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Code · REGISTER · 2007-05-03 · PROPOSED RULES · Unknown

Unknown. Final rule

31,153 words·~142 min read·/register/2007/05/03/07-2204

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-05-03.xml --- 72 85 Thursday, May 3, 2007 Contents Agricultural Agricultural Marketing Service RULES Tomatoes grown in Florida, 24530-24532 E7-8459 PROPOSED RULES Cherries
(tart)grown in Michigan, et al., 24553-24554 E7-8443 Grapes grown in Southeast California, 24551-24553 E7-8458 Agriculture Agriculture Department See Agricultural Marketing Service See Federal Crop Insurance Corporation See Forest Service Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 24587-24589 E7-8413 E7-8414 E7-8415 Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panels, 24589 E7-8457 Centers Centers for Medicare & Medicaid Services PROPOSED RULES Medicare: Hospital inpatient prospective payment systems and 2008 FY rates, 24680-25135 07-1920 Civil Civil Rights Commission NOTICES Meetings; Sunshine Act, 24561 07-2208 Coast Guard Coast Guard RULES Drawbridge operations: New Jersey, 24534 E7-8493 Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Cumberland River, Clarksville, TN, 24534-24536 E7-7951 NOTICES Agency information collection activities; proposals, submissions, and approvals, 24594-24595 E7-8494 Committees; establishment, renewal, termination, etc.: Area Maritime Security Committee, 24595 E7-8484 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office Defense Defense Department PROPOSED RULES Federal Acquisition Regulation (FAR): Construction and service contracts; use of products containing recovered materials, 24554-24557 07-2168 NOTICES Agency information collection activities; proposals, submissions, and approvals, 07-2141 24569-24570 07-2165 07-2166 Meetings: Defense Science Board, 24570-24571 07-2174 07-2175 07-2176 07-2177 Privacy Act; systems of records, 24572-24576 E7-8434 E7-8435 Drug Drug Enforcement Administration RULES Schedules of controlled substances: Lisdexamfetamine; placement into Schedule II, 24532-24534 E7-8421 NOTICES Registration revocations, restrictions, denials, reinstatements: Fotinopoulos, John J., 24602-24607 E7-8453 Green Acres Farms, Inc., 24607-24608 E7-8454 Schedules of controlled substances; production quotas: Schedules I and II— Proposed 2007 aggregate, 24608-24611 E7-8422 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 24576 E7-8431 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: Bayer Clothing Group Inc., 24612 E7-8469 EBM Textiles LLC, et al., 24612-24613 E7-8462 Fairchild Semiconductor International, 24613-24615 E7-8466 Merrill Corp., 24615 E7-8465 Precision Technologies Inc., 24615 E7-8468 Quality Transparent Bag Co., Inc., 24615 E7-8464 Randstad, 24616 E7-8463 Schoeller Arca Systems, 24616 E7-8467 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission Energy Energy Efficiency and Renewable Energy Office NOTICES Meetings: Hydrogen and Fuel Cell Technical Advisory Committee, 24576-24577 E7-8517 EPA Environmental Protection Agency RULES Air pollutants, hazardous; national emission standards: Halogenated solvent cleaning, 25138-25159 E7-7668 NOTICES Agency information collection activities; proposals, submissions, and approvals, 24582-24583 E7-8442 Superfund; response and remedial actions, proposed settlements, etc.: Dover Municipal Well Site. NJ, 24583-24584 E7-8441 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration NOTICES Aircraft: Zeppelin Luftschifftechnik GmbH model LZ N07 airship; design criteria availability, 24656-24674 E7-7302 Exemption petitions; summary and disposition, 24674-24675 E7-8491 FBI Federal Bureau of Investigation NOTICES Meetings: National Crime Prevention and Privacy Compact Council, 24611-24612 07-2182 Federal Crop Federal Crop Insurance Corporation RULES Crop insurance regulations: Mint crop insurance provisions, 24523-24530 E7-8340 Federal Energy Federal Energy Regulatory Commission NOTICES Hydroelectric applications, 24580-24581 E7-8408 E7-8409 *Applications, hearings, determinations, etc.:* Avista Energy, Inc., 24577 E7-8405 Dominion Transmission, Inc., 24577-24578 E7-8410 Duke Energy Carolinas, LLC, 24578 E7-8407 Gas Transmission Northwest Corp., 24578 E7-8404 MIGC, Inc., 24578-24579 E7-8412 Pirin Solutions, LLC, 24579 E7-8406 Williston Basin Interstate Pipeline Co., 24579-24580 E7-8411 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 24584 E7-8481 Permissible nonbanking activities, 24584 E7-8482 FTC Federal Trade Commission NOTICES Prohibited trade practices: InPhonic, Inc., 24584-24586 E7-8403 Soyo, Inc., 24586-24587 E7-8402 Fish Fish and Wildlife Service NOTICES Endangered and threatened species: Recovery plans— Nesogenes rotensis and osmoxylon mariannense, 24597 07-2179 Endangered and threatened species permit applications, 24596-24597 E7-8461 Foreign Foreign Assets Control Office NOTICES Sanctions; blocked persons, specially designated nationals, terrorists, narcotics traffickers, and foreign terrorist organizations: Individuals and entities subject to various economic sanctions programs; list, 24675-24677 E7-8299 Forest Forest Service NOTICES Environmental statements; notice of intent: Wallowa-Whitman National Forest, OR, 24558-24561 07-2178 GSA General Services Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Construction and service contracts; use of products containing recovered materials, 24554-24557 07-2168 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Health Resources and Services Administration See Substance Abuse and Mental Health Services Administration Health Health Resources and Services Administration NOTICES Reports and guidance documents; availability, etc.: Rural Urban Commuting Areas definition; rural health grant programs eligibility; comment request, 24589-24591 E7-8492 Homeland Homeland Security Department See Coast Guard RULES Acquisition regulations: Revisions, 24536 E7-8420 NOTICES Reports and guidance documents; availability, etc.: Department programs and systems; privacy impact assessments approved; list, 24593 E7-8419 Indian Indian Affairs Bureau NOTICES Irrigation projects; operations and maintenance charges: Rate adjustments; correction, 24678 Z7-7558 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau IRS Internal Revenue Service RULES Income taxes: Dual consolidated losses Correction, 24678 International International Trade Administration NOTICES Antidumping: Cut-to-length carbon steel plate from— Romania, 24561 E7-8478 Honey from— China, 24561-24562 E7-8479 Oil country tubular goods from— Mexico, 24562-24564 E7-8480 E7-8483 Justice Justice Department See Drug Enforcement Administration See Federal Bureau of Investigation NOTICES Pollution control; consent judgments: Cyprus Amax Minerals Co., 24599-24600 07-2164 ExxonMobile Corp. et al., 24600-24601 07-2163 Rhodia Inc., 24601 07-2162 Shan Industries, LLC, 24601-24602 07-2161 Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Oil and gas leases: Texas, 24597-24598 E7-8487 E7-8488 Realty actions; sales, leases, etc.: Idaho, 24598 E7-8485 New Mexico, 24598-24599 E7-8486 Survey plat filings: Montana, 24599 E7-8449 Library Library of Congress NOTICES Copyright royalty fees: Microsoft Corp. sound recordings; eligible nonsubscription transmissions under statutory licenses; intent to audit, 24623-24624 E7-8515 Mine Mine Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 24616-24617 E7-8432 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Construction and service contracts; use of products containing recovered materials, 24554-24557 07-2168 NOTICES Agency information collection activities; proposals, submissions, and approvals, 24624-24625 E7-8387 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: West Coast States and Western Pacific fisheries— West Coast salmon, 24539-24550 07-2204 NOTICES Scientific research permit applications, determinations, etc., 24564-24565 E7-8398 E7-8399 National Science National Science Foundation NOTICES Meetings; Sunshine Act, 24625 E7-8418 Nuclear Nuclear Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-8436 24625-24627 E7-8438 E7-8439 Meetings; Sunshine Act, 24630-24631 07-2200 *Applications, hearings, determinations, etc.:* PSEG Nuclear LLC, 24627-24630 E7-8437 Occupational Occupational Safety and Health Administration NOTICES Nationally recognized testing laboratories, etc.: Electrical Reliability Services, Inc., 24617-24623 E7-8455 Patent Patent and Trademark Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 24565-24566 E7-8456 Patents: Substantive patent laws harmonization; international efforts; comments request, 24566-24569 E7-8416 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Hazardous materials: International transport standards and regulations use; authorization requirements, 25162-25177 07-1959 Hazardous materials transportation: Registration and Fee Assessment Program, 24536-24539 E7-8394 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Jewish American Heritage Month (Proc. 8136), 25179-25182 07-2217 Loyalty Day (Proc. 8137), 25183-25184 07-2218 National Physical Fitness and Sports Month (Proc. 8138), 25185-25186 07-2219 Older Americans Month (Proc. 8139), 25187-25188 07-2220 Railroad Railroad Retirement Board NOTICES Privacy Act; systems of records, 24631-24635 E7-8448 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-8427 24635-24636 E7-8428 Investment Company Act of 1940: Stepstone Funds et al., 24636-24637 E7-8426 Meetings; Sunshine Act, 24637 E7-8430 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 24638-24639 E7-8397 Chicago Board Options Exchange, Inc., 24639-24648 E7-8395 E7-8396 Options Clearing Corp., 24648-24650 E7-8429 SBA Small Business Administration NOTICES Disaster loan areas: New Jersey, 24650 E7-8425 Intergovernmental review of agency programs and activities, 24650-24651 E7-8433 Social Social Security Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 24651-24652 E7-8497 Privacy Act; computer matching programs, 24652-24653 E7-8460 State State Department NOTICES Culturally significant objects imported for exhibition: Bar at the Folies-Bergere, 24653 E7-8477 Baroque World of Fernando Botero, 24653-24654 E7-8476 Desiderio da Settignana: Sculptor of Renaissance Florence, 24654 E7-8470 Encompassing the Globe: Portugal and the World in the 16th and 17th Centuries; correction, 24654 E7-8473 Journey to the Copper Age: Archaeology in the Holy Land, 24654-24655 E7-8471 Mirror and the Mask: Portraiture in the Age of Picasso, 24655 E7-8475 Roman Art from the Louvre, 24655 E7-8474 Symbols of Power: Napoleon and the Art of the Empire Style, 1800-1815, 24655 E7-8472 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 24591-24593 E7-8450 E7-8452 Transportation Transportation Department See Federal Aviation Administration See Pipeline and Hazardous Materials Safety Administration Treasury Treasury Department See Foreign Assets Control Office See Internal Revenue Service Veterans Veterans Affairs Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 24677 E7-8400 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 24680-25135 07-1920 Part III Environmental Protection Agency, 25138-25159 E7-7668 Part IV Transportation Department, Pipeline and Hazardous Materials Safety Administration, 25162-25177 07-1959 Part V Executive Office of the President, Presidential Documents, 25179-25188 07-2217 07-2218 07-2219 07-2220 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 85 Thursday, May 3, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 457 RIN 0563-AC03 Common Crop Insurance Regulations; Mint Crop Insurance Provisions AGENCY: Federal Crop Insurance Corporation, USDA. ACTION: Final rule. SUMMARY: The Federal Crop Insurance Corporation
(FCIC)finalizes the Common Crop Insurance Regulations; Mint Crop Insurance Provisions to convert the mint pilot crop insurance program to a permanent insurance program for the 2008 and succeeding crop years. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: Linda Williams, Risk Management Specialist, Product Management, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, 6501 Beacon Drive, Stop 0812, Room 421, Kansas City, MO, 64133-4676, telephone
(816)926-7730. SUPPLEMENTARY INFORMATION: Executive Order 12866 The Office of Management and Budget
