employer must:

(1)Submit an annual material disciplinary actions report to update whether there have been any material disciplinary actions related to the applicant since the last material disciplinary actions report was submitted to the Coast Guard.

(i)The annual material disciplinary actions report must be submitted to the satisfaction of the Coast Guard in accordance with the same criteria set forth in paragraph (a)(1) of this section, except that the period of time examined for the material disciplinary actions report need only extend back to the date of the last material disciplinary actions report; and

(ii)The annual material disciplinary actions report must be submitted to the Coast Guard on or before the anniversary of the issuance date of the merchant mariner's document.

(2)Conduct a background check each year that the merchant mariner's document is valid to search for any changes that might have occurred since the last employer-conducted background check was performed:

(i)The annual background check must be conducted to the satisfaction of the Coast Guard in accordance with the same criteria set forth in paragraph (a)(2) of this section, except that the period of time examined during the annual background check need only extend back to the date of the last background check; and

(ii)All information derived from the annual background check must be submitted to the Coast Guard on or before the anniversary of the issuance date of the merchant mariner's document.

(f)The employer is subject to the civil penalty provisions specified in 46 U.S.C. 8103(f) for any violation of this section. § 12.40-9 Basis for denial. In addition to the requirements for a merchant mariner's document established elsewhere in this subchapter, and the basis for denial established in § 12.02-4 of this part, an applicant for a merchant mariner's document issued pursuant to this subpart must:

(a)Have been employed, for a period of at least one year, on a foreign-flag passenger vessel, or foreign flag passenger vessels, that are under the same common ownership or control as the U.S.-flag large passenger vessel, or U.S.-flag large passenger vessels, on which the applicant will be employed upon issuance of a merchant mariner's document under this subpart.

(b)Have no record of material disciplinary actions during the employment required under paragraph

(a)of this section, as verified in writing by the owner or managing operator of the U.S.-flag large passenger vessel, or U.S.-flag large passenger vessels, on which the applicant will be employed.

(c)Have successfully completed an employer-conducted background check, to the satisfaction of both the employer and the Coast Guard.

(d)Meet the citizenship and identity requirements of § 12.40-11. § 12.40-11 Citizenship and identity.

(a)In lieu of the requirements of §§ 12.02-10, 12.02-12 and 12.02-14 of this part, a non-resident alien may apply for a Coast Guard-issued merchant mariner's document, endorsed and valid only for service in the steward's department of a U.S.-flag large passenger vessel as defined in this subpart, if he or she is employable in the United States under the Immigration and Nationality Act (8 U.S.C. 1101, *et seq.* ), including an alien crewman described in section 101 (a)(15)(D)(i) of that Act.

(b)To meet the citizenship and identity requirements of this subpart, an applicant must present an unexpired passport issued by the government of the country of which the applicant is a citizen or subject; and either a valid U.S. C-1/D Crewman Visa or other valid U.S. visa or authority deemed acceptable by the Coast Guard.

(c)Any non-resident alien applying for a merchant mariner's document under this subpart may not be a citizen of, or a temporary or permanent resident of, a country designated by the Department of State as a “State Sponsor of Terrorism” pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). § 12.40-13 Restrictions.

(a)A merchant mariner's document issued to a non-resident alien under this subpart authorizes service only in the steward's department of the U.S.-flag large passenger vessel(s), that is/are under the same common ownership and control as the foreign-flag passenger vessel(s), on which the non-resident alien served to meet the requirements of § 12.40-9(a):

(1)The merchant mariner's document will be endorsed for service in the steward's department in accordance with § 12.25-10 of this part;

(2)The merchant mariner's document may also be endorsed for service as a food handler if the applicant meets the requirements of § 12.25-20 of this part; and

(3)No other rating or endorsement is authorized, except lifeboatman, in which case all applicable requirements of this subchapter and the STCW Convention and STCW Code must be met.

(b)The following restrictions must be printed on the merchant mariner's document, or listed in an accompanying Coast Guard letter, or both:

(1)The name and official number of all U.S.-flag vessels on which the non-resident alien may serve. Service is not authorized on any other U.S.-flag vessel;

(2)Upon issuance, the merchant mariner's document must remain in the custody of the employer at all times;

(3)Upon termination of employment, the merchant mariner's document must be returned to the Coast Guard within 10-days in accordance with § 12.40-7;

(4)A non-resident alien issued a merchant mariner's document under this subpart may not perform watchstanding, engine room duty watch, or vessel navigation functions; and,

(5)A non-resident alien issued a merchant mariner's document under this subpart may perform emergency-related duties provided:

(i)The emergency-related duties do not require any other rating or endorsement, except lifeboatman as specified in paragraph (a)(3) of this section;

(ii)The non-resident alien has completed familiarization and basic safety training, as required in § 15.1105 of this subchapter;

(iii)That if the non-resident alien serves as a lifeboatman, he or she must have the necessary lifeboatman's endorsement; and

(iv)The non-resident alien has completed the training for crewmembers on passenger ships performing duties involving safety or care for passengers, as required in subpart 12.35 of this part.

(c)A non-resident alien may only serve for an aggregate period of 36 months actual service on all authorized U.S.-flag large passenger vessels combined under the provisions of this subpart:

(1)Once this 36-month limitation is reached, the merchant mariner's document becomes invalid and must be returned to the Coast Guard under § 12.40-7(d), and the non-resident alien is no longer authorized serve in a position requiring a merchant mariner's document on any U.S.-flag large passenger vessel; and

(2)An individual who successfully adjusts his or her immigration status to become either a alien lawfully admitted for permanent residence to the United States or citizen of the United States may apply for a merchant mariner's document, subject to the requirements of §§ 12.02-10, 12.02-12 and 12.02-14 of this part, without any restrictions or limitations imposed by this subpart. § 12.40-15 Alternative means of compliance.

(a)The owner or managing operator of a U.S.-flag large passenger vessel, or U.S.-flag large passenger vessels, seeking to employ non-resident aliens issued merchant mariner's documents under this subpart may submit a plan to the Coast Guard, which, if approved, will serve as an alternative means of complying with the requirements of this subpart.

(b)The plan must address all of the elements contained in this subpart, as well as the related elements contained in § 15.530 of this subchapter, to the satisfaction of the Coast Guard. PART 15—MANNING REQUIREMENTS 3. The authority citation for part 15 is revised to read as follows: Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104, 8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904, 8905(b), 8906, 9102, and 8103; and Department of Homeland Security Delegation No. 0170.1. 4. Add new § 15.530 to subpart D to read as follows: § 15.530 Large passenger vessels.

(a)The definition of terms used in this section is the same as § 12.40-3 of this subchapter.

(b)The owner or operator of a U.S.-flag large passenger vessel must ensure that any non-resident alien holding a Coast Guard-issued merchant mariner's document described in subpart 12.40 of this subchapter is provided the rights, protections, and benefits of the International Labor Organization's Merchant Shipping (Minimum Standards) Convention of 1976.

(c)On U.S.-flag large passenger vessels, non-resident aliens holding a Coast-Guard issued merchant mariner's document described in subpart 12.40 of this subchapter:

(1)May only be employed in the steward's department on the vessel(s) specified on the merchant mariner's document or accompanying Coast Guard letter under § 12.40-13(b)(1) of this subchapter;

(2)May only be employed for an aggregate period of 36 months actual service on all authorized U.S.-flag large passenger vessels combined, under § 12.40-13(c) of this subchapter;

(3)May not perform watchstanding, engine room duty watch, or vessel navigation functions, under § 12.40-13(b)(4) of this subchapter; and

(4)May perform emergency-related duties only if, under § 12.40-13(b)(5) of this subchapter:

(i)The emergency-related duties do not require any other rating or endorsement, except lifeboatman as specified in § 12.40-13(a)(3) of this subchapter;

(ii)The non-resident alien has completed familiarization and basic safety training, as required in § 15.1105 of this part;

(iii)That if the non-resident alien serves as a lifeboatman, he or she must have the necessary lifeboatman's endorsement; and

(iv)The non-resident alien has completed the training for crewmembers on passenger ships performing duties involving safety or care for passengers, as required in subpart 12.35 of this subchapter.

(d)No more than 25 percent of the total number of unlicensed seamen on a U.S.-flag large passenger vessel may be aliens, whether admitted to the United States for permanent residence or otherwise allowed to be employed in the United States as non-resident aliens.

(e)The owner or operator of a U.S.-flag large passenger vessel employing non-resident aliens holding Coast Guard-issued merchant mariner's documents described in subpart 12.40 of this subchapter must:

(1)Retain custody of all non-resident alien merchant mariner's documents for the duration of employment, under § 12.40-13(b)(2) of this subchapter; and

(2)Return all non-resident alien merchant mariner's documents to the Coast Guard upon termination of employment, under § 12.40-13(b)(3) of this subchapter.

(f)The owner or operator of a U.S.-flag large passenger vessel employing non-resident aliens holding Coast Guard-issued merchant mariner's documents described in subpart 12.40 of this subchapter is subject to the civil penalty provisions specified in 46 U.S.C. 8103(f), for any violation of this section. Dated: April 18, 2007. Thad W. Allen, Admiral, U.S. Coast Guard, Commandant. [FR Doc. E7-7696 Filed 4-23-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 04011-2010-4114-02; I.D. 041707E] Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast

(NE)Multispecies Fishery; Modification of the Yellowtail Flounder Landing Limit for the U.S./Canada Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce ACTION: Temporary rule; landing limit. SUMMARY: NMFS announces a decrease in the Georges Bank

(GB)yellowtail flounder trip limit to 3,000 lb (1,361 kg) for NE multispecies days-at-sea

(DAS)vessels fishing in the U.S./Canada Management Area. This action is authorized by the regulations implementing Amendment 13 to the NE Multispecies Fishery Management Plan and is intended to prevent over-harvesting of the Total Allowable Catch

(TAC)for GB yellowtail flounder during the 2007 fishing year. This action is being taken to provide additional opportunities for vessels to fully harvest the TACs for transboundary stocks of GB cod, haddock, and yellowtail flounder under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). DATES: Effective May 1, 2007, through April 30, 2008. FOR FURTHER INFORMATION CONTACT: Tobey Curtis, Fishery Management Specialist,

(978)281-9273, fax

(978)281-9135. SUPPLEMENTARY INFORMATION: Regulations governing the GB yellowtail flounder landing limit within the U.S./Canada Management Area are found at § 648.85(a)(3)(iv)(C) and (D). The regulations authorize vessels issued a valid limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area, as defined at § 648.85(a)(1), under specific conditions. The TAC for GB yellowtail flounder for the 2007 fishing year (May 1, 2007 - April 30, 2008) is proposed to be 900 mt (72 FR 10967, March 12, 2007); a 43-percent reduction from the TAC for the 2006 fishing year. The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to increase or decrease the trip limits in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation. Based upon the reduced 2007 TAC for GB yellowtail flounder, and projections of harvest rates in the fishery, the current trip limits could result in the over-harvest of the GB yellowtail flounder TAC during the 2007 fishing year, and reduce the opportunities to fish for Eastern GB cod and haddock in the Eastern U.S./Canada Area. Based on this information, NMFS is decreasing the current 10,000-lb (4,536-kg) trip limit in the U.S./Canada Management Area to 3,000 lb (1,361 kg), effective May 1, 2007, through April 30, 2008. Accordingly, there is a 3,000 lb (1,361 kg) trip limit on the amount of GB yellowtail flounder that can be harvested or landed for the 2007 fishing year for vessels subject to these regulations. This will allow for the fishery in the Eastern U.S./Canada Area to remain open longer, and increase the opportunities to target Eastern GB cod and haddock during the 2007 fishing year. NE multispecies vessels fishing in the Eastern U.S./Canada Area under a NE multispecies DAS with trawl gear must use either a haddock separator trawl or a flounder trawl net, as specified at § 648.85(a)(3)(iii). GB yellowtail flounder landings will be closely monitored through the Vessel Monitoring System

(VMS)and other available information. Should 100 percent of the TAC allocation for GB yellowtail flounder be projected to be harvested, the Eastern U.S./Canada Area will close to all limited access NE multispecies DAS vessels, and all vessels will be prohibited from harvesting, possessing, or landing yellowtail flounder from the entire U.S./Canada Management Area for the remainder of the fishing year. Conversely, if the TAC is projected to be under-harvested by the end of the fishing year, inseason adjustments to increase the trip limit may be considered. Classification This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866. Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Assistant Administrator finds good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because notice, comment, and a delayed effectiveness would be impracticable and contrary to the public interest. The regulations under § 658.85(a)(3)(iv)(D) grant the Regional Administrator the authority to adjust the GB yellowtail flounder trip limit to prevent over-harvesting or under-harvesting the TAC allocation. Given that there is a relatively small GB yellowtail flounder TAC of 900 mt, the time necessary to provide for prior notice, opportunity for public comment, or delayed effectiveness could prevent the agency from ensuring that the TAC is not exceeded. If implementation of this action is delayed, the NE multispecies fishery could fully harvest the TAC for GB yellowtail flounder prior to the end of the 2007 fishing year. Over-harvesting the GB yellowtail TAC would result in an overage deduction in fishing year 2008, and increase economic impacts to the industry and social impacts beyond those analyzed for Amendment 13. A delay in the effectiveness of the trip limit modification in this rule could prevent the agency from meeting its management obligation and ensuring the opportunity for the 2007 TACs for GB cod, haddock, and yellowtail flounder specified for the U.S./Canada Management Area to be harvested at a level that approaches optimum yield. Any such delay could lead to the negative impacts to the fishing industry described above. The decision to take this action could not be made earlier due to the delayed recommended specifications of the 2007 fishing year TACs in the U.S./Canada Management Area from the Transboundary Management Guidance Committee and the New England Fishery Management Council. The proposed 2007 TACs were published in the **Federal Register** on March 12, 2007, and the public comment period closed on April 11, 2007. Therefore, the final decision to implement a 900 mt TAC for GB yellowtail flounder, and a precautionary, reduced trip limit for the 2007 fishing year, could not be made until after that comment period closed. The rate of harvest of the GB yellowtail flounder TAC in the U.S./Canada Management Area is updated weekly on the internet at *http://www.nero.noaa.gov* . Accordingly, the public is able to obtain information that would provide some advanced notice of a potential action to provide additional opportunities to the NE multispecies industry to fully harvest the TAC for GB yellowtail flounder, as well as Eastern GB cod and haddock, during the 2007 fishing year. Further, the potential for this action was considered and open to public comment during the development of Framework 42. Therefore, any negative effect the waiving of public comment and delayed effectiveness may have on the public is mitigated by these factors. Authority: 16 U.S.C. 1801 *et seq.* Dated: April 19, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-7789 Filed 4-23-07; 8:45 am] BILLING CODE 3510-22-S 72 78 Tuesday April 24, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27982; Directorate Identifier 2007-NM-009-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300 Series Airplanes; Model A300-600 Series Airplanes; and Model A310 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)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: * * * accidents which occurred to in-service aircraft caused by the violent opening of a passenger door, related to excessive residual pressurization in the cabin on ground. This unsafe condition could result in injury to crew members opening the passenger door. 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 24, 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: Tom Stafford, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1622; fax