(OMB)has determined that this rule is non-significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by OMB. Paperwork Reduction Act of 1995 Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through November 30, 2007. E-Government Act Compliance FCIC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA. Executive Order 13132 It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Regulatory Flexibility Act FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605). Federal Assistance Program This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450. Executive Order 12372 This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983. Executive Order 12988 This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought. Environmental Evaluation This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed. Background On Monday, February 6, 2006, FCIC published a notice of proposed rulemaking in the **Federal Register** at 71 FR 6016-6021 to add 7 CFR 457.169 Mint crop insurance provisions effective for the 2008 and succeeding crop years. The public was afforded 60 days to submit written comments and opinions. The e-mail address listed on the proposed rule and the Federal eRulemaking Portal address were not operational during that time period, therefore, FCIC published a notice in the **Federal Register** at 71 FR 14828 on March 24, 2006, extending the comment period for an additional 30 days, until April 24, 2006. A total of 20 comments were received from 3 commenters. The commenters were an insurance services organization and 2 approved insurance providers. The comments received and FCIC's responses are as follows: *Comment:* Two commenters recommended adding a definition for “sales closing date” to these provisions which would define the rules when a county has two sales closing dates similar to what has been done in the Small Grains Crop Provisions. The definition in the Basic Provisions assumes a single sales closing date for the crop. *Response:* Neither the Small Grains Crop Provisions or the Mint Crop Provisions assume a single sales closing date. With respect to the actual sales closing date, both state that it is the dates contained in the Special Provisions. Therefore, the Special Provisions can have separate sales closing dates for the Winter Coverage Option and the spring insurance period. FCIC agrees that there is some confusion regarding when application must be made and is adding a definition of “sales closing date” to make it clear that if the Winter Coverage Option is selected, applications for both the Winter Coverage Option and the spring insurance period must be submitted by the sales closing date for the Winter Coverage Option and coverage may not be changed between the winter and the spring coverage periods. If the producer only wants coverage for the spring insurance period, application must be made by the spring sales closing date and changes to the policy can be made for the following crop year by the next spring sales closing date. *Comment:* Two commenters recommended the definition of “type” should be retained in the provisions because the term “type” is used frequently in the policy. Both commenters recommended revising the definition to include all insurable mint types. One commenter questioned if a definition of “type” would also have an effect on the definition of “mint,” which refers to spearmint or peppermint. *Response:* FCIC agrees with the recommendation to include the definition of “type.” Section 1 of the Crop Provisions has been revised accordingly. It is not appropriate to include all the insurable mint types in the definition because certain types may only be insurable in certain counties. For this reason the definition refers to the categories of mint designated as a type in the Special Provisions. The definition of “type” does not have any effect on the definition of “mint.” The definition of “type” refers to the categories of mint designated as types. Since mint is defined as spearmint or peppermint, type would refer to the designation of different types of peppermint and spearmint. No change to the definition of “mint” has been made. *Comment:* Two commenters stated in regards to section 2, producers use “still” records to separate types (basic units) and optional units. They asked whether pre-authorization is required for commingled production as with other crops such as corn and soybeans. *Response:* Section 2 of the Mint Crop Provisions states basic units will be established for each mint type listed in the Special Provisions. As provided in the Basic Provisions, producer's verifiable “still” records may be used to establish basic units. However, oil derived from peppermint and spearmint types would not be commingled together. Oil from each mint type, for example, two different types of spearmint, are not supposed to be commingled because each is a separate unit. According to section 11(a)(2) of the Mint Crop Provisions, if production is commingled between basic units, any commingled production will be allocated to such units in proportion to the liability on the harvested acreage for the units. *Comment:* One commenter questioned whether the term “stand age” belongs in section 3(b)(2) which lists various things that “* * * may reduce the expected yield below the yield upon which the insurance guarantee is based * * *” The commenter recommended the term “stand age” could be combined with the reporting of the planting dates for new and existing mint acreage currently listed in sections 3(b)(3) and (4). *Response:* FCIC agrees that the stand age is not something that would necessarily reduce the yield below the yield upon which the guarantee is based. Therefore, FCIC has removed the term “stand age” from section 3(b)(2). The stand age reporting requirement is now contained in section 3(b)(3). *Comment:* One commenter recommended changing “* * * deemed to not have attached * * *” in section 5 to “* * * deemed not to have attached * * *.” *Response:* FCIC agrees with the commenter and has made the revision accordingly. *Comment:* Two commenters expressed concerns regarding the added language in sections 6(a)(4)(i) and
(ii)that indicates an inspection is required not only the initial year insured but also any “subsequent crop year following an indemnified loss” or when “an indemnity was paid the previous crop year.” The commenters questioned if mint is the second crop on the acreage, and a loss is incurred but the producer elects not to accept the loss payment on the mint whether an inspection is necessary the subsequent crop year. They also stated if a claim was filed the preceding crop year and it was determined there was an adequate stand as a result, another inspection should not be necessary because there was not a payable loss. One commenter indicated with this additional requirement, approved insurance providers would have to do what they could to complete claims and inspections for acreage insured under the Winter Coverage Option before the mint was plowed down for the winter. *Response:* The provisions contained in section 6(a)(4)(i) and
(ii)were added to the crop provisions as a result of the FCIC Board of Directors' (Board) approval to convert the mint pilot crop insurance program to a permanent program. The Board's decision was based on an independent contractor's recommendation to modify the self-certification program to reduce the program integrity problem caused by insuring acreage that did not have an adequate stand at the time insurance attached. The Board's Final Resolution specified that when an indemnity was paid the previous year's approved insurance providers must conduct a crop inspection to determine if the crop has an adequate stand. However, in response to the commenters, FCIC has revised the provisions in sections 6(a)(4) and 13(e) to not require an inspection for the following year in situations where a notice of loss has been filed, but it is determined that there is an adequate stand on the mint acreage. If there has been an indemnity paid or a notice of loss filed and the approved insurance provider determined there was not an adequate stand, the acreage must be inspected before insurance will attach for the next insurance period. For example, in those cases where a producer receives an indemnity payment for spring mint, or claims a loss and the approved insurance provider determines there is not an adequate stand, an inspection of the acreage insured under the Winter Coverage Option must be conducted before coverage begins in October or November. *Comment:* One commenter recommended rewording the phrase in section 6(c) “* * * which provides coverage for mint that is damaged after the date coverage ends in the fall and before the date coverage begins in the spring * * *” The phrase could be misleading to new producers since they had no previous coverage that ended in the fall. *Response:* The provision in section 6(c) merely notifies producers that winter coverage for mint is available. However, the provision referred to is duplicative of the provisions in section 13. Therefore, to avoid any potential conflicts or ambiguity between sections 6(c) and section 13, FCIC is revising section 6(c) to state that winter coverage is available in accordance with section 13. Section 13 states when coverage is provided under the Winter Coverage Option. *Comment:* Two commenters recommended the reference to actuarial documents in sections 7(b)(1) and
(2)be changed back to refer to the Special Provisions as this is where the rotation and age limitation statements are located. One commenter suggested since mint will no longer be a pilot program, exceptions to the provisions should be made to allow coverage by written agreement. *Response:* FCIC agrees section 7(b)(1) and
(2)should reference the Special Provisions. FCIC also agrees with the comment and has revised the provisions to allow rotation requirements and age limitations to be modified by written agreement. *Comment:* Two commenters questioned whether a two-week period is sufficient to complete inspections on all new mint policies as required in section 8(b). Both commenters recommended changing it to a 30-day period to provide adequate time to do the inspection. This would be consistent with the 30-day period for many other crops ( *i.e.* Nursery). One commenter questioned whether the inspection time period in section 8(b) also applies to the subsequent crop year following an indemnified loss and should it be referenced in this provision as well. One commenter also expressed concerns that the second sentence in section 8(b) could be confusing and lead to the impression that coverage starts after the application is received in the local office. *Response:* Mint is similar to other perennial crops and must be inspected to determine if the mint stand is capable of producing the yield used to establish the production guarantee. Unfortunately, it is not possible to change the period for a crop inspection for the spring insurance period because the mint plants will not be out of dormancy 30 days before the start of the insurance period. Therefore, it cannot be determined if there is an adequate stand earlier than two weeks before the start of the insurance period. FCIC agrees the provisions should include the requirement that an inspection must be made before the next insurance period following a notice of loss for which an indemnity was paid or the approved insurance provider determined there was not an adequate stand to determine if the mint acreage has an adequate stand for the next insurance period. FCIC also agrees the second sentence in section 8(b) could be confusing. Therefore, section 8(b) has been revised to specify that for the year of application and for the crop year following a loss, insurance will attach on the date coverage begins unless insurability requirements are not met. *Comment:* Three commenters stated section 8(c)(3) references that coverage ends at the harvest for each cutting. The reference should be revised since mint has multiple cuttings each crop year, and coverage does not end until the final cutting of the crop year, as was done in the pilot program. *Response:* FCIC agrees and has revised section 8(c)(3) to specify coverage ends at final cutting of the crop for the crop year. *Comment:* Two commenters suggested revising section 9(a)(2) to state “Fire, due to natural causes” would clarify when fire is an insured cause of loss consistent with the Federal Crop Insurance Act and the Crop Insurance Handbook. *Response:* In addition to the Mint Crop Provisions, the Common Crop Insurance Policy, Basic Provisions are applicable for mint. Section 12 of the Basic Provisions states all specified causes of loss must be due to a naturally occurring event. Adding the suggested language would be redundant and could cause confusion by suggesting that the other listed causes of loss do not have to be due to natural causes. Therefore, no change has been made. *Comment:* One commenter suggested “marketable” should be added to section 11(d)(2). For example, a sample was distilled on a 7 acre unit that was cut but not distilled because of rain over a 3-4 day period. The sample distilled was a bronze color when it should have been clear. It was determined the oil from the sample was not a marketable product and thus had no value. Mint oil is either marketable or not, there is no middle ground. *Response:* Adding “marketable” to section 11(d)(2) would effectively add quality adjustment to the policy. Quality adjustment can only be added to the policy if there is an objective grading standard upon which to base the quality. There are no objective grading standards for mint oil. In many instances different qualities of mint oil (such as smell and taste) are blended by buyers for varying uses such as gum, toothpaste, etc. This means it would be up to the buyer to determine what is “marketable,” which would add a significant vulnerability to the policy because the buyer could elect not to purchase the mint for reasons other than the quality and shift the loss to the government. Further, without a consistent standard, it would be possible for some producers to be indemnified under the policy while others are not based on the subjective decision of the buyer. No change has been made. *Comment:* One commenter suggested for section 13(a), deleting the comma before “* * * if”. *Response:* FCIC agrees with the suggestion and has revised section 13(a). *Comment:* Two commenters asked if any new mint acreage planted after the applicable acreage reporting date as stated in section 13(d) is to be reported as insurable or uninsurable. A final planting date for mint covered under the Winter Coverage Option cannot be found in the actuarial documents. The commenters questioned whether there is any time between the fall acreage reporting date and the spring final planting date that mint should not be planted for insurance. The commenter also questioned if they should be providing the Winter Coverage Option for mint planted past a certain date. *Response:* Mint is a perennial crop and producers will plant it, depending upon the region and weather conditions, during late fall, winter, or early spring. Therefore, there is no final planting date because FCIC does not want to dictate to the producer when the crop must be planted. However, all acreage of mint in the county must be reported on the acreage report. Therefore, mint planted after the acreage reporting date must be reported within two weeks of planting. FCIC recognizes that, depending on when it is planted, newly planted mint may not have attained an adequate stand by the date coverage begins. FCIC is revising the provisions to clarify that all mint must have attained an adequate stand by the date coverage begins before it can be reported as insurable. Mint that does not have an adequate stand on the date coverage began, or that was planted after coverage began, must be reported as uninsured. *Comment:* Two commenters stated section 13(e)(4) of the proposed rule referenced new mint acreage that is planted during the Winter Coverage Option insurance period but a final planting date could not be found for the Winter Coverage Option. *Response:* It is not practical to specify a final planting date under the Winter Coverage Option for new mint acreage because mint is usually planted at any time throughout the Winter Coverage Option insurance period, depending on conditions. However, as stated above, FCIC has revised the provisions to make it clear that before it is insured, the new mint acreage must have attained an adequate stand. Therefore, mint acreage planted during the Winter Coverage Option insurance period must be reported as uninsured. *Comment:* Two comments were received regarding the provisions contained in section 13(e)(4)(i), which requires that new mint acreage planted during the Winter Coverage Option be inspected and accepted for the first crop year. Insurance providers must notify the producer of acceptance or rejection of the application no later than November 15 adding that failure to notify by then will indicate acceptance. They questioned how the November 15 deadline fits with the December 15 acreage reporting date for acreage insured under the Winter Coverage Option. They also questioned how it works for new mint acreage planted after the Winter Coverage Option acreage reporting date. They asked whether it is covered by section 13(e)(4)(iv), allowing certification by the producer in place of the insurance provider's inspection for any mint acreage planted after the initial inspection. They asked what happens if additional acreage is planted after the inspection as there does not seem to be a final plant date for mint under the option. *Response:* There were no sub-paragraphs
(i)and
(iv)in section 13(e)(4) of the proposed rule as indicated by the commenters. FCIC believes the commenters unintentionally combined proposed section 13(e)(4) with sub-paragraphs
(i)and
(iv)from proposed section 13(e)(5). Section 13(e)(4) pertained to new mint planted after the acreage reporting date, and section 13(e)(5)(i) and
(iv)pertained to all mint, including newly planted and established, for which a premium rate is provided for the Winter Coverage Option. As stated above, FCIC has revised section 13(e) to require that all mint have an adequate stand at the time coverage begins to be insured. Mint planted during the Winter Coverage Option insurance period cannot meet this requirement and, therefore, must be reported as uninsured. This will eliminate any confusion regarding the insurability of mint planted after the date coverage begins and no additional inspection will be required of such acreage until the start of the next insurance period. However, FCIC has added provisions to section 8(b) requiring that mint acreage reported as being planted during the Winter Coverage Option insurance period be inspected to determine whether it has attained an adequate stand before the date coverage begins for the spring insurance period. *Comment:* Two commenters stated sections 13(e)(4)(ii) and
(iii)do not appear to apply to “new mint acreage” since they address inspection or certification in subsequent crop years. These should remain separate subparagraphs
(5)and
(6)as in the current pilot Crop Provisions. *Response:* Section 13(e)(4) of the proposed rule did not contain sub-paragraphs
(ii)and
(iii)as indicated by the commenters. FCIC believes the commenters unintentionally combined proposed section 13(e)(4) with sub-paragraphs
(ii)and
(iii)from proposed section 13(e)(5). The requirement that mint acreage must be inspected and accepted for the crop year following a loss that caused an inadequate stand or certified as having an adequate stand after the first year of coverage was contained in section 13(e)(5), which pertains to all mint types in the county. As stated above, FCIC has clarified that all mint must have an adequate stand to be insured and mint planted during the Winter Coverage Option insurance period must be reported as uninsured. Therefore, section 13(e) was correct in not making paragraph
(5)applicable to new mint acreage. No change has been made in response to this comment. *Comment:* One commenter questioned if the “after” should be deleted from section 13(e)(5)(iii) so it would read “* * * on the date coverage begins the first crop year * * *”. *Response:* Section 13(e)(5)(i) of the proposed rule required all mint types to be inspected and accepted the first crop year of insurance. Therefore, there is no need for the producer to provide such a certification in the first year and the provisions have been so revised. In addition, as stated above, the provision has been revised to require inspection the year after a reported loss that has caused an inadequate stand. Therefore, section 13(e)(4)(iii) will now require producers to certify to an adequate stand each crop year unless there was a reported loss that has caused an inadequate stand. *Comment:* One commenter stated section 13(e)(5)(iv) seems to indicate the producer could plant throughout the winter coverage insurance period and obtain coverage on new mint acreage provided the two week notice of planting was met. *Response:* As stated above, because mint is a perennial crop, producers will plant, depending upon the region and weather conditions, during late fall, winter, or early spring. However, the requirement that mint must have an adequate stand at the time coverage begins to be insurable applies to mint under the Winter Coverage Option. Since mint planted during the Winter Coverage Option insurance period could never have an adequate stand before coverage begins, it must be reported as uninsurable. Therefore, FCIC has removed section 13(e)(5)(iv) because it suggests that mint planted during the Winter Coverage Option insurance period is insurable as long as it is certified on the acreage report and this is not correct. *Comment:* Regarding section 13(i), three commenters asked if since this provision is only applicable to the Winter Coverage Option, should the correct production to count be 60 percent of the production guarantee as indicated in sections 13(b) and (l)(1). *Response:* Section 13(i) was added to address those instances when a producer wishes to destroy a portion of mint acreage during the Winter Coverage Option insurance period and before it can be determined if there is an adequate stand on the acreage. The producer must agree in writing that no indemnity will be paid for the acreage destroyed with consent. The total production to be counted for those acres destroyed with consent will not be less than the approved yield. Section 13(b) states the guarantee under the Winter Coverage Option is “equal to 60 percent of the guarantee determined under section 3 of the Crop Provisions.” In addition to the changes described above, FCIC has modified section 11(c) to clarify the claim for indemnity calculation when more than one mint type is insured. List of Subjects in 7 CFR Part 457 Crop insurance, Mint, Reporting and recordkeeping requirements. Final Rule Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation amends 7 CFR part 457 for the 2008 and succeeding crop years as follows: PART 457—COMMON CROP INSURANCE REGULATIONS 1. The authority citation for 7 CFR part 457 continues to read as follows: Authority: 7 U.S.C. 1506(l), 1506(p). 2. Section 457.169 is added to read as follows: § 457.169 Mint crop insurance provisions. The Mint Crop Insurance Provisions for the 2008 and succeeding crop years are as follows: FCIC policies: United States Department of Agriculture Federal Crop Insurance Corporation *Reinsured policies:* ( *Appropriate title for insurance provider* ) Both FCIC and reinsured policies: Mint Crop Insurance Provisions 1. Definitions *Adequate Stand.* A population of live mint plants that equals or exceeds the minimum required number of plants or percentage of ground cover, as specified in the Special Provisions. *Appraisal.* A method of determining potential production by harvesting and distilling a representative sample of the mint crop. *Cover crop.* A small grain crop seeded into mint acreage to reduce soil erosion and wind damage. *Cutting.* Severance of the upper part of the mint plant from its stalk and roots. *Distillation.* A process of extracting mint oil from harvested mint plants by heating and condensing. *Existing mint.* Mint planted for harvest during a previous crop year. *Ground cover.* Mint plants, including mint foliage and stolons, grown on insured acreage. *Harvest.* Removal of mint from the windrow. *Mint.* A perennial spearmint or peppermint plant of the family Labiatae and the genus *Mentha* grown for distillation of mint oil. *Mint oil.* Oil produced by the distillation of harvested mint plants. *New mint.* Mint planted for harvest for the first time. *Planted acreage.* In addition to the definition in the Basic Provisions, land in which mint stolons have been placed in a manner appropriate for the planting method and at the correct depth into a seedbed that has been properly prepared. *Pound.* 16 ounces avoirdupois. *Sales closing date.* In lieu of the definition contained in the Basic Provisions, if you select the Winter Coverage Option, application for the Winter Coverage Option will include application for the spring insurance period and must be submitted by the sales closing date for the Winter Coverage Option contained in the Special Provisions. Coverage may not be changed between the end of the Winter Coverage Option insurance period and the beginning of the spring insurance period. If you do not elect the Winter Coverage Option, application must be made by the spring sales closing date contained in the Special Provisions and all policy changes must be made by that date. If you later elect the Winter Coverage Option, you may select your coverage under the Winter Coverage Option. *Stolon.* A stem at or just below the surface of the ground that produces new mint plants at its tips or nodes. *Type.* A category of mint identified as a type in the Special Provisions. *Windrow.* Mint that is cut and placed in a row. 2. Unit Division A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by each mint type designated in the Special Provisions. 3. Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities
(a)In addition to the requirements of section 3 of the Basic Provisions, you may only select one price election for all the mint in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may only select one price election for each type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 100 percent of the maximum price election for one specific type, you must also choose 100 percent of the maximum price election for other types.