(AD)falls within the scope of a set of corrective measures undertaken by AIRBUS subsequent to accidents which occurred to in-service aircraft caused by the violent opening of a passenger door, related to excessive residual pressurization in the cabin on ground. In order to prevent the flight crews operating in manual mode when discrete spoilers signals are true and ensures OFV (outflow valve) or depress valve are driven open after landing, this modification consists of introducing an automatic opening logic either for the forward and aft OFV or for the single depress valve, when the aircraft is on ground, immediately after landing. The MCAI requires the modification described previously. This unsafe condition could result in injury to crew members opening the passenger door. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued Service Bulletins A300-21-0132, dated July 28, 2006; A300-21-6049, Revision 01, dated September 15, 2006; and A310-21-2062, dated July 20, 2006. The actions described in the 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 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 191 products of U.S. registry. We also estimate that it would take up to 34 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost up to $5,470 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 up to $1,564,290, or $8,190 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: **Airbus:** Docket No. FAA-2007-27982; Directorate Identifier 2007-NM-009-AD. Comments Due Date

(a)We must receive comments by May 24, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to the following airplanes, certificated in any category:

(1)Model A300 series airplanes, manufacturer serial numbers 0202, 0205, 0225, 0299, and 0302, in forward facing crew cockpit configuration, except airplanes which have received in service application of Airbus Service Bulletin A300-21-0132.

(2)Model A310 series airplanes, all certified models, all serial numbers, except airplanes which have received in service application of Airbus Service Bulletin A310-21-2062.

(3)Model A300-600 series airplanes, all certified models, all serial numbers, on which Airbus Modification 03881 is embodied, except airplanes which have received either incorporation of Airbus Modification 12942 during production, or application of Airbus Service Bulletin A300-21-6049 in service. Subject

(d)Doors. Reason

(e)The mandatory continued airworthiness information

(MCAI)states: The modification rendered mandatory by this Airworthiness Directive

(f)Unless already done, do the following actions.

(1)Within 18 months after the effective date of this AD: Install an automatic opening logic either for the forward and aft OFV (outflow valve) or for the single depress valve, as applicable, by introducing the use of discrete spoiler signals, driving one (Model A300 airplanes) or two (Model A310 airplanes and Model A300-600 series airplanes) time delay relays, in accordance with the instructions of Airbus Service Bulletin A300-21-0132, dated July 28, 2006; A310-21-2062, dated July 20, 2006; or A300-21-6049, Revision 01, dated September 15, 2006; as applicable.

(2)Actions done before the effective date of this AD in accordance with Airbus Service Bulletin A300-21-6049, dated August 31, 2005, are acceptable for compliance with the corresponding requirements of this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, ATTN: Tom Stafford, 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 European Aviation Safety Agency Airworthiness Directive 2007-0005, dated January 8, 2007; and Airbus Service Bulletins A300-21-0132, dated July 28, 2006; A300-21-6049, Revision 01, dated September 15, 2006; and A310-21-2062, dated July 20, 2006; for related information. Issued in Renton, Washington, on April 16, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7733 Filed 4-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27981; Directorate Identifier 2007-NM-021-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-145XR Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found that the refueling line inside the ventral fuel tank on the Embraer EMB-145XR aircraft model is not protected in accordance with SFAR-88 (Special Federal Aviation Regulation 88) requirements. The unsafe condition is potential ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss 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 24, 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-2007-27981; Directorate Identifier 2007-NM-021-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2006-12-01, effective January 4, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found that the refueling line inside the ventral fuel tank on the Embraer EMB-145XR aircraft model is not protected in accordance with SFAR-88 (Special Federal Aviation Regulation 88) requirements. The unsafe condition is potential ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The MCAI requires installation of a bonding jumper between the pilot valve line tube and the pressure refueling system tube. You may obtain further information by examining the MCAI in the AD docket. The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design ( *i.e.* , type certificate

(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Relevant Service Information EMBRAER has issued Service Bulletin 145-28-0026, dated May 16, 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, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a **Note** within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 69 products of U.S. registry. We also estimate that it would take about 11 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $56 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 $64,584, or $936 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-2007-27981; Directorate Identifier 2007-NM-021-AD. Comments Due Date

(a)We must receive comments by May 24, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to EMBRAER Model EMB-145XR airplanes; certificated in any category; as identified in EMBRAER Service Bulletin 145-28-0026, dated May 16, 2006. Subject

(d)Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: It has been found that the refueling line inside the ventral fuel tank on the Embraer EMB-145XR aircraft model is not protected in accordance with SFAR-88 (Special Federal Aviation Regulation 88) requirements. The unsafe condition is potential ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The MCAI requires installation of a bonding jumper between the pilot valve line tube and the pressure refueling system tube. Actions and Compliance

(f)At the time specified in paragraphs (f)(1) and (f)(2) of this AD, unless already done, install a bonding jumper between the pilot valve line tube and the pressure refueling system tube, after removing ventral fuel tank access panel 196FR, as described in EMBRAER Service Bulletin 145-28-0026, dated May 16, 2006.

(1)For airplanes that have accumulated less than 5,000 total flight hours as of the effective date of this AD: Prior to the accumulation of 10,000 total flight hours.

(2)For airplanes that have accumulated 5,000 or more total flight hours as of the effective date of this AD: Within 5,000 flight hours after the effective date of this AD. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: 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. 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.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI Brazilian Airworthiness Directive 2006-12-01, effective January 4, 2007; and EMBRAER Service Bulletin 145-28-0026, dated May 16, 2006; for related information. Issued in Renton, Washington, on April 16, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7736 Filed 4-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27983; Directorate Identifier 2006-NM-192-AD] RIN 2120-AA64 Airworthiness Directives; Avions Marcel Dassault-Breguet Model Falcon 10 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive

(AD)that applies to all Dassault Model Falcon 10 series airplanes. The existing AD currently requires revising the airplane flight manual

(AFM)and installing a placard in the flight deck to prohibit flight into known or forecasted icing conditions. In lieu of the AFM revision and placard installation, that AD allows identifying the part number of each flexible hose in the wing

(202)493-2251. • *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. Contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)227-1137; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-27983; Directorate Identifier 2006-NM-192-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light 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 with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion On August 26, 2005, we issued AD 2005-18-14, amendment 39-14254 (70 FR 53540, September 9, 2005), for all Dassault Model Falcon 10 series airplanes. That AD requires revising the airplane flight manual

(slat)anti-icing system, performing repetitive inspections of each hose for delamination, and performing corrective actions if necessary. That AD allows the following actions (also in lieu of the AFM revision and placard installation): new repetitive inspections for delamination at reduced intervals, corrective actions if necessary, and an additional AFM revision to include a statement to track flight cycles when the slat anti-icing system is activated. That AD also provides an option to repetitively replace the existing flexible hoses with improved flexible hoses, which terminates the repetitive inspection requirements. That AD resulted from a report of in-service delamination of a flexible hose in the slat anti-icing system at a time earlier than previously reported. We issued that AD to prevent collapse of the flexible hoses in the slat anti-icing system, which could lead to insufficient anti-icing capability and, if icing is encountered in this situation, could result in reduced controllability of the airplane. Actions Since Existing AD Was Issued The preamble to AD 2005-18-14 explains that we considered the requirements “interim action” and were considering further rulemaking. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has since mandated the previously optional terminating action. We now have determined that further rulemaking is indeed necessary. This proposed AD follows from that determination. Relevant Service Information AD 2005-18-14 refers to Dassault Service Bulletin F10-313, dated August 10, 2005, as the appropriate source of service information for the optional terminating action. The manufacturer has since revised the service bulletin. Revision 1, dated May 10, 2006, advises of revised related maintenance documents and revised life limits for hoses having P/N FAL1007. The procedures in Revision 1 are the same as those in the original version of the service bulletin. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued EASA airworthiness directive 2006-0114, dated May 10, 2006, to ensure the continued airworthiness of these airplanes in the European Union. FAA's Determination and Requirements of the Proposed AD These airplanes are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2005-18-14. This proposed AD would retain the existing requirements except the requirement to report inspection results, and mandate the previously optional terminating action. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this proposed AD, at an average hourly labor rate of $80. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost AFM revision and placard installation (an option in AD 2005-18-14) 1 $0 $80 Up to 146 Up to $11,680. Detailed inspection (an option in AD 2005-18-14) 1 0 $80, per inspection cycle Up to 146 Up to $11,680, per inspection cycle. Borescope inspection (an option in AD 2005-18-14) 3 0 $240, per inspection cycle Up to 146 Up to $35,040, per inspection cycle. Hose replacement (new proposed action) 8 880 $1,520 Up to 146 Up to $221,920. 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 have 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 that the 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. See the ADDRESSES section for a location to examine the regulatory evaluation. 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 Federal Aviation Administration

(FAA)amends § 39.13 by removing amendment 39-14254 (70 FR 53540, September 9, 2005) and adding the following new airworthiness directive (AD): **Avions Marcel Dassault-Breguet Aviation (AMD/BA):** Docket No. FAA-2007-27983; Directorate Identifier 2006-NM-192-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by May 24, 2007. Affected ADs

(b)This AD supersedes AD 2005-18-14. Applicability

(c)This AD applies to all Avions Marcel Dassault-Breguet Model Falcon 10 airplanes. Unsafe Condition

(d)This AD results from a report of in-service delamination of a flexible hose in the slat anti-icing system at a time earlier than previously reported. We are issuing this AD to prevent collapse of the flexible hoses in the slat anti-icing system, which could lead to insufficient anti-icing capability and, if icing is encountered in this situation, could result in reduced controllability of the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of the Requirements of AD 2005-18-14 Repetitive Detailed Inspections, or Airplane Flight Manual

(AFM)Revision and Placard Installation

(f)Within 14 days after April 26, 2005 (the effective date of AD 2005-07-23, which was superseded by AD 2005-18-14), perform the actions specified in either paragraph (f)(1) or (f)(2) of this AD:

(1)Revise the Limitations section of the Dassault Aviation Falcon 10 AFM, and install a placard in the flight deck, to include the following information: “Flights into known or forecasted icing conditions are prohibited.” The AFM revision may be done by inserting a copy of this AD into the AFM. Install the placard on the pedestal in clear view of the pilot.

(2)Determine the part number of each flexible hose installed in the slat anti-icing system, perform a detailed inspection of the internal walls of the hoses for delamination, and perform any applicable corrective action, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Dassault Alert Service Bulletin F10-A312, dated February 25, 2005. If the part number for any hose cannot be determined, before further flight, replace that hose with a hose having part number (P/N) FAL1005D. Any corrective action must be done before further flight. Repeat the detailed inspection thereafter at intervals not to exceed 60 flight cycles or 3 months, whichever is first, until the actions required by paragraph

(i)of this AD are accomplished. Note 1: When a statement identical to that in paragraph (f)(1) of this AD has been included in the general revision of the AFM, the general revision may be inserted into the AFM, and the copy of this AD may be removed from the AFM. Note 2: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”

(g)For airplanes on which the actions described in paragraph (f)(1) of this AD are performed, doing the actions described in paragraph (f)(2) of this AD is terminating action for the requirements of paragraph (f)(1) of this AD. Once the initial detailed inspection specified in paragraph (f)(2) of this AD is performed, the AFM limitation and placard required by paragraph (f)(1) of this AD may be removed. Borescope Inspections

(h)For airplanes not operated under the limitation in paragraph (f)(1) of this AD: Before the next 10 flight cycles in which the slat anti-icing system is activated after the effective date of this AD, do a borescope inspection of each flexible hose installed in the slat anti-icing system. Do all the inspections and any applicable corrective action (including replacing the hose with a new hose having P/N FAL1005D), by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Dassault Alert Service Bulletin F10-A312, Revision 1, dated June 27, 2005. Any corrective action must be done before further flight. Repeat the inspection thereafter at intervals not to exceed 10 flight cycles in which the slat anti-icing system is activated. Doing this inspection terminates the repetitive inspection requirements of paragraph (f)(2) of this AD.