(b)In addition to the provisions in section 3 of the Basic Provisions, you must report:
(1)The total amount of mint oil produced from insurable acreage for all cuttings for each unit;
(2)Any damage to or removal of mint plants or stolons; any change in practices; or any other circumstance that may reduce the expected yield below the yield upon which the production guarantee is based, and the number of affected acres;
(3)The stand age;
(4)The date existing mint acreage was planted;
(5)The date new mint acreage was initially planted; and
(6)The type of mint.
(c)If you fail to notify us of any circumstance that may reduce your yields or insurable acres from previous levels, we will reduce your production guarantee and insurable acres at any time we become aware of the circumstance based on our estimate of the effect of damage to or removal of mint plants or stolons; stand age; change in practices; and any other circumstance that may affect the yield potential or insurable acres of the insured crop. 4. Contract Changes In accordance with section 4 of the Basic Provisions, the contract change date is June 30 preceding the cancellation date. 5. Cancellation and Termination Dates In accordance with section 2 of the Basic Provisions, the cancellation date is September 30 and the termination date is November 30. If your policy is terminated after insurance has attached for the subsequent crop year, coverage will be deemed not to have attached to the acreage for the subsequent crop year. 6. Insured Crop
(a)In accordance with the provisions of section 8 of the Basic Provisions, the crop insured will be all mint types in the county for which a premium rate is provided by the actuarial documents:
(1)In which you have a share;
(2)That are planted for harvest and distillation for mint oil;
(3)That have an adequate stand by the date coverage begins; and
(4)That have been:
(i)Inspected and accepted by us for the first crop year you are insured; or
(ii)Certified by you as having an adequate stand on the date coverage begins after the first crop year you are insured unless an inspection is required under section 8(b).
(b)In lieu of the provisions of section 8 of the Basic Provisions that prohibit insurance of a second crop harvested following the same crop in the same crop year, multiple harvests of mint on the same acreage will be considered as one mint crop.
(c)In addition to the coverages provided in these Crop Provisions, you may also elect the Winter Coverage Option in accordance with section 13. 7. Insurable Acreage
(a)Mint interplanted with a cover crop will not be considered interplanted for the purposes of section 9 of the Basic Provisions if the cover crop is destroyed prior to its maturity and is not harvested as grain.
(b)In addition to the provisions of section 9 of the Basic Provisions, unless allowed by written agreement, we will not insure any acreage that:
(1)Does not meet rotation requirements contained in the Special Provisions; or
(2)Exceeds existing mint age limitations contained in the Special Provisions. 8. Insurance Period In lieu of the provisions of section 11 of the Basic Provisions:
(a)Coverage begins on each unit or part of a unit for acreage with an adequate stand on the following calendar dates:
(1)June 16 in Indiana, Montana, and Wisconsin;
(2)May 16 in Washington; and
(3)For all other states, the date as provided in the Special Provisions.
(b)For the year of application, for when you have reported planting mint during the Winter Coverage Option insurance period, or for any insurance period following the payment of an indemnity or a reported loss where the crop was determined to not have an adequate stand, we will inspect all mint acreage within the two-week period before coverage begins (If you have elected the Winter Coverage Option, such inspection will occur not later than November 15).
(1)Insurance will attach on the date coverage begins, as specified in section 8(a), unless we inspect the acreage during the two-week period and determine it does not meet insurability requirements as specified in section 2 of the Basic Provisions, the application, or these Crop Provisions.
(2)You must provide any information we require for the crop or to determine the condition of the crop.
(c)Coverage ends for each unit or part of a unit at the earliest of:
(1)Total destruction of the insured crop on the unit;
(2)Final adjustment of a loss;
(3)The final cutting for the crop year;
(4)Abandonment of the crop; or
(5)The following calendar date:
(i)September 30 in Indiana and Wisconsin;
(ii)October 15 in Montana;
(iii)October 31 in Washington; and
(iv)For all other states, the date as provided in the Special Provisions. 9. Causes of Loss
(a)In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1)Adverse weather conditions;
(2)Fire;
(3)Insects or plant disease (except Verticillium Wilt disease), but not damage due to insufficient or improper application of control measures;
(4)Wildlife;
(5)Earthquake;
(6)Volcanic eruption; or
(7)Failure of the irrigation water supply, if caused by an insured cause of loss listed in sections 9(a)(1) through
(6)that occurs during the insurance period.
(b)In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against any loss of production that:
(1)Occurs after harvest;
(2)Is due to your failure to distill the crop, unless such failure is due to actual physical damage to the crop caused by an insured cause of loss that occurs during the insurance period; or
(3)Is due to Verticillium Wilt disease. 10. Duties In The Event of Damage or Loss In addition to your duties contained in section 14 of the Basic Provisions, if you discover that any insured mint is damaged, or if you intend to claim an indemnity on any unit:
(a)You must give us notice of probable loss at least 15 days before the beginning of any cutting or immediately if probable loss is discovered after cutting has begun or when cutting should have begun; and
(b)You must timely harvest and completely distill a sample of the crop on any acreage you do not intend to harvest, as designated by us, to determine if an indemnity is due. 11. Settlement of Claim
(a)We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1)For any optional units, we will combine all optional units for which such production records were not provided; or
(2)For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b)We may defer appraisals until the crop reaches maturity or the date mint harvest is general in the area.
(c)In the event of loss or damage covered by this policy, we will settle your claim by:
(1)Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2)Multiplying the result of section 11(c)(1) by the respective price election for each type, if applicable;
(3)Totaling the results of section 11(c)(2);
(4)Multiplying the total production to be counted (see section 11(d)) of each type, if applicable, by its respective price election;
(5)Totaling the results of section 11(c)(4);
(6)Subtracting the result in section 11(c)(5) from the result of section 11(c)(3); and
(7)Multiplying the result in section 11(c)(6) by your share. For example: Assume that you have a 100 percent share in 100 acres of peppermint in the unit, with a production guarantee of 50 pounds of oil per acre and a price election of $12 per pound. Because an insured cause of loss has reduced production, you only harvest and distill 2,500 pounds of peppermint oil. Your indemnity would be calculated as follows:
(1)100 acres × 50 pounds = 5,000 pound production guarantee;
(2)5,000 pound production guarantee × $12 price election = $60,000 value of production guarantee;
(3)2,500 pounds production to count × $12 price election = $30,000 value of production to count;
(4)$60,000 − $30,000 = $30,000 loss; and
(5)$30,000 × 100 percent share = $30,000 indemnity payment.
(d)The total production to count (in pounds of oil) from all insurable acreage on the unit will include:
(1)All appraised production as follows:
(i)Not less than the production guarantee per acre for acreage:
(A)That is abandoned;
(B)That is put to another use without our consent;
(C)For which you fail to meet the requirements contained in section 10 of these Crop Provisions;
(D)That is damaged solely by uninsured causes; or
(E)For which you fail to provide production records that are acceptable to us;
(ii)All production lost due to uninsured causes;
(iii)All unharvested production;
(iv)All potential production on insured acreage that you intend to put to another use or abandon with our consent:
(A)If you do not elect to continue to care for the crop, we may give you our consent to put the acreage to another use if you agree to leave intact and provide sufficient care for representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, the amount of production to count will be not less than the production guarantee per acre); or
(B)If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or the appraised production at the time the crop reaches maturity.
(2)All harvested production from the insurable acreage.
(e)Harvested production must be distilled to determine production to count.
(f)Any oil distilled from plants growing in the mint will be counted as mint oil on a weight basis.
(g)You are responsible for the cost of distilling samples for loss adjustment purposes. 12. Late and Prevented Planting. The late and prevented planting provisions of the Basic Provisions are not applicable. 13. Winter Coverage Option
(a)The provisions of this option are continuous and will be attached to and made part of your insurance policy if:
(1)You elect the Winter Coverage Option on your application, or on a form approved by us, on or before the fall sales closing date for the crop year in which you wish to insure mint under this option, and pay the additional premium indicated in the actuarial documents for this optional coverage; and
(2)You have not elected coverage under the Catastrophic Risk Protection Endorsement.
(b)This option provides a production guarantee equal to 60 percent of the production guarantee determined under section 3 of these Crop Provisions.
(c)If you elect this option, all of the insurable acreage in the county will be insured by this option.
(d)In addition to the requirements of section 6 of the Basic Provisions, any acreage of new mint planted after the applicable acreage reporting date must be certified by you and reported to us within two weeks of planting.
(e)In lieu of section 6(a) of these Crop Provisions, the crop insured will be all mint types in the county for which a premium rate is provided by the actuarial documents:
(1)In which you have a share;
(2)That are planted for harvest and distillation as mint oil;
(3)That have an adequate stand on the date coverage begins (newly planted mint types must be reported in accordance with section 8(d) but they must be reported as uninsured unless they have an adequate stand by the date coverage begins); and
(4)That has been:
(i)Inspected and accepted by us for the first crop year you are insured (We will inspect all mint acreage and will notify you of the acceptance or rejection of your application not later than November 15. If we fail to notify you by that date, your application will be accepted unless other grounds exist to reject the application, as specified in the Basic Provisions, the application, or these Crop Provisions);
(ii)Inspected and accepted by us not later than November 15 for the crop year following the payment of an indemnity or a reported loss unless the crop was determined to have an adequate stand (If we determined there was an adequate stand after the loss was reported, no inspection is necessary); or
(iii)Certified by you as having an adequate stand on the date coverage begins unless an inspection is required under section 13(e)(4)(ii).
(f)Coverage under this option begins:
(1)On existing mint acreage with an adequate stand at 12:01 a.m. on the calendar date listed below:
(i)October 1 in Indiana and Wisconsin;
(ii)October 16 in Montana;
(iii)November 1 in Washington; and
(iv)For all other states, the date as provided in the Special Provisions.
(2)On new mint acreage, that has an adequate stand by the date coverage begins as specified in section 13(f)(1).
(g)Coverage under this option ends on the unit or part of the unit at 11:59 p.m. on the calendar date listed below:
(1)June 15 in Indiana, Montana, and Wisconsin;
(2)May 15 in Washington; and
(3)For all other states, the date as provided in the Special Provisions.
(h)In lieu of section 10(a) of these Crop Provisions, you must give notice of probable loss within 72 hours after you discover any insured mint is damaged and does not have an adequate stand, but no later than the date coverage ends for this option.
(i)In addition to the requirements of section 10 of these Crop Provisions, you must give us notice if you want our consent to put any mint acreage to another use before a determination can be made if there is an adequate stand on the acreage. We will inspect the acreage and you must agree in writing no payment or indemnity will be made for the acreage put to another use. The total production to be counted for acreage put to another use with our consent in accordance with this section will not be less than the approved yield.
(j)In addition to section 11(a) of these Crop Provisions we will make a Winter Coverage Option payment only on acreage that had an adequate stand on the date that insurance attached if the adequate stand was lost due to an insured cause of loss occurring within the Winter Coverage Option insurance period and the acreage consists of at least 20 acres or 20 percent of the insurable planted acres in the unit.
(k)In lieu of section 11(b) of these Crop Provisions, we may defer appraisals until the date coverage ends under this option.
(l)In lieu of section 11(c) of these Crop Provisions, in the event of loss or damage covered by this policy, we will settle your claim by:
(1)Multiplying 60 percent by your production guarantee per acre;
(2)Multiplying the result in section 13(l)(1) by the number of acres that do not have an adequate stand;
(3)Multiplying the result in section 13(l)(2) by the price election; and
(4)Multiplying the result in section 13(l)(3) by your share. For example: Assume that you have a 100 percent share in 100 acres of mint with a production guarantee of 50 pounds of oil per acre and a price election of $12 per pound. Also assume that you do not have an adequate stand on 50 acres by the date coverage ends for this option because an insured cause has damaged the stand. Your Winter Coverage Option payment would be calculated as follows:
(1)60 percent × 50 pound production guarantee = 30 pound production guarantee per acre;
(2)30 pound production guarantee per acre × 50 acres without an adequate stand = 1,500 pounds;
(3)1,500 pounds × $12 price election = $18,000; and
(4)$18,000 × 100 percent share = $18,000 Winter Coverage Option payment.
(m)In lieu of section 11(d) of these Crop Provisions, the population of live mint plants to be counted from insurable acreage on the unit will be not less than the population of live mint plants in an adequate stand for acreage:
(1)That is abandoned;
(2)That is put to another use without our consent;
(3)For which you fail to meet the requirements contained in section 13(h); or
(4)That is damaged solely by uninsured causes.
(n)Acreage for which a Winter Coverage Option payment has been made is no longer insurable under the Crop Provisions for the current crop year. Any mint production subsequently harvested from uninsured acreage for the crop year and not kept separate from production from insured acreage will be considered production to count.
(o)Acreage for which a Winter Coverage Option payment has been made will receive an amount of production of zero when computing subsequent year's approved yield.
(p)Sections 11(e), (f), and
(g)of these Crop Provisions do not apply to this option. Signed in Washington, DC, on April 25, 2007. Eldon Gould, Manager, Federal Crop Insurance Corporation. [FR Doc. E7-8340 Filed 5-2-07; 8:45 am] BILLING CODE 3410-08-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 966 [Docket No. AMS-FV-06-0208; FV07-966-1 FIR] Tomatoes Grown in Florida; Change in Handling Requirements AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture
(USDA)is adopting, as a final rule, without change, an interim final rule changing the handling requirements currently prescribed under the Florida Tomato marketing order (order). The order regulates the handling of tomatoes grown in Florida, and is administered locally by the Florida Tomato Committee (Committee). This rule continues in effect the action that limited the use of inverted lids on tomato containers to the handler whose information initially appeared on the lid. This rule helps ensure that lids do not contain the information for more than one active handler and aids in maintaining the positive identification and traceability of Florida tomatoes. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: William Pimental, Marketing Specialist; or Christian Nissen, Regional Manager, Southeast Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(863)324-3375, Fax:
(863)325-8793, or E-mail: *William.Pimental@usda.gov* or *Christian.Nissen@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule continues in effect the action that changed the handling requirements currently prescribed under the order. This rule continues to limit the use of inverted lids on tomato containers to the handler whose information initially appeared on the lid. This rule helps ensure that lids do not contain the information for more than one active handler and aids in maintaining the positive identification and traceability of Florida tomatoes. This action was unanimously recommended by the Committee at a meeting on October 4, 2006. Section 966.52 of the order provides the authority to establish pack and container requirements for tomatoes grown under the order. This includes fixing the size, weight, capacity, dimensions, markings, or pack of the container or containers which may be used in the handling of tomatoes. Section 966.323 of the order's administrative rules prescribes the handling regulations for Florida tomatoes. Section 966.323(a)(3) delineates the requisite container requirements for weight, markings, and appearance. The section specifies, in part, that each container or lid must show the name and address of the registered handler. The majority of Florida tomatoes are packed in containers that have a separate lid. Most lids are preprinted with the handler's name and address. In addition, most lids can be inverted by reversing the lid so the blank side is on the outside, and the preprinted information is flipped to the underside of the lid. This is done so new information can be printed on the lid. This rule amends § 966.323(a)(3) by limiting the use of inverted lids on tomato containers to the handler whose information first appeared on the lid. Inverted lids have been used in minimal quantities in past seasons, usually when a tomato packing operation was purchased by another entity. Any containers included in the purchase could be used by the purchasing handler by inverting the lids so the purchaser's information could be affixed on the clean side. Usually there were not many containers remaining, so the containers requiring inverted lids were fairly limited in quantity. Recently, container sales companies have started offering their container overruns at discounted prices to tomato handlers. These containers usually have preprinted handler and product information on the lids. The Committee is concerned this could significantly increase the number of inverted lids being used by the industry and could pose problems with the positive identification and traceability of tomatoes. In their discussion of this issue, the Committee agreed the ability to positively identify product is a necessity in today's marketplace. The Committee expressed concern that the practice of inverting lids could result in misidentification and confusion in cases where tomatoes need to be traced back to their origin. The Committee recognized that in the past, most of the containers being used with an inverted lid were associated with a handler purchasing another operation. Consequently, the original owner of the lid was no longer in business, and the container was only printed with the information for one active handler. This would not be the case with handlers using overrun containers. The overrun containers being made available are containers produced in excess of orders, with the majority preprinted with handler information. Therefore, once inverted, the lids on the overrun containers would be printed with the information for two active handlers. The Committee is concerned that having multiple handler information on a container, even with the lid inverted, could pose problems when trying to track tomatoes back to the original handler. The Committee believes it is of critical importance that Florida tomatoes can be traced from the farm to the end-user. Proper handler identification on a container is an important part of this traceability. Allowing the use of containers with an active registered handler's information on the exterior of the lid and another on the interior could allow for misidentification and confusion in product identification. The Committee believes by limiting the use of inverted lids to the handler whose name originally appeared on the lid, positive identification and traceability is better maintained. In addition, in cases related to marketing order compliance, it is also important to be able to identify the original source of tomatoes. Allowing the use of inverted lids could result in the intentional misrepresentation of the origin of the tomatoes. The box lids could be re-inverted to display the handler information originally printed on the box without that handler's knowledge. Limiting the use of inverted lids on tomato containers by anyone other than the handler whose information first appeared on the lid helps alleviate any misidentification or uncertainty in product identification. Section 8e of the Act provides that when certain domestically produced commodities, including tomatoes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. As this rule changes the container requirements under the domestic handling regulations, no corresponding change to the import regulations is required. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 100 producers of tomatoes in the production area and approximately 70 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration
(SBA)as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000 (13 CFR 121.201). Based on industry and Committee data, the average annual price for fresh Florida tomatoes during the 2005-06 season was approximately $10.27 per 25-pound container, and fresh shipments totaled 47,880,303 25-pound cartons of tomatoes. Committee data indicates approximately 27 percent of the handlers handle 95 percent of the total volume shipped outside the regulated area. Based on the average price, about 75 percent of handlers could be considered small businesses under SBA's definition. In addition, based on production, grower prices as reported by the National Agricultural Statistics Service, and the total number of Florida tomato growers, the average annual grower revenue is below $750,000. Thus, the majority of handlers and producers of Florida tomatoes may be classified as small entities. This rule continues in effect the action that changed the handling requirements currently prescribed under the order. This rule continues to limit the use of inverted lids on tomato containers to the handler whose information initially appeared on the lid. This rule helps ensure that lids do not contain the information for more than one active handler and aids in maintaining the positive identification and traceability of Florida tomatoes. This rule revises § 966.323(a)(3), which specifies the requisite container requirements. Authority for this action is provided in § 966.52 of the order. The Committee unanimously recommended this change at a meeting held on October 4, 2006. At the meeting, the Committee discussed the impact of this change on handlers in terms of cost. This rule could result in a slight increase in cost for handlers that were considering purchasing the container overruns. However, Committee members stated that plain containers are readily available on the market at reasonable prices. Consequently, the difference in cost between a discounted overrun container and a plain blank container should be minimal. In addition, last season the industry packed more than 47 million cartons of tomatoes. The available quantities of overrun containers are limited, confining the cost benefit to those containers available. When compared to the total containers needed, the overall cost savings associated with using overrun cartons would be negligible. Also, in previous seasons, overrun containers were not available for purchase. Therefore, container cost for all handlers should be similar to those in previous seasons. Further, this rule provides the benefit of helping to maintain the traceability and proper identification of Florida tomatoes, which outweighs the minor cost savings associated with using overrun containers. The costs and benefits of this rule are not expected to be disproportionately different for small or large entities. One alternative to this action was to allow the use of inverted lids. However, Committee members agreed that having the information for more than one active handler appear on a carton was confusing and could make traceability and proper identification difficult. Therefore, this alternative was rejected. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. This action will not impose any additional reporting or recordkeeping requirements on either small or large tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. Further, the Committee's meeting was widely publicized throughout the Florida tomato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the October 4, 2006, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. An interim final rule concerning this action was published in the **Federal Register** on February 6, 2007. Copies of the rule were mailed by the Committee's staff to all Committee members and tomato handlers. In addition, the rule was made available through the Internet by USDA and the Office of the **Federal Register** . That rule provided for a 60-day comment period which ended April 9, 2007. No comments were received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the **Federal Register** (72 FR 5327, February 6, 2007) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 966 Marketing agreements, Reporting and recordkeeping requirements, Tomatoes. PART 966—TOMATOES GROWN IN FLORIDA Accordingly, the interim final rule amending 7 CFR part 966 which was published at 72 FR 5327 on February 6, 2007, is adopted as a final rule without change. Dated: April 27, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-8459 Filed 5-2-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1308 [Docket No. DEA-301F] Schedules of Controlled Substances: Placement of Lisdexamfetamine Into Schedule II AGENCY: Drug Enforcement Administration, Department of Justice. ACTION: Final Rule. SUMMARY: With the issuance of this final rule, the Deputy Administrator of the Drug Enforcement Administration
(DEA)places the substance lisdexamfetamine, including its salts, isomers and salts of isomers into schedule II of the Controlled Substances Act (CSA). As a result of this rule, the regulatory controls and criminal sanctions of schedule II will be applicable to the manufacture, distribution, dispensing, importation and exportation of lisdexamfetamine and products containing lisdexamfetamine. EFFECTIVE DATE: June 4, 2007. FOR FURTHER INFORMATION CONTACT: Christine A. Sannerud, PhD, Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537,
(202)307-7183. SUPPLEMENTARY INFORMATION: Lisdexamfetamine is a central nervous system stimulant drug. On February 23, 2007, the Food and Drug Administration
(FDA)approved lisdexamfetamine for marketing under the trade name Vyvanse TM . Lisdexamfetamine will be marketed as a prescription drug product for the treatment of Attention Deficit Hyperactivity Disorder (ADHD). Lisdexamfetamine is an amide ester conjugate comprised of the amino acid L-lysine covalently bound to the amino group of d-amphetamine. The chemical name of its dimesylate salt form is (2S)-2,6-diamino-N-[(1S)-1-methyl-2-phenethyl]hexanamide dimethanesulfonate (CAS number 608137-32-3). Lisdexamfetamine per se is pharmacologically inactive and its effects are due to its in vivo metabolic conversion to d-amphetamine. Lisdexamfetamine is a new molecular entity and has not been marketed in the United States or other countries. Therefore, there has been no evidence of diversion, abuse, or law enforcement encounters involving lisdexamfetamine. On November 14, 2006, the Assistant Secretary for Health, Department of Health and Human Services (DHHS), sent the Deputy Administrator of DEA a scientific and medical evaluation and a letter recommending that lisdexamfetamine be placed into schedule II of the CSA. Enclosed with the November 14, 2006, letter was a document prepared by the FDA entitled, “Basis for the Recommendation for Control of Lisdexamfetamine in Schedule II of the Controlled Substances Act (CSA).” The document contained a review of the factors which the CSA requires the Secretary to consider (21 U.S.C. 811(b)). After a review of the available data, including the scientific and medical evaluation and the scheduling recommendation received from DHHS, the Deputy Administrator of the DEA, in a February 22, 2007, Notice of Proposed Rulemaking (72 FR 7945), proposed placement of lisdexamfetamine into schedule II of the CSA. The proposed rule provided an opportunity for all interested persons to submit their written comments to be postmarked and electronic comments be sent on or before March 26, 2007. Comments Received The DEA received two comments in response to the Notice of Proposed Rulemaking. One commenter stated that monthly visits to obtain refills for Concerta ®—like drugs used in children are very expensive and the law needs to be changed. DEA notes that statutory requirements for schedule II drugs do not permit prescription refills. DEA does not regulate the size of each prescription or the frequency of medical visits; these matters are within the purview of prescribing physician. DEA has no authority regarding either the cost of medical care or the cost of the medications a prescribing practitioner may prescribe. Another commenter requested the name of the company that filed the New Drug Application for lisdexamfetamine in order to obtain standard analytical reference material and/or analytical data from the company. This comment is not relevant to the present scheduling action. Scheduling of Lisdexamfetamine Relying on the scientific and medical evaluation and the recommendation of the Acting Assistant Secretary for Health, received in accordance with section 201(b) of the Act (21 U.S.C. 811(b)), and the independent review of the available data by DEA, and after a review of the comments received in response to the Notice of Proposed Rulemaking, the Deputy Administrator of DEA, pursuant to sections 201(a) and 201(b) of the Act (21 U.S.C. 811(a) and 811(b)), finds that:
(1)Lisdexamfetamine has a high potential for abuse;
(2)Lisdexamfetamine has a currently accepted medical use in treatment in the United States; and
(3)Abuse of lisdexamfetamine may lead to severe psychological or physical dependence. Based on these findings, the Deputy Administrator of DEA concludes that lisdexamfetamine, including its salts, isomers, and salts of isomers, warrants control in schedule II of the CSA. The applicable regulations are as follows: *Registration.* Any person who manufactures, distributes, dispenses, imports, exports, engages in research or conducts instructional activities with lisdexamfetamine, or who desires to manufacture, distribute, dispense, import, export, engage in instructional activities or conduct research with lisdexamfetamine, must be registered to conduct such activities in accordance with Part 1301 of Title 21 of the Code of Federal Regulations. Any person who is currently engaged in any of the above activities and is not registered with DEA must submit an application for registration on or before June 4, 2007 and may continue their activities until DEA has approved or denied that application. *Security.* Lisdexamfetamine is subject to schedule II security requirements and must be manufactured, distributed and stored in accordance with §§ 1301.71, 1301.72(a), (c), and (d), 1301.73, 1301.74, 1301.75(b) and (c), 1301.76 and 1301.77 of Title 21 of the Code of Federal Regulations on or after June 4, 2007. *Labeling and Packaging.* All labels and labeling for commercial containers of lisdexamfetamine must comply with requirements of §§ 1302.03-1302.07 of Title 21 of the Code of Federal Regulations on or after June 4, 2007. *Quotas.* Quotas for lisdexamfetamine must be established pursuant to part 1303 of Title 21 of the Code of Federal Regulations. *Inventory.* Every registrant required to keep records and who possesses any quantity of lisdexamfetamine must keep an inventory of all stocks of lisdexamfetamine on hand pursuant to §§ 1304.03, 1304.04 and 1304.11 of Title 21 of the Code of Federal Regulations on or after June 4, 2007. Every registrant who desires registration in schedule II for lisdexamfetamine must conduct an inventory of all stocks of the substance on hand at the time of registration. *Records.* All registrants must keep records pursuant to §§ 1304.03, 1304.04, 1304.21, 1304.22, and 1304.23 of Title 21 of the Code of Federal Regulations on or after June 4, 2007. *Reports.* All registrants required to submit reports to the Automation of Reports and Consolidated Order System (ARCOS) in accordance with § 1304.33 of Title 21 of the Code of Federal Regulations must do so for lisdexamfetamine. *Orders for Lisdexamfetamine.* All registrants involved in the distribution of lisdexamfetamine must comply with the order requirements of part 1305 of Title 21 of the Code of Federal Regulations on or after June 4, 2007. *Prescriptions.* All prescriptions for lisdexamfetamine or prescriptions for products containing lisdexamfetamine must be issued pursuant to 21 CFR 1306.03-1306.06 and 1306.11-1306.15. *Importation and Exportation.* All importation and exportation of lisdexamfetamine must be in compliance with part 1312 of Title 21 of the Code of Federal Regulations on or after June 4, 2007. *Criminal Liability.* Any activity with lisdexamfetamine not authorized by, or in violation of, the Controlled Substances Act or the Controlled Substances Import and Export Act shall be unlawful on or after June 4, 2007. Regulatory Certifications Executive Order 12866 In accordance with the provisions of the CSA (21 U.S.C. 811(a)), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of 5 U.S.C. 556 and 557 and, as such, are exempt from review by the Office of Management and Budget pursuant to Executive Order 12866, section 3(d)(1). Regulatory Flexibility Act The Deputy Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this final rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. Lisdexamfetamine products will be prescription drugs used for the treatment of Attention Deficit Hyperactivity Disorder (ADHD). Handlers of lisdexamfetamine also handle other controlled substances used to treat ADHD which are already subject to the regulatory requirements of the CSA. Executive Order 12988 This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform. Executive Order 13132 This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $120,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under provisions of the Unfunded Mandates Reform Act of 1995. Congressional Review Act This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 21 CFR Part 1308 Administrative practice and procedure, Drug traffic control, Narcotics, Prescription drugs. Under the authority vested in the Attorney General by section 201(a) of the CSA (21 U.S.C. 811(a)), and delegated to the Administrator of DEA by Department of Justice regulations (28 CFR 0.100), and redelegated to the Deputy Administrator pursuant to 28 CFR 0.104, the Deputy Administrator hereby amends 21 CFR part 1308 as follows: PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES 1. The authority citation for 21 CFR part 1308 continues to read as follows: Authority: 21 U.S.C. 811, 812, 871(b) unless otherwise noted. 2. Section 1308.12 is amended by adding a new paragraph (d)(5) to read as follows: § 1308.12 Schedule II.