(i)For airplanes on which the actions described in paragraph (f)(1) of this AD are performed, doing the actions described in paragraph

(h)of this AD is terminating action for the requirements of paragraph (f)(1) of this AD. Once the initial borescope inspection specified in paragraph

(h)of this AD is performed, the AFM limitation and placard required by paragraph (f)(1) of this AD may be removed. AFM Revision

(j)For airplanes not operated under the limitation in paragraph (f)(1) of this AD: Before further flight after the effective date of this AD, revise the Limitations section of the Dassault Aviation Falcon 10 AFM, to include the following information. “After each flight in which the slat anti-ice system is activated, inform maintenance.” The AFM revision may be done by inserting a copy of this AD into the AFM. Note 3: When a statement identical to that in paragraph (j)(1) of this AD has been included in the general revision of the AFM, the general revision may be inserted into the AFM, and the copy of this AD may be removed from the AFM. New Requirements of This AD Hose Replacement

(k)Within 330 flight hours or 7 months after the effective date of this AD, whichever occurs first: Replace the flexible hoses installed in the slat anti-icing system with new hoses having P/N FAL1007, in accordance with the Accomplishment Instructions of Dassault Service Bulletin F10-313, Revision 1, dated May 10, 2006. This replacement terminates the requirements of paragraphs

(f)through

(j)of this AD. For airplanes previously operated under the limitation in paragraph (f)(1) of this AD: When the hoses have been replaced, the AFM limitation and placard required by paragraph (f)(1) of this AD may be removed. Repeat the hose replacement at intervals not to exceed 700 flight cycles.

(l)Replacement of a hose before the effective date of this service bulletin in accordance with Dassault Service Bulletin F10-313, dated August 10, 2005, is acceptable for compliance with the requirements of paragraph

(k)of this AD. Alternative Methods of Compliance (AMOCs) (m)(1) The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)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.

(3)An AMOC approved previously in accordance with AD 2005-18-14 is approved as an AMOC for the corresponding provisions of this AD. Related Information

(n)EASA airworthiness directive 2006-0114, dated May 10, 2006, also addresses the subject of this AD. Issued in Renton, Washington, on April 16, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7741 Filed 4-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27610; Directorate Identifier 2007-CE-023-AD] RIN 2120-AA64 Airworthiness Directives; Diamond Aircraft Industries GmbH Model DA 42 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been determined that the surface roughness of the wing stub safety walks Series 300, gray color (equals sandpaper grid 40), installed during production on some aeroplane S/Ns, adversely affects the aircraft single engine climb performance. 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 24, 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:* Go to *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: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4145; fax:

(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27610; Directorate Identifier 2007-CE-023-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 Austrian Civil Aviation Administration (Austro Control), which is the airworthiness authority for Austria, has issued AD No. A-2005-003, dated October 21, 2005 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been determined that the surface roughness of the wing stub safety walks Series 300, gray color (equals sandpaper grid 40), installed during production on some aeroplane S/Ns, adversely affects the aircraft single engine climb performance. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Diamond Aircraft Industries GmbH has issued Mandatory Service Bulletin No. MSB-42-006/1, dated September 20, 2005; and Diamond Aircraft Airplane Flight Manual Temporary Revision Performance Data DA 42 AFM TR-MÄM-42-111/a, dated September 20, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 70 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $285 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 $25,550, or $365 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: **Diamond Aircraft Industries GmbH:** Docket No. FAA-2007-27610; Directorate Identifier 2007-CE-023-AD. Comments Due Date

(a)We must receive comments by May 24, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to DA 42 airplanes, serial numbers (S/N) 42.004 and up, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 57: Wings. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: It has been determined that the surface roughness of the wing stub safety walks Series 300, gray color (equals sandpaper grid 40), installed during production on some aeroplane S/Ns, adversely affects the aircraft single engine climb performance. Actions and Compliance

(f)Unless already done, do the following actions:

(1)*For S/N 42.004 through 42.035, and 42.037:* Within 60 days after the effective date of this AD, do the following actions following Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB-42-006/1, dated September 20, 2005:

(i)Exchange the wing stub safety walks following paragraph 1.8, Action 2 a) to b) of Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB-42-006/1, dated September 20, 2005.

(ii)Insert Diamond Aircraft Airplane Flight Manual Temporary Revision Performance Data DA 42 AFM TR-MÄM-42-111/a, dated September 20, 2005, Revision 3 to the Airplane Flight Manual (AFM), or any future revision that incorporates the same information into the Diamond Aircraft Industries GmbH Aircraft Airplane Flight Manual DA 42, Doc. 7.01.05-E.

(2)*For S/N 42.036, 42.038 through 42.064, 42.107, 42.109, 42.110, and 42.177:* Within 60 days after the effective date of this AD, insert Diamond Aircraft Airplane Flight Manual Temporary Revision Performance Data DA 42 AFM TR-MÄM-42-111/a, dated September 20, 2005, Revision 3 to the AFM, or any future revision that incorporates the same information into the Diamond Aircraft Industries GmbH Aircraft Airplane Flight Manual DA 42, Doc. 7.01.05-E.

(3)*For S/N 42.004 and up:* Within 60 days after the effective date of this AD, adhere to the following:

(i)No wing stub safety walks Series 300 (equals sandpaper grid 40), gray color, part number (P/N) D60-1127-10-51 (no revision letter attached) may be installed as a spare part on the Model DA 42 airplane. Only Diamond Aircraft Industries

(DAI)GmbH released safety walk P/Ns with a surface roughness equal to or finer than sandpaper grid 100 are approved for installation as spare parts.

(ii)Diamond Aircraft Airplane Flight Manual Temporary Revision Performance Data DA 42 AFM TR-MÄM-42-111/a, dated September 20, 2005, Revision 3 to the AFM, or any future revision that incorporates the same information, must remain part of Diamond Aircraft Industries GmbH Aircraft Airplane Flight Manual DA 42, Doc. 7.01.05-E. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows:

(1)The MCAI and service bulletin require the insertion of Diamond Aircraft Airplane Flight Manual Temporary Revision Performance Data DA 42 AFM TR-MÄM-42-111/a, dated September 20, 2005, Revision 3 to the Airplane Flight Manual, or any future revision that incorporates the same information into the Diamond Aircraft Industries GmbH Aircraft Airplane Flight Manual DA 42, Doc. 7.01.05-E, immediately upon receipt. We consider immediately upon receipt as an urgent safety of flight compliance time, and we do not consider this unsafe condition to be an urgent safety of flight condition. Because we do not consider this unsafe condition to be an urgent safety of flight condition, we issued this action through the normal notice of proposed rulemaking

(NPRM)AD process. The time of 60 days after the effective date of this AD is an adequate compliance for this AD action and met the FAA requirements of an NPRM followed by a final rule.

(2)Paragraphs A)i) and B)i) of the MCAI, state to assure that AFM TR-MAM-42-103, distributed with DAI MSB42-005, is inserted into AFM Doc. 7.01.05-E, rev. 2 or earlier revision. This AFM requirement was for an MCAI that the United States did not take AD action on. The action is no longer necessary when the actions proposed in this NPRM are done. Therefore, the action is not being mandated in the U.S. AD action.

(3)The MCAI references revision 2 of the AFM. However, the current revision level of the AFM is revision 3. The FAA AD references revision 3. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, ATTN: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4145; fax:

(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI Austrian Civil Aviation Administration Austro Control GmbH AD No. A-2005-003, dated October 21, 2005; Diamond Aircraft Industries GmbH Mandatory Service Bulletin No. MSB-42-006/1, dated September 20, 2005; and Diamond Aircraft Temporary Revision Performance Data DA 42 AFM TR-MÄM-42-111/a, dated September 20, 2005, for related information. Issued in Kansas City, Missouri, on April 17, 2007. Charles L. Smalley, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7752 Filed 4-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27723; Directorate Identifier 2007-CE-029-AD] RIN 2120-AA64 Airworthiness Directives; PIAGGIO AERO INDUSTRIES S.p.A. Model P-180 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: EASA EAD 2006-0072-E was issued on 31st March 2006 following a further failure of the forward support of the Main Wing Outboard Flap (MWOF), caused by corrosion. This condition, if not corrected, may cause surface twisting during deployment at landing. The analysis of that event highlighted the need for the reduction of the previous inspection interval which was mandated by ENAC through AD 2004-523, approved by EASA with reference 2004-12521. 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 24, 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:* Go to *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: Mr. Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4145; fax:

(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27723; Directorate Identifier 2007-CE-029-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2006-0305, dated October 9, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: EASA EAD 2006-0072-E was issued on 31st March 2006 following a further failure of the forward support of the Main Wing Outboard Flap (MWOF), caused by corrosion. This condition, if not corrected, may cause surface twisting during deployment at landing. The analysis of that event highlighted the need for the reduction of the previous inspection interval which was mandated by ENAC through AD 2004-523, approved by EASA with reference 2004-12521. Now the TC holder has developed a new type of forward support for the Main Wing Outboard Flap with characteristics that improve the resistance to corrosion. When the new support is installed, the repetitive Eddy current inspection that was introduced by EASA EAD 2006-0072-E is no longer required. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Piaggio Aero Industries S.p.A. has issued Mandatory Service Bulletin No. 80-0210, Rev. 4, dated July 19, 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 the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 16 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 $8,960, or $1,280 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: **Piaggio Aero Industries S.p.A.:** Docket No. FAA-2007-27723; Directorate Identifier 2007-CE-029-AD. Comments Due Date

(a)We must receive comments by May 24, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Model P-180 airplanes, serial numbers 1002, 1004 through 1107, 1109, and 1110, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 57: Wings. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: EASA EAD 2006-0072-E was issued on 31st March 2006 following a further failure of the forward support of the Main Wing Outboard Flap (MWOF), caused by corrosion. This condition, if not corrected, may cause surface twisting during deployment at landing. The analysis of that event highlighted the need for the reduction of the previous inspection interval which was mandated by ENAC through AD 2004-523, approved by EASA with reference 2004-12521. Now the TC holder has developed a new type of forward support for the Main Wing Outboard Flap with characteristics that improve the resistance to corrosion. When the new support is installed, the repetitive Eddy current inspection that was introduced by EASA EAD 2006-0072-E is no longer required. Actions and Compliance

(f)Unless already done, do the following actions:

(1)Within the next 200 hours time-in-service

(TIS)or 60 days after the effective date of this AD, whichever occurs first, replace the outboard flap track forward bushing and the outboard flap track forward support. Do the replacements using the Accomplishment Instructions detailed in Part A of Piaggio Aero Industries S.p.A. Mandatory Service Bulletin

(SB)No. 80-0210, Rev 4, dated July 19, 2006.

(2)At intervals not to exceed 1,500 hours TIS after doing the replacements required in paragraph (f)(1) of this AD, visually inspect the outboard flap track forward support for traces of any kind of corrosion and/or protective coat/finishing wear damage. Do the inspections using the Accomplishment Instructions detailed in Part B of Piaggio Aero Industries S.p.A. Mandatory SB No. 80-0210, Rev 4, dated July 19, 2006.

(3)Before further flight after each inspection required in paragraph (f)(2) of this AD in which any kind of corrosion or wear damage is found, contact the manufacturer for a repair scheme and incorporate the repair. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, Small Airplane Directorate, ATTN: Sarjapur Nagarajan, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4145; fax:

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI European Aviation Safety Agency

(EASA)AD No. 2006-0305, dated October 9, 2006; and Piaggio Aero Industries S.p.A. Mandatory Service Bulletin No. 80-0210, Rev 4, dated July 19, 2006, for related information. Issued in Kansas City, Missouri, on April 17, 2007. Charles L. Smalley, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7754 Filed 4-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27432; Directorate Identifier 2007-CE-017-AD] RIN 2120-AA64 Airworthiness Directives; SOCATA—Groupe AEROSPATIALE Model TB 9, TB 10, and TB 200 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: * * * a new life limit for engine and Nose Landing Gear

(NLG)mounts installed on EADS SOCATA TB 9, TB 10 and TB 200 airplanes, as defined in the updated Airworthiness Limitations Section

(ALS)of the relevant Aircraft Maintenance Manuals (AMM). 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 24, 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:* Go to *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: Albert J. Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4119; fax:

(NLG)mounts installed on EADS SOCATA TB 9, TB 10 and TB 200 airplanes, as defined in the updated Airworthiness Limitations Section

(ALS)of the relevant Aircraft Maintenance Manuals (AMM). The MCAI requires: * * * introduction of the new 10 000 Flight Hour life limit for engine and NLG mounts into the operator's maintenance program through the Revision 18 of the AMM. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information SOCATA—Groupe AEROSPATIALE has issued: • SOCATA TB 9 Model Maintenance Manual, Original version dated September 1991, Revision 18, dated September 2006; • SOCATA TB 10 Model Maintenance Manual, Original version dated September 1991, Revision 18, dated September 2006; and • SOCATA TB 200 Model Maintenance Manual, Original version dated September 1991, Revision 18, dated September 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 the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 146 products of U.S. registry. We also estimate that it would take about 0.5 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 $5,840, or $40 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: **SOCATA—Groupe AEROSPATIALE:** Docket No. FAA-2007-27432; Directorate Identifier 2007-CE-017-AD. Comments Due Date

(a)We must receive comments by May 24, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Model TB 9, TB 10, and TB 200 airplanes, all serial numbers, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 5: Time Limits. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: * * * a new life limit for engine and Nose Landing Gear

(NLG)mounts installed on EADS SOCATA TB 9, TB 10 and TB 200 airplanes, as defined in the updated Airworthiness Limitations Section

(ALS)of the relevant Aircraft Maintenance Manuals (AMM). Actions and Compliance

(f)Unless already done, within the next 30 days after the effective date of this AD, incorporate the life limits in the Airworthiness Limitations documents presented in paragraphs (f)(1), (f)(2), or (f)(3) of this AD into the FAA-approved maintenance program. This may be done by updating the Airworthiness Limitations Section of the Airplane Maintenance Manual

(AMM)and inserting the following applicable revision. The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may do this action. Make an entry in the aircraft records showing compliance with this portion of the AD following section 43.9 of the Federal Aviation Regulations (14 CFR 43.9).