(d)* * *
(5)Lisdexamfetamine, its salts, isomers, and salts of its isomers—1205. Dated: April 25, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7-8421 Filed 5-2-07; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05-07-047] RIN 1625-AA-09 Drawbridge Operation Regulations; Intracoastal Waterway (ICW); Inside Thorofare, Atlantic City, NJ AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Fifth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the U.S. 40-322 (Albany Avenue) Bridge, at ICW mile 70.0, across Inside Thorofare at Atlantic City, New Jersey. This deviation allows the drawbridge to remain closed-to-navigation from 10 a.m. to 5 p.m. on August 15, 2007, to facilitate traffic control during the Atlantic City Air Show. DATES: This deviation is effective from 10 a.m. to 5 p.m. on August 15, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is
(757)398-6222. Commander (dpb), Fifth Coast Guard District maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, at
(757)398-6222. SUPPLEMENTARY INFORMATION: The U.S. 40-322 (Albany Avenue) Bridge, a lift drawbridge, has a vertical clearance in the closed position to vessels of 10 feet, above mean high water. The Atlantic City Regional Mainland Chamber of Commerce, on behalf of the bridge owner the New Jersey Department of Transportation, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.733(f) to close the drawbridge to navigation for the sole purpose of traffic control during the Atlantic City Air Show that is scheduled for Wednesday, August 15, 2007. To facilitate traffic control during the Atlantic City Air Show, the U.S. 40-322 (Albany Avenue) Bridge will be maintained in the closed-to-navigation position from 10 a.m. to 5 p.m. on August 15, 2007. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: April 24, 2007. Waverly W. Gregory, Jr., Chief, Bridge Administration Branch, Fifth Coast Guard District. [FR Doc. E7-8493 Filed 5-2-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD08-07-010] RIN 1625-AA11 Regulated Navigation Area; Cumberland River, Clarksville, TN AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a Regulated Navigation Area
(RNA)on the Cumberland River
(CMR)mile marker
(MM)126 to mile marker MM 127. All vessel traffic transiting beneath the R.J. Corman Railroad Bridge at MM 126.5 is restricted to the right descending bank
(RDB)on the CMR and tows transiting this RNA cannot be wider than 80 feet or longer than 800 feet, excluding the length of the tow boat. DATES: This temporary rule is effective from 4:40 p.m. on March 31, 2007 through 11:30 a.m. August 2, 2007. ADDRESSES: The Coast Guard is not soliciting comments on this temporary RNA. However, you may mail comments and related material to Coast Guard Sector Ohio Valley, 600 Martin Luther King Drive, Louisville, KY 40202, attention: Prevention Department. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Coast Guard Sector Ohio Valley between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CDR Greg Howard, Coast Guard Sector Ohio Valley, telephone
(502)779-5422. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 United States Code
(USC)553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM and under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective immediately. The R.J. Corman Railroad Bridge on the Cumberland River was struck by a barge and was severely damaged. This RNA is needed to prevent further damage to the bridge and to protect vessels transiting under the bridge. Background and Purpose On March 29, 2007 at approximately 11:15 p.m., the R.J. Corman Railroad Bridge, located at MM 126.5 on the Cumberland River
(CMR)was struck by a barge being pushed by a towing vessel. The bridge sustained extensive damage. The Coast Guard set a safety zone at 7 p.m. on March 30, 2007 on the CMR from MM 126 through MM 127 halting all vessel traffic until the structural integrity of the bridge was evaluated. The operator of the bridge reported to the Coast Guard that the bridge damage was isolated to the left descending bank
(LDB)bridge pier of the bridge above the waterline. The bridge operator also informed the Coast Guard that vessels could safely transit under the bridge on the right descending bank
(RDB)of the CMR. The Coast Guard is restricting vessel movements to the RDB and is limiting tow sizes to ensure that vessels pass safely under the bridge and do not cause additional damage to the bridge. Discussion of Rule The Coast Guard is establishing a Regulated Navigation Area
(RNA)on the CMR mile marker
(MM)126 to mile marker MM 127. All vessel traffic transiting beneath the R.J. Corman Railroad Bridge at MM 126.5 is restricted to the RDB on the CMR and tows transiting this RNA cannot be wider than 80 feet or longer than 800 feet, excluding the length of the tow boat. This RNA is effective from 4:40 p.m. on March 31, 2007 through 11:30 a.m. August 2, 2007. This RNA may be cancelled earlier if the Coast Guard determines that it is safe for vessel traffic to transit under the bridge span adjacent to the LDB. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. Commercial vessel traffic including tow and barge traffic is being allowed to move through this RNA and this RNA will be cancelled when the Coast Guard determines that it is safe to open traffic to both sides of the R.J. Corman Railroad Bridge. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This RNA will not have an impact on a substantial number of small entities because this rule will not significantly impact the regular flow of commercial vessel traffic conducting business within the RNA. Further, the RNA will not have a significant impact because it will be in place for a limited period of time. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to Coast Guard Sector Ohio Valley at the address listed under ADDRESSES explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this 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 Sector Ohio Valley at
(502)779-5412. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule fits in paragraph (34)(g) because it is a regulated navigation area. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T08-826 to read as follows: § 165.T08-826 Cumberland River, TN-regulated navigation area.
(a)The following is a Regulated Navigation Area (RNA): all waters of the Cumberland River
(CMR)from MM 126 CMR to MM 127 CMR.
(b)Within the RNA described in paragraph (a), vessels are restricted to the right descending bank
(RDB)of the Cumberland River and tows cannot be wider than 80 feet or longer than 800 feet, excluding the length of the tow boat.
(c)This rule is effective from 4:40 p.m. on March 31, 2007 through 11:30 a.m. August 2, 2007. Dated: 17 April, 2007. J.R. Whitehead, Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District. [FR Doc. E7-7951 Filed 5-2-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY 48 CFR Parts 3001, 3002 and 3033 [Docket No. DHS-2007-0001] RIN 1601-AA42 Department of Homeland Security Acquisition Regulation: Board of Contract Appeals Change AGENCY: Department of Homeland Security. ACTION: Final rule. SUMMARY: The Department of Homeland Security
(DHS)has adopted as final, without change, an interim rule amending the Homeland Security Acquisition Regulation
(HSAR)to reflect a statutorily-mandated jurisdictional change for the agency Board of Contract Appeals (BCA). Specifically, BCA jurisdiction for DHS has transferred from the U.S. Department of Transportation Board of Contract Appeals to the Civilian Board of Contract Appeals. This rule also adopts as final, without change, several non-substantive amendments to DHS acquisition regulations in order to reflect organizational changes. DATES: This rule is effective May 3, 2007. FOR FURTHER INFORMATION CONTACT: Anne Terry, Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy,
(202)447-5253. SUPPLEMENTARY INFORMATION: I. Background II. Discussion of Public Comments III. Regulatory Analyses A. Executive Order 12866 Assessment B. Regulatory Flexibility Act I. Background DHS published an interim rule at 72 FR 1296 on January 11, 2007, to provide notice of HSAR changes that reflect a statutorily-mandated jurisdictional change for the agency Board of Contract Appeals (BCA). Specifically, BCA jurisdiction for DHS transferred from the U.S. Department of Transportation Board of Contract Appeals to the newly established Civilian Board of Contract Appeals (CBCA). In the National Defense Authorization Act for Fiscal Year 2006, Congress established the CBCA and terminated every agency BCA, except for those within the armed services, the Tennessee Valley Authority, and the U.S. Postal Service. *See* Public Law 109-163, section 847. Through January 5, 2007, the U.S. Department of Transportation's BCA handled DHS contract appeals. As of January 6, 2007, the CBCA handles DHS contract appeals. This rule also provides technical amendments to correct organizational information reflected in the HSAR. II. Discussion of Public Comments DHS received one public comment on the interim rule. The comment, however, did not address matters within the scope of the interim rule. DHS has adopted the interim rule as a final rule without change. III. Regulatory Analyses A. Executive Order 12866 Assessment DHS has determined that this final rule is neither a major rule under 5 U.S.C. 804 nor a significant regulatory action under Executive Order 12866, Regulatory Planning and Review. It therefore does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order, and the Office of Management and Budget has not reviewed it. B. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This final rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. List of Subjects in 48 CFR Parts 3001, 3002, and 3033 Government procurement. Authority and Issuance Accordingly, for the reasons stated in the preamble, the interim rule amending 48 CFR parts 3001, 3002, and 3033 that was published at 72 FR 1296 on January 11, 2007, is adopted as a final rule without change. Dated: April 25, 2007. Elaine C. Duke, Chief Procurement Officer. [FR Doc. E7-8420 Filed 5-2-07; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 107 [Docket No. PHMSA-2006-25589 (HM-208F)] RIN 2137-AE11 Hazardous Materials Transportation; Miscellaneous Revisions to Registration and Fee Assessment Program AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. SUMMARY: PHMSA is amending the statutorily mandated registration and fee assessment program for persons who transport or offer for transportation certain categories and quantities of hazardous materials. In this final rule, we are eliminating the 24-hour, seven-days-per-week telephonic expedited registration option because it is no longer necessary now that there is an internet option. In addition, we are adopting an explicit exception from registration requirements for Indian Tribes. We are not increasing registration fees in this final rule. DATES: This final rule is effective June 30, 2007. FOR FURTHER INFORMATION CONTACT: Deborah Boothe, Office of Hazardous Materials Standards,
(202)366-8553, or David Donaldson, Office of Hazardous Materials Planning and Analysis,
(202)366-4484, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation. SUPPLEMENTARY INFORMATION: I. Background On August 15, 2006, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice of proposed rulemaking
(NPRM)to amend the statutorily mandated registration and fee assessment program for persons who transport or offer for transportation certain categories and quantities of hazardous materials. (71 FR 46884) In the NPRM, PHMSA proposed to: —Increase the fee to $1,975 (plus a $25 administrative fee) for registration year 2007-2008 for those registrants not qualifying as a small business or not for profit organizations; —Increase the fee to $2,975 (plus a $25 administrative fee) for registration year 2008-2009 and following for those registrants not qualifying as small businesses or not for profit organizations; —Eliminate the 24-hour, seven-days-per-week telephonic expedited registration option; —Incorporate Indian Tribes into the list of entities specifically excepted from the registration requirements; and —Raise the current $1,000 baseline penalty assessment for offerors and carriers of hazardous materials (other than small businesses) that fail to register and pay a registration fee. II. Registration Fee Increase The Hazardous Materials and Emergency Preparedness
(HMEP)grants program, as mandated by 49 U.S.C. 5116, provides Federal financial and technical assistance to States and Indian tribes to “develop, improve, and carry out emergency plans” within the National Response System and the Emergency Planning and Community Right-To-Know Act of 1986 (Title III), 42 U.S.C. 11001 *et seq.* The grants are used to develop, improve, and implement emergency plans; to train public sector hazardous materials emergency response employees to respond to accidents and incidents involving hazardous materials; to determine flow patterns of hazardous materials within a State and between States; and to determine the need within a State for regional hazardous materials emergency response teams. The HMEP grants program is funded by registration fees collected from persons who offer for transportation or transport certain hazardous materials in intrastate, interstate, or foreign commerce. Congress reauthorized the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 *et seq.* ) in 2005 through the “Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005” (Title VII of the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), Public Law 109-59, 119 Stat. 1144, August 10, 2005). The Act made available $28.3 million for the HMEP grants program and lowered the maximum registration fee from $5,000 to $3,000. Consistent with SAFETEA-LU, the Administration's Fiscal Year 2007 budget proposal to Congress requested $28,000,000 in support of HMEP activity. The August 2006 NPRM proposed to increase registration fees to meet the Administration's FY 2007 request for funding the HMEP. Section 2 of the Continuing Appropriations Resolution, 2007 (Pub. L. 109-289, division B), as amended by Public Laws 109-369 and 109-383, (“Revised Continuing Appropriation Resolution, 2007”), limited obligations for the HMEP grants program to the FY 2006 level of $14.3 million. Therefore, we are not adopting the proposed fee increase in this final rule. The Administration's FY 2008 budget requested $28.3 million to fund the HMEP grants program. Depending on available and appropriated funding for the FY 2008 program, we may initiate a future rulemaking to adjust the registration fee for FY 2008. III. Discussion of Comments and Regulatory Changes PHMSA received more than 900 written comments to the NPRM from emergency response organizations, state and local emergency planning organizations, industry associations representing a broad spectrum of businesses that offer or transport hazardous materials, and individuals engaged in agricultural retailing, petroleum distribution, and petroleum marketing. Most of these comments addressed the proposed increase in registration fees. Only one commenter addressed the proposal to raise the baseline penalty assessment. One commenter addressed the proposal in the NPRM to eliminate the expedited registration option; no commenters addressed the proposed exception from registration for Indian tribes. A. Baseline Penalty Assessment We considered raising the current $1,000 baseline penalty assessment for offerors and carriers of hazardous materials (other than small businesses) that fail to register and pay a registration fee. We proposed to adjust the baseline penalty assessment to keep it proportional to the increased registration fee. Only one commenter, National Tank Truck Carriers (NTTC), addressed this proposal. NTTC urged the agency not to distinguish among violators on the basis of size. PHMSA decided to not adjust the civil penalty in this proceeding. We may revisit this issue in a later rulemaking proceeding. B. Expedited Registration Process Since the beginning of the registration program in 1992, we have provided a 24-hour, seven-days-a-week expedited telephonic registration option. Persons using this option are provided a temporary registration number and must pay an additional $50 expedited processing fee. With the addition of the Internet registration option in 2000, the number of registrants using the expedited registration option has steadily decreased. Only 194 persons, out of a total of 35,005 registrants, used the expedited telephonic registration option during calendar year 2006. In the NPRM, we proposed to discontinue the expedited registration option. PHMSA received one comment on the proposal. The Petroleum Transportation and Storage Association