(1)*For Model TB 9 airplanes:* Use SOCATA TB 9 Model Maintenance Manual, 04, Airworthiness Limitations, Original version dated September 1991, Revision 18, dated September 2006, or later revision that incorporates the same life limit for the engine mount and NLG mount as the above referenced Revision 18;

(2)*For Model TB 10 airplanes:* Use SOCATA TB 10 Model Maintenance Manual, 04, Airworthiness Limitations, Original version dated September 1991, Revision 18, dated September 2006, or later revision that incorporates the same life limit for the engine mount and NLG mount as the above referenced Revision 18; or

(3)*For Model TB 200 airplanes:* Use SOCATA TB 200 Model Maintenance Manual, 04, Airworthiness Limitations, Original version dated September 1991, Revision 18, dated September 2006, or later revision that incorporates the same life limit for the engine mount and NLG mount as the above referenced Revision 18. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, ATTN: Albert J. Mercado, Aerospace Safety Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4119; fax:

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et. seq.* ), the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI European Aviation Safety Agency

(EASA)AD No. 2007-0034, dated February 22, 2007; SOCATA TB 9 Model Maintenance Manual, 04, Airworthiness Limitations, Original version dated September 1991, Revision 18, dated September 2006; SOCATA TB 10 Model Maintenance Manual, 04, Airworthiness Limitations, Original version dated September 1991, Revision 18, dated September 2006; and SOCATA TB 200 Model Maintenance Manual, 04, Airworthiness Limitations, Original version dated September 1991, Revision 18, dated September 2006, for related information. Issued in Kansas City, Missouri, on April 17, 2007. Charles L. Smalley, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7756 Filed 4-23-07; 8:45 am] BILLING CODE 4910-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0093; FRL-8304-3] RIN 2060-AN10 National Emission Standards for Hazardous Air Pollutants: Surface Coating of Automobiles and Light-Duty Trucks; National Emission Standards for Hazardous Air Pollutants for Surface Coating of Plastic Parts and Products AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to amend the National Emission Standards for Hazardous Air Pollutants: Surface Coating of Automobiles and Light-Duty Trucks (Automobiles and Light-Duty Trucks NESHAP) to clarify the interaction between the Automobiles and Light-Duty Trucks NESHAP and the National Emission Standards for Hazardous Air Pollutants for Surface Coating of Plastic Parts and Products (Plastic Parts NESHAP), to clarify the meaning of certain regulatory provisions, and to correct certain errors identified in the regulatory text. EPA is also proposing to amend the Plastic Parts NESHAP to clarify that screen printing is not subject to that rule. DATES: *Comments.* Written comments must be received on or before May 24, 2007 unless a public hearing is requested by May 4, 2007. If a public hearing is requested, written comments must be received on or before June 8, 2007. *Public Hearing.* If anyone contacts EPA requesting to speak at a public hearing, a public hearing will be held on May 9, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2002-0093, by mail to Air and Radiation Docket (6102T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this **Federal Register** . We request that you also send a separate copy of each comment to the contact person listed below (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: For further information contact Mr. David Salman, EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), Research Triangle Park, NC 27711; telephone number

(919)541-0859; fax number

(919)541-0246; e-mail address: *salman.dave@epa.gov.* SUPPLEMENTARY INFORMATION: *Why is EPA issuing this proposed rule?* This document proposes to take action on the Automobiles and Light-Duty Trucks NESHAP and the Plastic Parts NESHAP. We are proposing to amend the Automobiles and Light-Duty Trucks NESHAP to clarify the interaction between the Automobiles and Light-Duty Trucks NESHAP and the Plastic Parts NESHAP, to clarify the meaning of certain regulatory provisions, and to correct certain errors identified in the regulatory text. We are also proposing to amend the Plastic Parts NESHAP to clarify that screen printing is not subject to that rule. We have published a parallel direct final rule in the “Rules and Regulations” section of this **Federal Register** because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment and no request for a public hearing on the parallel direct final rule, we will not take further action on this proposed rule. If we receive adverse comment on the direct final rule or a request for a public hearing, we will withdraw that rule and it will not take effect. In this instance, we would address all public comments in any subsequent final rule based on this proposed rule. If we receive adverse comment on a distinct provision of the direct final rule, we will publish a timely withdrawal in the **Federal Register** indicating which provisions we are withdrawing. The provisions that are not withdrawn will become effective on the date set out in the direct final rule, notwithstanding adverse comment on any other provision. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document. *Regulated Entities.* Categories and entities potentially regulated by this action include: Category NAICS * code Examples of potentially regulated entities Industry 336111 Automobile manufacturing. 336112 Light truck and utility vehicle manufacturing. 336211 Motor vehicle body manufacturing. 336120 Heavy duty truck manufacturing. 323113 Commercial screen printing. * North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria of the rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *Public Hearing.* Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Mr. David Salman, EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), Research Triangle Park, NC 27711, telephone number

(919)541-0859, e-mail address: *salman.dave@epa.gov,* at least 2 days in advance of the potential date of the public hearing. Persons interested in attending the public hearing must also call Mr. Salman to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed emission standards. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of today's proposal will also be available through the WWW. Following the Administrator's signature, a copy of this action will be posted on EPA's Technology Transfer Network

(TTN)policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg/.* The TTN at EPA's Web site provides information and technology exchange in various areas of air pollution control. Statutory and Executive Order Reviews For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of today's **Federal Register** . Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of today's proposed rule amendments on small entities, a small entity is defined as:

(1)A small business according to Small Business Administration size standards for companies identified by NAICS codes 336111 (automobile manufacturing) and 336112 (light truck and utility vehicle manufacturing) with 1,000 or fewer employees or by NAICS code 323113 (commercial screen printing) with 500 or fewer employees;

(2)a small governmental jurisdiction that is a government or a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Based on the above definition, there are no small entities presently engaged in automobile and light-duty truck surface coating. While there are small entities presently engaged in commercial screen printing, the proposed rule amendments would not impose any requirements on commercial screen printers. After considering the economic impacts of today's proposed rule amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This is based on the observation that the proposed rule affects no small entities since none are engaged in the surface coating of automobiles and light-duty trucks, and no requirements are imposed on commercial screen printers. We continue to be interested in the potential impacts of the proposed rule amendments on small entities and welcome comments on issues related to such impacts. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements. Dated: April 18, 2007. Stephen L. Johnson, Administrator. [FR Doc. E7-7758 Filed 4-23-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260 and 261 [EPA-HQ-RCRA-2002-0031-FRL-8303-8] RIN 2050-AG31 Revisions to the Definition of Solid Waste AGENCY: Environmental Protection Agency. ACTION: Supplemental proposed rule; extension of comment period. SUMMARY: The Environmental Protection Agency

(EPA)is announcing that the comment period to the supplemental proposed rule entitled Revisions to the Definition of Solid Waste published on March 26, 2007 (72 FR 14172) is being extended until June 25, 2007. In the supplemental proposal, EPA is requesting comment on revisions to the definition of solid waste which would exclude certain hazardous secondary materials from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA). We are also soliciting comment on regulatory factors to be used to determine whether recycling of hazardous secondary materials is legitimate. DATES: The comment period for this supplemental proposed rule is extended from the original closing date of May 25, 2007, to June 25, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2002-0031 by one of the following methods: *www.regulations.gov:* Follow the on-line instructions for submitting comments. *E-mail:* Comments may be sent by electronic mail (e-mail) to *RCRA-docket@epa.gov* , Attention Docket ID No. EPA-HQ-RCRA-2002-0031. *Fax:* Fax comments to: 202-566-0270, Attention Docket ID No. EPA-HQ-RCRA 2002-0031. *Mail:* Send comments to: OSWER Docket, EPA Docket Center, Mail Code 5305T, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-RCRA-2002-0031. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., Washington, DC 20503. *Hand delivery:* Deliver comments to: Environmental Protection Agency, EPA Docket Center, Room B102, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. EPA-HQ-RCRA-2002-0031. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID Number EPA-HQ-RCRA-2002-0031. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *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 *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the OSWER Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the OSWER Docket is

(202)566-0270. FOR FURTHER INFORMATION CONTACT: For more detailed information on specific aspects of this rulemaking, contact Marilyn Goode, Office of Solid Waste, Hazardous Waste Identification Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, (703-308-8800) ( *goode.marilyn@epa.gov* ) or Tracy Atagi, Office of Solid Waste, Hazardous Waste Identification Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, (703-308-8672) ( *atagi.tracy@epa.gov* ). SUPPLEMENTARY INFORMATION: A. *Comment Period.* We are extending the comment period by 30 days in response to requests from several stakeholders. B. *Regulated Entities.* Entities potentially affected by this action include about 4,600 facilities in 530 industries in 17 economic sectors that generate or recycle hazardous secondary materials which are currently regulated as RCRA Subtitle C hazardous wastes ( *e.g.* , industrial co-products, by-products, residues, unreacted feedstocks). About 80 percent of these affected facilities are classified in NAICS code economic sectors 31, 32, and 33 (manufacturing), and the remainder are in NAICS code economic sectors 21 (mining), 22 (utilities), 23 (construction), 42 (wholesale trade), 44 and 45 (retail trade), 48 and 49 (transportation), 51 (information), 54 (professional, scientific and technical services), 56 (administrative support, waste management and remediation), 61 (educational services), 62 (health care and social assistance, and 81 (other services). About 0.65 million tons per year of recyclable industrial materials handled by these entities may be affected, of which the most common types are metal-bearing hazardous secondary materials ( *e.g.* , sludges and spent catalysts), and organic chemical liquids. This proposed rule, if promulgated, is expected to result in regulatory and materials recovery cost savings to these industries of approximately $107 million per year. Taking into account impact estimation uncertainty factors, this rule, if promulgated, could affect between 0.3 to 1.7 million tons per year of industrial hazardous secondary materials handled by 3,600 to 5,400 entities in 460 to 570 industries, resulting in $93 million to $205 million per year of net cost savings. More detailed information on the potentially affected entities, industries, and industrial materials, as well as the economic impacts of this rule (with impact uncertainty factors), is presented in the “Economics Background Document” available in the docket for this rulemaking. C. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark all information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed, except in accordance with procedures set forth in 40 CFR part 2. List of Subjects 40 CFR Part 260 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Reporting and recordkeeping requirements. 40 CFR Part 261 Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements. Dated: April 13, 2007. Matt Hale, Director, Office of Solid Waste. [FR Doc. E7-7761 Filed 4-23-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Revised 12-Month Finding for Upper Missouri River Distinct Population Segment of Fluvial Arctic Grayling AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of revised 12-month finding. SUMMARY: We, the Fish and Wildlife Service (Service), announce our revised 12-month finding on a petition to list the upper Missouri River Distinct Population Segment

(DPS)of fluvial Arctic grayling ( *Thymallus arcticus* ) as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that fluvial Arctic grayling of the upper Missouri River does not constitute a species, subspecies, or distinct population segment under the Act. Therefore, we find that the petition to list the upper Missouri River DPS of fluvial Arctic grayling is not warranted, and we withdraw the fluvial Arctic grayling from the candidate list. The Service continues to seek new information on the taxonomy, biology, ecology, and status of fluvial Arctic grayling and to support cooperative conservation of fluvial Arctic grayling in the upper Missouri River system. DATES: This finding was made on April 24, 2007. ADDRESSES: The complete file for this finding is available for inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Montana Field Office, 585 Shepard Way, Helena, MT 59601; telephone

(406)449-5225. Submit new information, materials, comments, or questions concerning this species to us at this address (Attention: Arctic grayling). FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana Field Office, at the address and telephone listed above. SUPPLEMENTARY INFORMATION: Species Information Description The Arctic grayling ( *Thymallus arcticus* ) belongs to the family Salmonidae (salmon, trout, charr, whitefishes), subfamily Thymallinae (graylings), and is represented by a single genus, *Thymallus,* which contains three other recognized species in addition to *T. arcticus* (Scott and Crossman 1973, pp. 301-302; Behnke 2002, pp. 327-331). Arctic grayling have elongate, laterally compressed bodies with deeply forked tails, and adults typically average 254 to 330 millimeters (10 to 13 inches) in length. Coloration varies from silvery or iridescent blue and lavender, to dark blue (Behnke 2002, pp. 327-328). During the spawning period, the colors darken and the males become more brilliantly colored than the females. A prominent morphological feature of Arctic grayling is the sail-like dorsal fin, which is large and vividly colored with rows of orange to bright green spots, and often has an orange border. Dark spots are often evident on the body towards the head (Behnke 2002, pp. 327-328). Distribution Arctic grayling have a primarily holarctic distribution and are native to Arctic Ocean drainages of northwestern Canada and Alaska, from the Peace, Saskatchewan, and Athabasca River drainages in Alberta eastward to Hudson Bay and westward to the Bering Straits and eastern Siberia and northern Eurasia (Scott and Crossman 1973, pp. 301-302). Arctic grayling also are native to Pacific coast drainages of Alaska and Canada as far south as the Stikine River in British Columbia (Scott and Crossman 1973, pp. 301-302; Nelson and Paetz 1991, pp. 253-256; Behnke 2002, pp. 327-331). Arctic grayling generally occur throughout their native range though the species is extirpated in some locations (Michigan) and has experienced local range contraction in others (e.g., Peace-Willison watershed in British Columbia (Blackman et al. (1990, pp. 15, 17, 34), portions of Alberta (Alberta Sustainable Resource Development (2005; pp. iv, 5-18), and Montana). In North America, two populations of Arctic grayling, believed to have been isolated by Pleistocene glaciations, have been recorded outside of Canada and Alaska (Vincent 1962, pp. 23-31). One population was found in streams and rivers of the Great Lakes region of northern Michigan, but those grayling were extirpated in the 1930s (Hubbs and Lagler 1949, p. 44; Scott and Crossman 1973, p. 301). The second population historically inhabited watersheds in the upper Missouri River basin upstream of Great Falls, Montana (Figure 1). BILLING CODE 4310-55-P EP24AP07.000 Genetic data indicate Arctic grayling native to the Missouri River system were most likely isolated geographically from Hudson Bay and Arctic Ocean drainages by the onset of Wisconsin glaciation approximately 70,000 years ago (Redenbach and Taylor 1999, p. 32). Arctic grayling native to the upper Missouri River system are genetically diverged from Arctic grayling in the northern part of the species' range (Lynch and Vyse 1979, pp. 268-270, 275; Everett 1986, pp. 15-16, 79-80; Redenbach and Taylor 1999, pp. 23, 28-29, 32-33; reviewed by Leary 2005, pp. 1-3; reviewed by Campton 2006, pp. 5-6), and appear to be most closely related evolutionarily to populations in the Fond du Lac area of northeastern Saskatchewan, Canada (Stamford and Taylor 2004, p. 1538). Genetic divergence happens when two or more genetic characteristics that have occurred naturally over time are passed from one generation to subsequent generations. Arctic grayling in the upper Missouri River basin are commonly referred to as “Montana grayling” and have been variously categorized as a separate species ( *Thymallus montanas;* Scott and Crossman 1973, p. 301) or subspecies ( *T. arcticus montanus;* Williams et al. 1989, p. 4), but these designations are of uncertain validity (Scott and Crossman 1973, p. 301) and not widely accepted (Kaya 1990, pp. 3-4; Integrated Taxonomic Information System 2006). The lack of accepted subspecific designations is based on morphological similarity among disjunct populations (Kaya 1990, p. 4). Arctic grayling in the upper Missouri River basin currently represent the southern extent of the species' range (Scott and Crossman 1973, pp. 301-302), and both migratory, river-dwelling (fluvial) and lake-dwelling (adfluvial and lacustrine) populations are native to the upper Missouri River. For simplicity, the term “adfluvial” will be used to refer to all Arctic grayling populations associated with lakes or reservoirs. The migratory, stream- and river-dwelling form of Arctic grayling native to the upper Missouri River is hereafter referred to as “fluvial” Arctic grayling of the upper Missouri River. Arctic Grayling Distribution in the Upper Missouri River Basin Fluvial Arctic grayling reside in the Big Hole River and the lower reaches of connected tributaries (see Figure 1 above). Adfluvial Arctic grayling native to the upper Missouri River system are known to reside in the Red Rock Lakes system, in the upper reaches of the Beaverhead River within the Centennial Valley, Montana (Vincent 1962, p. 120; see Figure 1 above). An indigenous Arctic grayling population exhibiting adfluvial characteristics also is present in the Madison River upstream from Ennis Reservoir (see Figure 1 above). The adfluvial characteristics expressed by the Madison River-Ennis Reservoir population may reflect recent divergence away from the presumed ancestral fluvial form resulting from the construction of Ennis Dam (Kaya 1990, p. 33; Kaya 1992a, p. 53). A few adfluvial populations found in small lakes within the Big Hole River system (in particular Miner and Mussigbrod Lakes; see Figure 1 above) may be remnant native populations derived from fluvial Arctic grayling from the Big Hole River and isolated by recent habitat fragmentation, but widespread stocking of these and other locations with hatchery-reared Arctic grayling during the 1930s-1950s (e.g., Everett 1986, p. 4, 16; Kaya 1990, pp. 31, 75-80) also makes it possible that these fish are introduced populations or that the existing populations are a mixture of native and introduced Arctic grayling. Ecology Northcote

(1995)and Kaya

(1990)reviewed the ecology of Arctic grayling and fluvial Arctic grayling of the upper Missouri River, respectively. Much of the information on fluvial Arctic grayling in the upper Missouri River system comes from the Big Hole River, Montana (see Figure 1 above), which contains a fluvial population. Arctic grayling exhibit life history and migratory forms present in other species of inland trout and charr, including fluvial and adfluvial. Fluvial populations are characterized by a cycle of migratory behavior over their lifespan between spawning, feeding, and overwintering habitats within rivers or streams (Northcote 1995, pp. 156-160). Fluvial Arctic grayling typically migrate upstream to spawn in tributary or mainstem river locations and downstream to overwintering habitats. Such movement patterns have been observed in fluvial Arctic grayling in Big Hole River, Montana (Shepard and Oswald 1989, pp. 18, 27-28). Migrations to feeding habitats may occur if these locations differ from spawning or overwintering habitats (Kaya 1990, pp. 9-11). Overall, movements by fluvial populations within and among tributaries and mainstem rivers may cover hundreds of kilometers (Armstrong 1986, p. 7). Fluvial Arctic grayling in the Big Hole River system have been shown to migrate in excess of 80 km (50 mi) between spawning, feeding and wintering areas (Shepard and Oswald 1989, pp. 18, 21; Lamothe and Magee 2003, pp. 7, 11, 17). Adfluvial Arctic grayling feed and overwinter in lakes, but migrate to inlet or outlet streams to spawn (Northcote 1995, p. 148-149; Northcote 1997, pp. 1030-1034). Age at maturity and longevity in Arctic grayling varies among systems and is probably related to growth rate, with populations in colder, less productive habitats maturing at later ages and having a greater lifespan (Northcote 1995, pp. 155-157). Fluvial Arctic grayling in the Big Hole River system typically mature at 2 years of age (males) or 3 years of age (females), and individuals older than 6 years of age are rare (Liknes 1981, pp. 16-18; Kaya 1990, pp. 18-20; Magee and Lamothe 2003, p. 22). Arctic grayling are spring spawners. In Montana, Arctic grayling typically spawn from late April to mid-May by depositing adhesive eggs over gravel substrate without excavating a nest or redd (Shepard and Oswald 1989, pp. 24-25, 29; Kaya 1990, pp. 15-16). In general, the reproductive ecology of Arctic grayling is somewhat different from other salmonid species (trout and salmon) in that Arctic grayling eggs tend to be comparatively small (Behnke 2002, p. 328), and males establish and defend spawning territories rather than defending access to females (Northcote 1995, p. 150). The time required for development of eggs from embryo until they emerge from stream gravel and become swim-up fry varies with water temperature, but averages about 3 weeks for Arctic grayling in the upper Missouri River basin (Kaya 1990, pp. 16-17). Small, weakly swimming fry of fluvial Arctic grayling prefer low velocity stream habitats (Kaya 1990, pp. 23-24; Northcote 1995, pp. 152-153). Arctic grayling of all ages feed primarily on aquatic and terrestrial invertebrates captured on or near the water surface (Northcote 1995, pp. 153-154; Behnke 2002, p. 328). They also will feed opportunistically on fish and fish eggs (Northcote 1995, p. 154; Behnke 2002, p. 328). Feeding locations for individual fish are typically established and maintained through size-mediated dominance hierarchies (e.g., Hughes 1992, pp. 1994-1995). Although fluvial Arctic grayling may have specific habitat requirements depending on their life stage (e.g., fry) and ecological activity (e.g., spawning), individuals inhabiting streams and rivers often exhibit a preference for pool habitats (Liknes 1981, pp. 22, 28; Kaya 1990, pp. 20-21; Lamothe and Magee 2003, pp. 13-14, 17; Lamothe and Magee 2004, p. 24). Vincent (1962, pp. 39, 42) concluded that fluvial Arctic grayling in Montana typically reside in streams with low-to-moderate gradient (<4 percent) and prefer low-to-moderate water velocities (<60 centimeters/sec). Observations of fluvial Arctic grayling habitat use in the Big Hole River by Liknes (1981, p. 28) and Liknes and Gould (1987, p. 128) are consistent with these generalizations. Arctic grayling generally prefer cool or coldwater habitats (Hubert et al. 1985, pp. 9, 14, 25, 27). Selong et al. (2001, p. 1032) placed Arctic grayling in a “coldwater” group of salmonids, along with Arctic charr and bull trout, based on critical thermal maximum values. Genetic Relationships Among Arctic Grayling Populations in the Upper Missouri River Basin Discussion of genetic divergence among Arctic grayling populations is complicated by the extensive hatchery propagation and transplantation of stocks from location to location (Everett 1986, p. 40). Over 10 million grayling of unknown origin were stocked in the Big Hole River over a 30-year period from the 1930s to the 1950s (Kaya 1990, pp. 31, 75-80). Everett (1986 pp. 42, 43, 47) concluded that the effect of grayling introductions on local genetics appears stronger in lake populations than in the Big Hole River. Nonetheless, the limited available genetic data suggest the presence of two or more groups—clusters or sets of populations that are genetically more closely related to each other than they are to other populations of the same species—of Arctic grayling within the upper Missouri River that may not be strictly delineated by geography and life history (Leary 2005, p. 3; Campton 2006, pp. 6-9, 12). Inferences about genetic differences among Arctic grayling populations within the upper Missouri River basin are primarily based on data collected by Everett

(1986)and Leary (1990). These two studies examined how a particular form (allele) of a protein molecule (allozyme) varied in frequency across Arctic grayling populations in Montana. Allozymes are gene products coded by DNA, so allozyme variation can be used to infer genetic relationships among populations, subspecies or species. Campton (2006, pp. 6, 12), in his review of those data, suggested the existence of two possible genetic groups:

(a)A Big Hole-Madison River group that includes the fluvial population in the Big Hole River, certain populations in adjoining waters of the Big Hole River system (e.g., Bobcat, Miner, and Mussigbrod Lakes, and Steel Creek; see Figure 1 above; see Everett 1986, p. 7; Leary 1990, pp. 6-8), and fish from the Madison River-Ennis Reservoir; and

(b)a Red Rock Lakes group that includes native adfluvial populations from the Red Rock and Elk Lakes system in the upper Beaverhead River system, and a number of introduced adfluvial populations (Agnes, Grebe, Rogers, Odell, and Elizabeth Lakes; see Leary 1990, pp. 7-8) believed to be derived from human introductions of Red Rock Lakes grayling and/or associated hatchery stocks. The two groups (Big Hole-Madison and Red Rock Lakes) are differentiated by divergent allele frequencies for two allozymes (Campton 2006, p. 6). The relative genetic difference between these two groups within the upper Missouri River basin is less than the difference between upper Missouri River Arctic grayling and sample populations from Alaska and Canada (Everett 1986, p. 80; Leary 1990, pp. 1, 7-8). The level of genetic divergence observed among populations within the upper Missouri River is consistent with what would be expected for populations within a geographic area that share a recent ancestry but have since diverged, as compared with the greater divergence observed among populations from different geographic areas or river systems that have been separated from each other for a much longer period of time (i.e., upper Missouri River versus Alaskan and Canadian populations). Campton (2006, p. 12) also noted that a few adfluvial populations of Arctic grayling in the Big Hole River drainage, including Miner Lake (see Figure 1 above), appear to share recent ancestry with the mainstem Big Hole River fluvial population. Like Campton, Leary also concluded that Big Hole River and Madison River grayling samples appear to be quite similar (Leary 2005, p. 3). Leary's interpretation of the genetic relationships among Miner Lake, Red Rock Lakes, and Elk Lake populations was different from Campton's. Leary found Miner Lake to be very divergent from all the others, but also concluded that there was significant divergence between the Red Rock Lakes and Elk Lake samples (Leary 2005, p. 3). He interpreted the allozyme data to mean that the adfluvial samples do not appear to form a genetically distinct group and consequently concluded that the data do not support the premise that the fluvial and adfluvial life histories fall into two distinct genetic lineages (Leary 2005, p. 3). Rather, he contended the data represent divergence among populations regardless of life history (Leary 2005, p. 3). In his review, Campton

(2006)concurred that the apparent genetic divergence between the two groups (Big Hole-Madison River and Red Rock Lakes) was not completely consistent with life histories because several adfluvial populations belonged to the Big Hole River-Madison River genetic group. An Arctic grayling population residing in the Sunnyslope irrigation canal in Teton County, Montana, is thought to be derived from an introduction into Pishkin Reservoir (Kaya 1990, p. 41; see Figure 1 above) and is not easily assigned to either of the two genetic groups suggested by Campton. These fish appear to be genetic outliers relative to the two other native genetic groups of Arctic grayling (Leary 1990, p. 8; Campton 2006, p. 7). Overall, both Campton and Leary observe that:

(a)Fluvial Arctic grayling from the Big Hole River are genetically different from native adfluvial Arctic grayling in Red Rock Lakes based on observed differences in allozyme allele frequencies even if the genetic divergence between these populations appears to be low (average Nei's genetic distance of the cluster containing these populations equals 0.0132 (Leary 1990, pp. 1,8));

(b)the existing genetic data do not strongly support the hypothesis that the fluvial form of Arctic grayling in the upper Missouri River represents a unique genetic lineage, because it is genetically similar to adfluvial populations in Miner Lake and in the Madison River (Leary 2005, pp. 3-4; Campton 2006, p. 12); and

(c)the low allozyme variability in upper Missouri River Arctic grayling samples results in a weak dataset for resolving ancestries among recently diverged populations (Leary 2005, pp. 3-4; Campton 2006, p. 10). The Service views Campton's and Leary's conclusions about the ancestral relationships among Arctic grayling populations in the upper Missouri River as tentative, given the inherent limitations of the existing genetic data. However, it is the best available scientific information at this time. Further investigations with more variable genetic markers, such as microsatellite DNA, may clarify genetic relationships (Campton 2006, pp. 10, 14). Heritable, Behavioral Differences Between Fluvial and Adfluvial Arctic Grayling in the Upper Missouri River Basin Arctic grayling exhibit at least two life histories in the upper Missouri River system—a river-dwelling fluvial form and a lake-dwelling adfluvial form. Life history variation in salmonid fishes (trout and salmon) may or may not be related to genetic differentiation (e.g., Fausch and Young 1995, p. 365). However, experiments designed to determine whether behavioral differences were due to genetic or environmental influences found that the behavioral differences between fluvial and adfluvial Arctic grayling in Montana were heritable. In tests of swimming behavior of young-of-year Arctic grayling raised in common conditions in captivity, progeny of fluvial Big Hole River fish behaved significantly differently, on average, than adfluvial progeny from Red Rock Lakes and Madison River-Ennis Reservoir populations (Kaya 1989, 1991; Kaya and Jeanes 1995). The Big Hole River progeny exhibited a greater tendency to hold position in flowing water (Kaya and Jeanes 1995, pp. 453-456). Because the test fish from the Big Hole River population were progeny of parents reared in a non-fluvial environment, retention of this rheotactic behavior (behavior in response to flowing water) was taken as evidence that such behavior has a genetic (heritable) basis (Kaya and Jeanes 1995, p. 456), consistent with conclusions of previous investigations (Kaya 1989, pp. 474, 478-479; Kaya 1991, pp. 53, 55-58). Expression of rheotactic characteristics in Arctic grayling also can be influenced by ontogeny, or the developmental history of an individual (in this case, time from emergence from gravel as fry until maturity; Kaya 1991, pp. 53, 55-57), and environmental conditions, such as time of day (Kaya 1989, p. 56), light intensity (Kaya 1989, p. 478; Kaya 1991, p. 56), or water temperature (Kaya 1989, p. 478). However, the collective results are nonetheless consistent with the hypothesis that heritable, behavioral differences in the test populations exist between the fluvial and adfluvial populations and those associated with lakes or reservoirs. Adfluvial Arctic grayling repeatedly introduced into rivers have failed to establish viable populations (Kaya 1992b, pp. 12-14). Adaptive divergence and lack of ecological exchangeability between life history types are among the factors that may have contributed to these failures (Campton 2006, p. 13). However, introductions of fluvial grayling into other rivers within the native range have not been successful either, so success may be due to other factors (e.g., habitat degradation or competition with nonnative fish (Kaya 1992b, pp. 10-12, 60)). In general, life history expression in salmonid species can be flexible, and Arctic grayling exhibit variation in migratory behavior across the range of the species (Northcote 1997, p. 1030). Geography may be a stronger determinant of ancestral relationships than life history for Arctic grayling. Native Arctic grayling populations within the upper Missouri River basin may be similar based on genetics, because they reside in the same river basin and presumably share a recent evolutionary ancestry (Campton 2006, p. 12), while at the same time expressing different life histories in response to local habitat conditions. Previous Federal Action The Service initiated a status review for the Montana Arctic grayling ( *Thymallus arcticus montanus* ) through a notice of review published on December 30, 1982 (47 FR 58454). In that notice, Montana Arctic grayling was designated a Category 2 species, which included taxa for which information in possession of the Service at that time indicated that proposing to list the species as Endangered or Threatened was possibly appropriate, but for which substantial data were not currently available to biologically support a proposed rule (47 FR 58454). We received a petition, dated October 2, 1991, from the Biodiversity Legal Foundation and George Wuerthner on October 9, 1991. The petition requested that the “fluvial Arctic grayling” be listed as an endangered species throughout its historic range “in the conterminous United States.” We published a notice of a 90-day finding in the January 19, 1993, **Federal Register** (58 FR 4975). In that 90-day finding we found that the petitioners presented substantial information indicating that listing the fluvial Arctic grayling of the upper Missouri River, in Montana and northwestern Wyoming, may be warranted. We also found that because the Michigan population of Arctic grayling is extinct and, therefore, by definition cannot be listed, the finding would address only the fluvial population of the Arctic grayling in the upper Missouri River drainage. On July 25, 1994, we published a notice of a 12-month petition finding in the **Federal Register** concluding that listing the fluvial Arctic grayling indigenous to the upper Missouri River was warranted but precluded by other higher priority listing actions (59 FR 37738). This finding stated that the Service viewed adfluvial Arctic grayling as not under consideration in the Service's finding as it was believed to be a distinct population from the fluvial Arctic grayling. This 1994 status review identified the fluvial form of Arctic grayling in the upper Missouri River drainage as a DPS based on its geographic isolation and behavioral distinctiveness (59 FR 37738-37741, July 25, 1994). This status review occurred prior to the finalization of the Service and the National Marine Fisheries Service's joint DPS policy in 1996 (61 FR 4722, February 7, 1996). Since 1994, and based on the best available information and the assessment that we conduct during our candidate review process, we have continued to preliminarily recognize the fluvial Arctic grayling of the upper Missouri River as a DPS, and has maintained it as a candidate species through the annual Candidate Notice of Review. In 2004, the Service elevated the listing priority number of the fluvial Arctic grayling to 3 (69 FR 24881, May 4, 2004) because the abundance of the remnant population in the Big Hole River declined substantially and reestablishment efforts had not yet produced self-sustaining populations elsewhere in the upper Missouri River. On May 31, 2003, the Center for Biological Diversity and Western Watersheds Project (collectively plaintiffs) filed a complaint in United States District Court in Washington, DC (1:03-cv-01110), challenging the Service's continuing “warranted but precluded” determination for fluvial Arctic grayling contained in the 2002 Candidate Notice of Review (67 FR 40657, June 13, 2002). Plaintiffs filed an amended complaint on July 22, 2004, challenging the Service's failure to use its emergency listing authority to protect the fluvial Arctic grayling under the Act (16 U.S.C. 1531 et seq.). The litigation with plaintiffs was settled in August 2005. In this settlement agreement, the Service agreed that on or before April 16, 2007, it shall submit for publication in the **Federal Register** a final determination made pursuant to the Act as to whether or not the “Montana fluvial Arctic grayling” is an endangered or threatened species. During the evaluation of the petition, the Service considered the term “Montana fluvial Arctic grayling” as synonymous with “fluvial Arctic grayling of the upper Missouri River.” In this finding, as in the past, the fluvial form of the indigenous Arctic grayling from the upper Missouri River drainage in Montana and Wyoming is referred to as the fluvial Arctic grayling. This revised 12-month finding is being published as a final listing determination in accordance with the settlement agreement. Distinct Vertebrate Population Segment Pursuant to the Act, we must consider for listing any species, subspecies, or, for vertebrates, any DPS of these taxa if there is sufficient information to indicate that such action may be warranted. The petition we received concerns a potential DPS of fluvial Arctic grayling. Under our Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722, February 7, 1996) (known as the DPS Policy), three elements are considered in a decision regarding the status of a possible DPS as endangered or threatened under the Act. These factors are applied similarly for additions to the Lists of Endangered and Threatened Wildlife and Plants (Lists), reclassification, and removal from the Lists. They are:

(1)Discreteness of the population segment in relation to the remainder of the species to which it belongs;

(2)the significance of the population segment to the species to which it belongs; and

(3)the population segment's conservation status in relation to the Act's standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened?). Discreteness refers to the isolation of a population from other members of the species, and we evaluate this based on specific criteria that are also contained in the DPS Policy and are listed below. If the population segment is determined to be discrete, then we evaluate significance by using the available scientific information to determine the population segment's importance to the taxon to which it belongs. If we determine that a population segment is discrete and significant, we subsequently evaluate it for endangered or threatened status based on the Act's standards. Discreteness Under our DPS Policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:

(1)It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or

(2)It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. The subject of this DPS evaluation is the fluvial Arctic grayling of the upper Missouri River. In response to a petition, the fluvial Arctic grayling was the subject of a status review by the Service in 1994, which identified Arctic grayling indigenous to the Big Hole and Madison Rivers as elements of a fluvial DPS in the upper Missouri River (59 FR 37738-37741, July 25, 1994). However, this status review occurred prior to the finalization of the Service and the National Marine Fisheries Service's joint DPS policy in 1996 (61 FR 4722, February 7, 1996). Since 1994, and most recently in 2004 and 2005, the Service reviewed the available information concerning the taxonomic status of the species in relation to the DPS policy and again preliminarily determined that the fluvial Arctic grayling of the upper Missouri River was a valid DPS (Service 2004, 2005). This DPS evaluation considers the information used in the previous assessments as well as a solicited review (Campton 2006) and unsolicited review (Leary 2005) of the available genetic data for Arctic grayling in Montana.

(1)Fluvial Arctic Grayling Are Discrete as a Consequence of Physical Features Fluvial arctic grayling native to the upper Missouri River are “markedly separated” from other grayling, both those in Canada and Alaska, and from the adfluvial form in the Missouri River drainage because of physical and reproductive isolation. Fluvial actic grayling are geographically disjunct and reproductively isolated from populations inhabiting Arctic Ocean and Hudson Bay drainages in Canada and Alaska (Scott and Crossman 1973, p. 301). Arctic grayling in the upper Missouri River are reproductively isolated from their nearest conspecifics by at least 800 kilometers

(km)(500 miles (mi)) (Nelson and Paetz 1991, p. 255) and have been separated from Arctic Ocean populations for perhaps 70,000 years as a result of glacial activity (Lynch and Vyse 1979, p. 263; Redenbach and Taylor 1999, p. 32). This long period of reproductive isolation coupled with genetic drift and environmental selection pressures has resulted in genetic differences between Arctic grayling from the Missouri River and elsewhere based on analyses of allozymes and mitochondrial DNA (Lynch and Vyse 1979, pp. 263, 268, 275; Everett and Allendorf 1985, pp. 22-23, 26; Everett 1986, pp. 79-80; Redenbach and Taylor 1999, p. 23; reviewed by Campton 2006, pp. 5-6; reviewed by Leary 2005, pp. 1-3). Fluvial and adfluvial Arctic grayling within the upper Missouri River basin are “markedly separated” from each other as a result of physical features. The fluvial form was once widespread in the upper Missouri River basin, but the adfluvial form was native only to the Red Rocks Lakes and possible Elk Lake in the headwaters of the Beaverhead River (Kaya 1990). Extant populations of native fluvial and adfluvial Arctic grayling within the upper Missouri River are reproductively isolated, and the available genetic data are consistent with the hypothesis of two genetic groups of Arctic grayling (the Big Hole—Madison River and Red Rock Lakes genetic groups) within the upper Missouri River (Leary 2005, p. 3; Campton 2006, pp. 6-9, 12)

(2)Fluvial Arctic Grayling Are Not Discrete as a Consequence of Physiological Features We do not believe that fluvial Arctic grayling are discrete because of unique or different physiological characteristics. Lohr et al.

(1996)examined the thermal tolerance of juvenile fluvial Arctic grayling from the Big Hole River to elevated temperatures in laboratory tests. However, grayling from the Big Hole River did not appear to be more tolerant of warm stream temperatures than grayling from Alaska (Lohr et al. 1996, p. 937). Arctic grayling from the upper Missouri River tend to grow more quickly than individuals from northern populations (Northcote 1995, pp. 156-157). However, experimental data are lacking that permit these differences to be attributed to environmental versus genetic influences.

(3)Fluvial Arctic Grayling Are Not Discrete as a Consequence of Ecological Features The Arctic grayling of the upper Missouri River represent the only natural example of the taxon inhabiting an Atlantic Ocean drainage (via the Missouri and Mississippi Rivers and Gulf of Mexico). All other wild populations of Arctic grayling inhabit drainages of the Arctic Ocean, Hudson Bay, or north Pacific Ocean (USFWS 2005, p. 10). However, fluvial Arctic grayling of the upper Missouri River basin are not discrete from adfluvial Arctic grayling of the upper Missouri River basin as a consequence of ecological features as they exist within a common drainage.

(4)Fluvial Arctic Grayling Are Discrete as a Consequence of Behavioral Features Under historical conditions within the upper Missouri River basin, native fluvial and adfluvial populations of Arctic grayling spawned in different locations (Vincent 1962, pp. 98-121; Kaya 1990, pp. 24-30; Kaya 1992a, pp. 47-53). Homing behavior to natal (birth) habitats that is typically expressed by Arctic grayling (e.g., Carl et al. 1992, p. 245) would presumably result in the reproductive isolation of historical fluvial and adfluvial populations even if occasional exchange was possible. In addition, genetic differences between the extant fluvial population in the Big Hole River and the native adfluvial population in Red Rock Lakes (e.g., Everett 1986, pp. 79-30; Leary 1990, pp. 7-8) are consistent with reproductive isolation between those populations based on observed differences in allozyme allele frequencies. Fluvial and adfluvial Arctic grayling do not appear to represent distinct lineages based strictly on life histories within the upper Missouri River system (e.g., Leary 2005, p. 3; Campton 2006, p. 12); there are clearly some heritable differences in juvenile swimming behavior among fluvial Arctic grayling and the native adfluvial populations in terms of rheotactic response to flowing water (Kaya 1989, pp. 474, 478-479; Kaya 1991, pp. 53, 55-58; Kaya and Jeanes 1995, pp. 453-456). These differences in behavior are sufficient to satisfy the discreteness criterion of the DPS policy. On the basis of the available information, we conclude that the fluvial Arctic grayling of the upper Missouri River drainage is discrete from other populations of the same taxon as a consequence of physical and behavioral factors. Since a population segment of a vertebrate species may be considered discrete if the first factor is met (marked separateness), we need not address the second factor (delimitation by an international boundary). Therefore, we considered the potential significance of this discrete population to the remainder of the taxon. Significance If a population segment is determined to be discrete, the Service considers the available scientific evidence of its significance to the taxon to which it belongs. Our policy states that this consideration may include, but is not limited to, the following:

(1)Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon;

(2)Evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon;

(3)Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or

(4)Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. A population segment needs to satisfy only one of these criteria to be considered significant. Furthermore, the list of criteria is not exhaustive; other criteria may be used, as appropriate.

(1)Fluvial Arctic Grayling Do Not Persist in an Ecological Setting Unusual or Unique for the Taxon As discussed above, Arctic grayling generally occur throughout their native range in the holarctic region of Canada and Alaska to eastern Siberia and northern Eurasia (Scott and Crossman 1973, pp. 301-302). In our 2005 candidate assessment, we asserted that the fluvial Arctic grayling of the upper Missouri River persist in an ecological setting unusual or unique for the taxon as they represent the only natural example of the taxon inhabiting an Atlantic Ocean drainage via the Missouri and Mississippi Rivers and Gulf of Mexico. We noted that all other wild populations of Arctic grayling inhabit drainages of the Arctic Ocean, Hudson Bay, or north Pacific Ocean (USFWS 2005, p. 10). However, as established above, we now note that adfluvial Arctic grayling also persist in the upper Missouri River drainage. Our prior finding did not take these fish into account in its discussion of ecological setting. Because both the fluvial and adfluvial forms are found in the upper Missouri drainage, we cannot find that the population persists in an ecological setting unique or unusual to the taxon as a whole. Further, existence of the species in a different drainage, or different rivers and lakes, from those grayling found in Canada and Alaska is not necessarily evidence of a unique ecological setting. Arctic grayling in the neararctic region are found in the same habitat type as those in Montana. Grayling inhabit clear water streams, rivers, and lakes. Riverine populations depend on large streams, deep pools of small streams, or spring-fed reaches that are not completely frozen in winter for overwinter survival. Populations not associated with lakes are found in both Alaska and Montana (Hubert 1985, p. 1). For this reason also, we find that fluvial Arctic grayling do not persist in an ecological setting unique or unusual for the taxon.

(2)The Loss of the Fluvial Arctic Grayling Would Not Result in a Significant Gap in the Range of the Taxon Loss of the fluvial Arctic grayling in the upper Missouri River, when considered in relation to grayling throughout the remainder of the nearctic region, would mean the loss of a small percentage of the entire range of the taxon. Due to the broad geographic range of Arctic grayling, the gap in the range of Arctic grayling resulting from the loss of fluvial Arctic grayling in the upper Missouri River basin would not result in a significant gap in the range of the taxon as a whole. In our 2005 candidate assessment, we asserted that the loss of the fluvial Arctic grayling of the upper Missouri River would result in a significant gap in the range of the taxon as these fish are the only extant fluvial grayling population in the contiguous United States and represent the southernmost extent of the species (USFWS 2005, p. 10). However, the Ninth Circuit Court has rejected this argument as a misconstruction of this criterion in the case of *National Association of Home Builders* v. *Norton,* 340 F. 3d 835, 852 (9th Cir. 2003) concerning the cactus ferruginous pygmy-owl ( *Glaucidium brasilianum cactorum* ) (70 FR 44551, August 3, 2005). The Court found that in designating a DPS under the DPS policy, we must find that a discrete population is significant to the taxon as a whole, not to the United States. Therefore, we have determined, based on the information available to the Service, the loss of the fluvial Arctic grayling in the upper Missouri River would not result in a significant gap in the range of the species on the basis of the significance of the Montana population to the species as a whole.

(3)Fluvial Arctic Grayling Do Not Represent the Only Surviving Natural Occurrence of the Taxon This criterion from the DPS policy does not apply to the fluvial Arctic grayling in the upper Missouri River because it is clearly not a population segment representing the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range. Consequently, this population of grayling is not significant according to this standard.

(4)Fluvial Arctic Grayling in the Missouri River Drainage Do Not Differ Markedly in Genetic Characteristics From Adfluvial Populations in the Missouri River Drainage As noted above, analyses of allozymes and mitochondrial DNA show genetic divergence between Arctic grayling in the upper Missouri River and Arctic grayling in Canada and Alaska (Lynch and Vyse 1979, pp. 263, 268, 275; Everett and Allendorf 1985, pp. 22-23, 26; Everett 1986, pp. 79-80; Redenbach and Taylor 1999, p. 23; reviewed by Campton 2006, pp. 5-6; reviewed by Leary 2005, pp. 1-3) and appear to be most closely related evolutionarily to populations in northeastern Saskatchewan, Canada (Stamford and Taylor 2004, p. 1538). In addition, fluvial Arctic grayling from the Big Hole River are genetically different from native adfluvial Arctic grayling in Red Rock Lakes based on observed differences in allozyme allele frequencies (Campton 2006, p. 6). However, the relative genetic difference between these two groups within the upper Missouri River basin is less than that between upper Missouri River Arctic grayling and sample populations from Alaska and Canada (Leary 1990, pp. 1, 7-8). Resolving ancestries among recently diverged upper Missouri River Arctic grayling populations is difficult due to the low allozyme variability among samples (Leary 2005, pp. 3-4; Campton 2006, p. 10). In this case, although allozyme data from 39 loci are available from these populations, only 2 of the loci analyzed were generally variable among them (Everett 1986; Leary 1990; Leary 2005, p. 3). Information from only two loci may cause chance similarities or differences and require cautious interpretation (Leary 2005, p. 3). Likewise, the paucity of genetic variation detected by Redenbach and Taylor (1999, p. 27) in their restriction enzyme analysis of *mt* DNA of upper Missouri River basin Arctic grayling precludes making any inferences about genetic similarities or differences among the upper Missouri River populations sampled except that they all appear to share a common maternal lineage (Leary 2005, p. 4). The level of genetic divergence observed among populations within the upper Missouri River is consistent with what would be expected for populations within a geographic area that share a recent ancestry (Campton 2006, p. 12). Discerning genetic divergence among Arctic grayling populations is further complicated by the extensive hatchery propagation and transplantation of stocks, as discussed above (Everett 1986, p. 40). The Service does not regard the introduced, lake-dwelling grayling to be part of the indigenous upper Missouri River fluvial Arctic grayling population (59 FR 37739, July 25, 1994). However, widespread stocking of hatchery-reared Arctic grayling in the Big Hole River system and other locations (e.g., Everett 1986, pp. 4, 16; Kaya 1990, pp. 31, 75-80) makes it possible that some fish are introduced populations or that the existing populations are a mixture of native and introduced Arctic grayling. We find that, based on the genetic information currently available, the fluvial Arctic grayling of the upper Missouri River drainage do not differ markedly from adfluvial populations of the species in their genetic characteristics such that they should be considered biologically or ecologically significant based simply on genetic characteristics. Biological and ecological significance under the DPS policy is always considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. Conclusion on DPS Under section 3 of the Act and our implementing regulations at 50 CFR 424.02, a “species” is defined to include any species or subspecies of fish, wildlife, or plant, and any distinct population segment of any vertebrate species which interbreeds when mature. Our implementing regulations provide further guidance on determining whether a particular taxon or population is a species or subspecies for the purposes of the Act: “The Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group” (50 CFR 424.11). As noted above, Arctic grayling in the upper Missouri River basin have been classified into separate species and subspecies, but these designations are not widely accepted. Therefore, we do not consider the subject of this petition to constitute a distinct species or subspecies. The 1994 status review identified the fluvial form of Arctic grayling in the upper Missouri River drainage as a DPS based on its geographic isolation and behavioral distinctiveness (59 FR 37738, July 25, 1994). On the basis of the best available information, we continue to conclude that the fluvial Arctic grayling of the upper Missouri River drainage is “markedly separated” from all other populations of the same taxon as a consequence of physical and behavioral factors. Consequently, the Service concludes that the petitioned entity is discrete according to the 1996 DPS policy. However, on the basis of the four significance criteria in the 1996 DPS Policy, the Service is unable to conclude at this time that the petitioned entity is significant. Therefore, we find that the fluvial Arctic grayling of the upper Missouri River does not qualify as a distinct population segment under the Act. Significant Portion of the Range Pursuant to the Act and our implementing regulations, a species may warrant listing if it is threatened or endangered in a significant portion of its range. However, the petition did not request that we determine whether the grayling was threatened or endangered in a significant portion of its range. Rather, it asked that we list the fluvial Arctic grayling in the U.S. as an endangered species. Consistent with the petition, our previous petition findings have uniformly addressed possible listing in the context of whether the fluvial Arctic grayling in Montana constitutes a DPS, and therefore a “species” under the Act. As discussed above, we have now determined that the fluvial Arctic grayling is not a DPS. Thus, we have disposed of the question raised by the petition: we have no obligation under the Act to address the separate question of whether the fluvial Arctic grayling in Montana constitutes a significant portion of the range of some of the entire grayling species, or some valid but currently undefined DPS. If the Service determines in the future that the grayling is threatened or endangered in a significant portion of its range, we will add the species to the candidate list and propose its listing. However, that would be a future action. Because the petition and our prior finding were with respect to a DPS, and we have found that there is not a valid DPS, we do not need to address significant portion of the range at this time. Finding On the basis of the discussion presented in this document, we find that the fluvial Arctic grayling of the upper Missouri River does not qualify as a distinct population segment. As a result, we find that the petition to list the fluvial Arctic grayling of the upper Missouri River is not warranted. Based on this determination, we withdraw the fluvial Arctic grayling of the upper Missouri River from the candidate list. Although no further action will result from this finding, we request that you submit new information concerning the taxonomy, biology, ecology, and status of the Arctic grayling of the upper Missouri River system to the Montana Field Office (see ADDRESSES below) whenever it becomes available. We will accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding; and will reconsider this determination in the event of new information as appropriate. The Service continues to strongly encourage cooperative conservation and restoration of fluvial Arctic grayling in the upper Missouri River. References A complete list of all references cited herein is available upon request from the Montana Field Office, U.S. Fish and Wildlife Service (see ADDRESSES ). Author The authors of this finding are biologists in Region 6 of the U.S. Fish and Wildlife Service. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: April 13, 2007. H. Dale Hall, Director, Fish and Wildlife Service. [FR Doc. E7-7484 Filed 4-23-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070409081-7081-01; I.D. 032907A] RIN 0648-AS22 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan; Amendment 14 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 Amendment 14 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan

(FMP)developed by the Mid-Atlantic Fishery Management Council (Council). The proposed measures include a plan to rebuild the scup stock from an overfished condition to the level associated with maximum sustainable yield, as required by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This action also proposes to allow the regulations concerning the Gear Restricted Areas

(GRAs)to be modified through framework adjustments to the FMP. The intended effect of this change would improve the timing of developing and implementing modifications to the GRAs. DATES: Comments must be received by 5 p.m. local time, on May 24, 2007. ADDRESSES: You may submit comments by any of the following methods: • E-mail: *FSBAmendment14Proposed Rule@noaa.gov* . Include in the subject line the following identifier: “Comments on Amendment 14 Proposed Rule (Scup Rebuilding Plan).” • Federal e-rulemaking portal: *http:/www.regulations.gov* • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Amendment 14 Proposed Rule (Scup Rebuilding Plan).” • Fax:

(978)281-9135 Copies of Amendment 14 and of the draft Environmental Assessment, preliminary Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790. The EA/RIR/IRFA is also accessible via the Internet at *http://www.nero.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Michael P. Ruccio, Fishery Policy Analyst,

(978)281-9104. SUPPLEMENTARY INFORMATION: On August 18, 2005, NMFS notified the Council that the scup ( *Stenotomus chrysops* ) stock had been designated as overfished and that, within 1 year of that notice, an amendment or proposed regulations for the scup fishery to end overfishing and to rebuild the stock must be prepared in accordance with the Magnuson-Stevens Act. In response, the Council has developed, and submitted for Secretarial review, Amendment 14 to propose two actions:

(1)A 7-year plan to rebuild the scup stock from an overfished condition to a level associated with maximum sustained yield (B msy ), as required by the Magnuson-Stevens Act; and

(2)an administrative change to the regulations on framework adjustments. Background The scup stock was determined to be overfished in 1998 when the Sustainable Fisheries Act

(SFA)amendments to the Magnuson-Stevens Act were implemented. The Council developed and proposed Amendment 12 (64 FR 16891, April 7, 1999) to rebuild the scup stock in accordance with the provisions outlined in the SFA. The Council proposed in Amendment 12 that the management measures in place to rebuild the scup fishery, established by Amendment 8, were adequate under SFA guidelines. NMFS disagreed, and the rebuilding plan proposed in Amendment 12 was disapproved on April 28, 1999. Following the disapproval, the management measures previously implemented by Amendment 8 remained in place for the scup fishery. In years subsequent to the disapproval of Amendment 12, the scup stock exhibited signs of recovery. The Northeast Fisheries Science Center (NEFSC) spring survey index 3-year average value for 2001-2003 indicated that scup spawning stock biomass

(SSB)had increased to 3.31 kg/tow, above the minimum biomass threshold (1/2 B msy ) of 2.77 kg/tow. The scup stock was no longer considered overfished, although the 35 th Stock Assessment Review Committee (SARC 35) indicated that the status of the stock with respect to overfishing could not be evaluated. Although the condition of the scup stock was improving, the stock had not yet been rebuilt, as required by the Magnuson-Stevens Act, to the B msy proxy rebuilding target of 5.54 kg/tow. In 2005, the NEFSC 3-year SSB index value decreased to 0.69 kg/tow, indicating that the stock was again below the minimum biomass threshold (1/2 B msy ) and considered overfished. NMFS formally notified the Council of the overfished status of the scup stock, thus initiating the Magnuson-Stevens Act requirement that the Council develop regulations or an amendment to the FMP to rebuild the scup stock to the B msy proxy level. The rebuilding plan implemented by such regulations or amendment must achieve the rebuilding target within 10 years to comply with the Magnuson-Stevens Act. In response, the Council has developed, and submitted for Secretarial review, Amendment 14. Proposed Scup Rebuilding Plan Under Amendment 14, a constant fishing mortality rate

(F)of 0.10 would be applied each year during a 7-year rebuilding time period. Under this approach, the NEFSC 3-year SSB index value for the rebuilding period ending December 31, 2014, is projected to be 5.96 kg/tow, approximately 8 percent above the B msy proxy rebuilding target (5.54 kg/tow). Applying a constant F=0.10 for 7 years is projected to achieve the required stock rebuilding to comply with the Magunuson-Stevens Act; however, because scup is a relatively data poor stock and uncertainty exists around estimates of fishing mortality, stock size, and discards, Amendment 14 contains additional criteria to be applied to the rebuilding program, as follows: 1. As improvements to the available data occur over the 7-year rebuilding period, the rebuilding trajectory may change. Therefore, to ensure stock rebuilding, a periodic review will be conducted by the Council's scientific advisors to re-evaluate the F necessary to rebuild the stock. If the Council's scientific advisors determine the stock cannot be rebuilt within the time remaining in the initial 7-year time frame under an F=0.10, then the Council will recommend measures to rebuild the stock as soon as possible after the 7 years, but not to exceed the 10-year time frame specified in the Magnuson-Stevens Act for rebuilding periods. The periodicity of such a review is not specified in Amendment 14; however, it is expected that such reviews will be at the discretion of the Council and will occur as new data are made available, as early in the rebuilding period as possible, so that changes to the F rate, as needed, may be made. 2. The scup biological reference points (stock status determination criteria) would be reviewed after the Fishery Survey Vessel

(FSV)*Henry B. Bigelow* has completed 2 full years of service. 3. If a scup stock assessment that results in a change to the biological reference points is completed before the end of the 7-year rebuilding time period, the Council may reconsider the rebuilding targets. The additional criteria for the rebuilding program contained in Amendment 14 are designed to allow for some degree of flexibility within the specified rebuilding period, while still satisfying the requirements of the Magnuson-Stevens Act, given the considerable scientific uncertainty regarding the status of the scup stock. The intent of the additional criteria is to ensure that certain parameters of the rebuilding program can be revisited in advance of the end of the rebuilding time frame. This may help mitigate the need for severely restrictive measures in the rebuilding plan's final years, should scientific advice or stock status information change during the course of the 7-year rebuilding plan and/or the scup stock fail to respond to the rebuilding efforts as anticipated and fall behind the rebuilding schedule. Amendment 14 has a target implementation date of January 1, 2008, for the start of the rebuilding program. A final rule for Amendment 14 is anticipated to be published in the **Federal Register** prior to August 2007, with delayed effectiveness until January 1, 2008, so that the 2008 scup specifications would be set consistent with the proposed rebuilding program. Proposed GRA Modification Process GRAs were first implemented on May 24, 2000 (65 FR 33486), in conjunction with the annual specifications for the summer flounder, scup, and black sea bass fisheries. The intent of the GRAs has been to reduce discards of scup in small-mesh fisheries, primarily for *Loligo* squid, black sea bass, and silver hake. Because of the manner in which they were initially implemented, the GRAs could only be modified through the annual specification process or through an amendment to the FMP. Amendment 14 proposes an administrative change to add the GRAs to the list of management measures that can be changed through a framework adjustment to the FMP. As such, the Council would develop and analyze changes to the GRAs over the span of at least two Council meetings before making a recommendation to NMFS. This change is intended to allow for improved timing of developing and implementing proposed modifications to the GRAs. Amendment 14 proposes no specific changes to the existing GRAs. Notice of Availability

(NOA)and Public Comment on Amendment 14 A NOA indicating Amendment 14's availability for public review and comment published in the **Federal Register** on April 11, 2007, 72 FR 18193. Public comments are being solicited on Amendment 14 and its incorporated documents through the comment period ending June 11, 2007, as stated in the NOA. Public comments on this proposed rule must be received by the end of the comment period on Amendment 14, as published in the NOA, to be considered in the approval/disapproval of the Amendment 14. All comments received by the end of the NOA comment period for Amendment 14, whether specifically directed to the amendment or this proposed rule, will be considered in the approval/disapproval decision. Comments received after the end of the NOA comment period will not be considered in the approval/disapproval decision on Amendment 14, but will be considered as comments on this proposed rule. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date. Classification At this time, NMFS has not determined that the FMP amendment that this proposed rule would implement 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. A notice of availability of the Draft EA/RIR/IRFA, which analyzed the impacts of all of the measures under consideration in Amendment 14, was published on April 11, 2007, (72 FR 18193). This proposed rule has been determined to be not significant for purposes of Executive Order 12866. An IRFA was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the reasons why the action is being considered, the associated objectives of the proposed action, and the legal basis for this action are contained in the SUMMARY section of the preamble of this proposed rule. A summary of the analysis follows. A copy of the complete IRFA is available from the Council (see ADDRESSES ). This proposed rule does not duplicate, overlap, or conflict with any relevant Federal rules. There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. Description of Small Entities to Which the Proposed Rule Will Apply The proposed action regarding scup rebuilding alternatives could affect any vessel issued a Federal permit for scup, as well as vessels that fish for scup in state waters. The GRA alternatives proposed are purely administrative in nature and, therefore, are not expected to impact scup fishery participants in state or Federal waters. The Small Business Administration

(SBA)defines a small business in the commercial fishing and recreational fishing activity as a firm with receipts (gross revenues) of up to $4.0 and $6.5 million, respectively. The proposed measures regarding the scup rebuilding alternatives could affect any vessel holding an active Federal permit for scup, as well as vessels that fish for this species in state waters. Data from the Northeast permit application database show that, in 2005, the most recent year for which there are complete data, 1,511 vessels were permitted to take part in the scup fisheries (both commercial and charter/party sectors). All vessels that would be impacted by this proposed rulemaking are considered to be small entities; therefore, there would be no disproportionate impacts between large and small entities. Since all permit holders do not actually land scup, the more immediate impact of the rule may be felt by the 428 vessels that are actively participating in this fishery (i.e., that landed 1 lb (0.45 kg) or more of scup in 2005). Description of Alternatives The Council proposed seven rebuilding plan alternatives and the no-action (i.e., status quo) alternative. Of these, two alternatives could be expected to have less of an economic impact on small entities than the proposed action. A summary of these alternatives can be found in Table 1, and as follows, including the reasons for selecting the preferred alternative instead of one of the two alternatives with a lower economic impact to small entities. EP24AP07.005 The no-action alternative, designated 1A, would not implement a rebuilding plan or time frame for rebuilding the scup stock. The current F target of F=0.26 would be maintained, resulting in the least restrictive quotas. Under the no action alternative (1A), the scup stock is not projected to ever achieve the rebuilding target; therefore, the status quo alternative would not achieve stock rebuilding and is therefore contrary to the requirements of the Magnuson-Stevens Act. Alternatives 1B through 1E consist of rebuilding strategies wherein a specified constant F is applied over a 10, 7, 5, or 4-yr period, respectively. The F rate applied under these four alternatives is highest (i.e., less restrictive) for alternative 1B and decreases (i.e., becomes more restrictive) in alternatives 1C and 1D. The rebuilding program proposed by alternative 1B is less restrictive than the Council's preferred alternative, 1C. Alternative 1B was not selected as the preferred alternative because it utilizes the full 10-year rebuilding period and does not allow for the ongoing rebuilding progress performance assessments, as specified by the Council, that are available in the preferred alternative, 1C. The F rate in 1E is F=0, which would result in no harvest of scup (commercial, recreational, or incidental take in other fisheries) for the proposed 4-yr period; this alternative was considered but excluded from detailed analysis as it was not considered a reasonable solution to the issue. Alternatives 1F through 1H proposed maintaining a constant harvest level of scup over a specified rebuilding period. Alternative 1F, the least restrictive constant harvest rebuilding alternative, was rejected because it would not rebuild the stock within the 10-year period required under the Magnuson-Stevens Act. Of the remaining two constant harvest alternatives, 1G is less restrictive than alternative 1H. Relative to the constant F strategies, the constant harvest strategies 1D and 1H are expected to be less restrictive than alternatives 1C and 1G, but more restrictive than alternatives 1A and 1B. For clarity, the Council has identified rebuilding program alternative 1C, with the additional criteria outlined in the SUPPLEMENTARY INFORMATION in the preamble of this proposed rule, as its preferred alternative. Expected Economic Impacts of Alternatives The effects of actions were analyzed by employing quantitative approaches to the extent possible. Where quantitative data were not available, qualitative analyses were conducted. In the current analysis, effects on profitability associated with the proposed management measures should be evaluated by looking at the impact of the proposed measures on individual vessel costs and revenue. However, in the absence of cost data for individual vessels engaged in these fisheries, changes in gross revenue are used as a proxy for profitability. Procedurally, the economic effects of the quotas under the various rebuilding schedules were estimated by assessing the changes in potential revenues. This was accomplished by multiplying the corresponding level of Total Allowable Landings

(TAL)under each alternative by the ex-vessel price forecasted for each of the years in an alternative's rebuilding time line. Commercial Fishery Impacts Aggregate scup landings in 2008, the first year of the rebuilding period, relative to 2006 are expected to be the highest under alternative 1A (an increase of 153 percent), followed by alternative 1B (an increase of 41 percent), and alternatives 1C and 1G (an increase of 5 percent each). Under alternatives 1D and 1H, scup landings are expected to decrease (29 percent each) in 2008, compared to 2006. Commercial quotas are expected to increase in each year subsequent to 2008 from the 2006 baseline value for each alternative, except those for constant harvest strategies under alternatives 1G and 1H. For alternatives 1G and 1H, no increase is predicted until the rebuilding time frame is complete and the stock is rebuilt. Assuming that the predicted changes in initial annual revenue in 2008 are for all active participants in the fishery and that they are evenly distributed over all active participants in the fishery (the 428 vessels that landed scup in 2005), each business unit could be expected to gain an average of $7,114 in gross revenues under alternative 1A, and $1,914 under alternative 1B, if the entire TAL is landed in 2008. Potential losses in 2008 of $194 in gross revenue are estimated for each scup vessel under alternatives 1C and 1G, and $2,621 under alternatives 1D and 1H. If revenue earned from all other species is assumed to remain constant, 21 vessels are projected to incur total revenue losses of 5 percent or more in 2008 under the two most restrictive alternatives (1D and 1H). Of these 21 vessels, 11 are projected to incur revenue reductions of 5-9 percent, and 10 vessels are projected to lose up to 10-19 percent of their total gross revenue. Relative to each vessel's home port state as reported on the vessel's permit application, nine of the vessels projected to incur revenue losses of 5 percent or more under alternatives 1D and 1H listed New York as their home port state, five of these vessels listed Massachusetts as their home port state, and five listed Rhode Island as their home port state. The home port states of the remaining two vessels can not be disclosed for confidentiality reasons. The 21 vessels estimated to incur revenue losses of 5 percent or more in 2008 under the two most restrictive alternatives (1D and 1H) list 15 different home port locations on their permit applications. The only home port locations with more than one vessel estimated to incur total revenue reductions of 5 percent or more are in Montauk, NY (five vessels) and Point Judith, RI (three vessels). Although alternatives 1C, 1D, 1G, and 1H will likely have a negative short-term economic impact on some scup harvesting businesses, they are expected to result in long-term positive impacts to the industry as a whole, once the scup stock rebuilds. Quotas will gradually increase toward the rebuilt stock level for constant F strategies and are expected to significantly increase when rebuilding is achieved for constant harvest strategy alternatives. Recreational Fishery Impacts Recreational landings of scup in 2006 were projected to be 2.83 million lb (1,284 mt). Potential increases in landings could be observed in 2008 under the recreational harvest limits projected for alternatives 1A and 1B. The 2008 recreational harvest limits under alternatives 1C and 1G would be approximately equal to the projected 2006 recreational landings. The 2008 recreational harvest limits for alternatives 1D and 1H are projected to be 1.923 million lb (872 mt), a potential decrease of approximately 1.0 million lb (453 mt) when compared to 2006 levels. There is no empirical information available to determine how sensitive to the proposed changes in scup recreational harvest limits affected anglers might be. In other words, it is not possible to determine how affected anglers will respond to the new regulations. Scup angler trip taking behavior may remain unchanged, or the management measures may result in anglers taking fewer fishing trips or no recreational trips at all if suitable alternative target species are unavailable. Although the potential changes in trip taking behavior cannot be quantified, given the marginal changes in management measures from 2006 to those expected for 2008 and the fact that the proposed measures do not prohibit anglers from engaging in catch and release fishing, the demand for fishing trips should remain relatively unaffected. Nevertheless, to the extent that anglers impacted by the proposed measures do take fewer trips, economic losses may accrue to businesses that support marine recreational activities. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: April 17, 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 § 648.127, paragraph (a)(1) is revised to read as follows: § 648.127 Framework adjustment to management measures.

(a)* * *

(1)*Adjustment process.* The Council shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council must provide the public with advance notice of the availability of the recommendation(s), appropriate justification(s) and economic and biological analyses, and the opportunity to comment on the proposed adjustment(s) at the first meeting and prior to and at the second Council meeting. The Council's recommendations on adjustments or additions to management measures must come from one or more of the following categories: Minimum fish size, maximum fish size, gear restrictions, gear restricted areas, gear requirements or prohibitions, permitting restrictions, recreational possession limit, recreational seasons, closed areas, commercial seasons, commercial trip limits, commercial quota system including commercial quota allocation procedure and possible quota set asides to mitigate bycatch, recreational harvest limit, annual specification quota setting process, FMP Monitoring Committee composition and process, description and identification of essential fish habitat (and fishing gear management measures that impact EFH), description and identification of habitat areas of particular concern, overfishing definition and related thresholds and targets, regional gear restrictions, regional season restrictions (including option to split seasons), restrictions on vessel size (LOA and GRT) or shaft horsepower, operator permits, any other commercial or recreational management measures, any other management measures currently included in the FMP, and set aside quota for scientific research. [FR Doc. 07-2016 Filed 4-23-07; 8:45 am]

Connectionstraces to 25

Traces to 25 documents

U.S. Code