(PTSA)suggested that expedited telephonic registration should be retained as an option in case the on-line capability is unavailable, as has sometimes happened. The addition of the internet registration option has made the telephonic expedited registration option obsolete. The internet registration option is faster and more efficient. It is no longer cost-effective for PHMSA to continue maintaining a registration option so few persons use. Moreover, the Internet option is more cost-effective for registrants since there is no additional fee for the Internet service. We understand PTSA's concern about possible system down times and consequent unavailability of the system to registrants; however, we do not agree that this infrequent occurrence warrants retaining the 24-hour, seven days-per-week expedited telephonic registration option. Further, we have enhanced the internet payment procedures to minimize the difficulties previously encountered in verifying payments. Therefore, we are adopting the proposal to eliminate the expedited telephonic registration option for those required to register and pay a registration fee. C. Indian Tribes Exception Section 107.606(a) of the Hazardous Materials Regulations
(HMR)lists the entities excepted from the registration requirements set out in section 5108 of the Federal hazmat law. SAFETEA-LU amended section 5108(i)(2)(B) to add Indian tribes to the list of entities specifically excepted from the registration requirements. In the NPRM, we proposed to incorporate this specific exception into the HMR. As a matter of policy, PHMSA has not been enforcing the registration requirements against Indian tribes. We did not receive any comments on this proposal; therefore, we are adopting it as proposed. IV. Rulemaking Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule is published under the authority of the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 *et seq.* , as amended by Pub. L. 109-59) and 49 U.S.C. 44701. Section 5108 of the Federal hazmat law authorizes the Secretary of Transportation to establish a registration program to collect fees to fund HMEP grants. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not subject to review by the Office of Management and Budget. This final rule is considered non-significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Neither of the provisions adopted in this final rule will result in additional costs to the regulated community. C. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria established in Executive Order 13132 (“Federalism”). This final rule does not preempt State, local, and Indian tribe requirements, and it does not have substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. D. Executive Order 13175 This final rule has been analyzed in accordance with the principles and criteria established in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have adverse tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply. E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each agency to analyze regulations and assess their impact on small businesses and other small entities to determine whether the rule is expected to have a significant impact on a substantial number of small entities. Although the entities affected by this rule are mostly small businesses, neither of the provisions adopted in this final rule will result in additional costs to the regulated community. PHMSA certifies this rule will not have a significant economic impact on a substantial number of small entities. F. Unfunded Mandates Reform Act of 1995 This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more, in the aggregate, to any of the following: State, local, or Native American tribal governments, or the private sector. G. Paperwork Reduction Act Under 49 U.S.C. 5108(i), the information management requirements of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ) do not apply to this final rule. H. Regulation Identifier Number
(RIN)A regulation identifier number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda. I. National Environmental Policy Act The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to evaluate the consequences of their actions on the environment. PHMSA has concluded there are no significant environmental impacts associated with this final rule. This rule makes only minor revisions to the registration fee and assessment program, with no resulting effects on the human environment. J. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov.* List of Subjects in 49 CFR Part 107 Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements. In consideration of the foregoing, 49 CFR part 107 is amended as follows: PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES 1. The authority citation for part 107 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section 4 (28 U.S.C. 2461 note); Pub. L. 104-121 Sections 212-213; Pub. L. 104-134 Section 30001; 49 CFR 1.45, 1.53. 2. In § 107.606, redesignate paragraphs (a)(4), (a)(5), and (a)(6), as (a)(5), (a)(6), and (a)(7) respectively, add new paragraph (a)(4), and revise newly redesignated paragraph (a)(5) to read as follows: § 107.606 Exceptions.
(a)* * *
(4)An Indian tribe.
(5)An employee of any of those entities in paragraphs (a)(1) through (a)(4) of this section with respect to the employee's official duties. § 107.616 [Amended] 3. In § 107.616, make the following changes: a. Amend the first sentence in paragraph
(a)by removing the phrase “Except as provided in paragraph
(d)of this section,”. b. Remove paragraph (d). Issued in Washington, DC on April 25, 2007, under authority delegated in 49 CFR part 1. Thomas J. Barrett, Administrator. [FR Doc. E7-8394 Filed 5-2-07; 8:45 am] BILLING CODE 4910-60-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No.070430095-7095-01; I.D. 042707D] RIN 0648-AV56 Fisheries Off West Coast States and in the Western Pacific; West Coast Salmon Fisheries; 2007 Management Measures AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; annual management measures for the ocean salmon fishery; request for comments. SUMMARY: NMFS establishes fishery management measures for the 2007 ocean salmon fisheries off Washington, Oregon, and California and the 2008 salmon seasons opening earlier than May 1, 2008. Specific fishery management measures vary by fishery and by area. The measures establish fishing areas, seasons, quotas, legal gear, recreational fishing days and catch limits, possession and landing restrictions, and minimum lengths for salmon taken in the U.S. exclusive economic zone (EEZ)(3-200 nm) off Washington, Oregon, and California. The management measures are intended to prevent overfishing and to apportion the ocean harvest equitably among treaty Indian, non-treaty commercial, and recreational fisheries. The measures are also intended to allow a portion of the salmon runs to escape the ocean fisheries in order to provide for spawning escapement and to provide for inside fisheries (fisheries occurring in state internal waters). DATES: Effective from 0001 hours Pacific Daylight Time, May 1, 2007, until the effective date of the 2008 management measures, as published in the **Federal Register** . Comments must be received by May 18, 2007. ADDRESSES: Comments on the management measures may be sent to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way N.E., Seattle, WA 98115-0070, fax: 206-526-6376; or to Rod McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, fax: 562-980-4018. Comments can also be submitted via e-mail at the *2007oceansalmonregs.nwr@noaa.gov* address, or through the internet at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments, and include docket number and/or RIN number in the subject line of the message. Copies of the supplemental Finding of No Significant Impact (FONSI) and its supporting Environmental Assessment and other documents cited in this document are available from Dr. Donald O. McIsaac, Executive Director, Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384, and are posted on its website ( *www.pcouncil.org* ). Send comments regarding the reporting burden estimate or any other aspect of the collection-of-information requirements in these management measures, including suggestions for reducing the burden, to one of the NMFS addresses listed above and to David Rostker, Office of Management and Budget (OMB), by email at *David_Rostker@omb.eop.gov* , or by fax at (202)395-7285. FOR FURTHER INFORMATION CONTACT: Sarah McAvinchey at 206-526-4323, or Eric Chavez at 562-980-4064. SUPPLEMENTARY INFORMATION: Background The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the **Federal Register** . These management measures for the 2007 and pre-May 2008 ocean salmon fisheries were recommended by the Pacific Fishery Management Council (Council) at its April 2 to 6, 2007, meeting. Schedule Used to Establish 2007 Management Measures The Council announced its annual preseason management process for the 2007 ocean salmon fisheries in the **Federal Register** on December 22, 2006 (71 FR 76958) and on their website at ( *www.pcouncil.org* ). This notice announced the availability of Council documents as well as the dates and locations of Council meetings and public hearings comprising the Council′s complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures. The agendas for the March and April Council meetings were published in the **Federal Register** prior to the actual meetings. In accordance with the Salmon FMP, the Council's Salmon Technical Team
(STT)and staff economist prepared a series of reports for the Council, its advisors, and the public. The first of the reports was prepared in February when the scientific information necessary for crafting management measures for the 2007 and pre-May 2008 ocean salmon fishery first became available. The first report, “Review of 2006 Ocean Salmon Fisheries” (REVIEW), summarizes biological and socio-economic data for the 2006 ocean salmon fisheries and assesses how well the Council′s 2006 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis for 2007 Ocean Salmon Fisheries” (PRE I), provides the 2007 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2006 regulations and regulatory procedures were applied to the projected 2007 stock abundances. The completion of PRE I is the initial step in evaluating the full suite of preseason options. The Council met in Sacramento, CA from March 5 to 9, 2007, to develop 2007 management options for proposal to the public. The Council proposed three options of commercial and recreational fisheries management for analysis and public comment. These options consisted of various combinations of management measures designed to protect weak stocks of coho and Chinook salmon and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council′s STT and staff economist prepared a third report, “Preseason Report II Analysis of Proposed Regulatory Options for 2007 Ocean Salmon Fisheries,” which analyzes the effects of the proposed 2007 management options. This report was made available to the Council, its advisors, and the public. Public hearings, sponsored by the Council, to receive testimony on the proposed options were held on March 26, 2007, in Westport, WA and Coos Bay, OR; and March 27, 2007, in Santa Rosa, CA. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state′s Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office. The Council met from April 2 to 6, 2007, in Seatac, WA to adopt its final 2007 recommendations. Following the April Council meeting, the Council′s STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2007 Ocean Salmon Fisheries,” which analyzes the environmental and socio-economic effects of the Council′s final recommendations. This report was also made available to the Council, its advisors, and the public. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter and also posted them on the Council website ( *www.pcouncil.org* ). Resource Status Since 1989, NOAA Fisheries Service has listed under the Endangered Species Act
(ESA)27 evolutionarily significant units
(ESUs)of salmonids on the west coast. As the listings have occurred, NOAA Fisheries Service has conducted formal ESA section 7 consultations and issued biological opinions (BOs), and made determinations under section 4(d) of the ESA, that consider the impacts to listed salmonid species resulting from proposed implementation of the Salmon FMP, or in some cases, from proposed implementation of the annual management measures. Associated with the BOs are incidental take statements which specify the level of take that is expected. Some of the BOs have concluded that implementation of the Salmon FMP is not likely to jeopardize the continued existence of certain listed ESUs and provided incidental take statements. Other BOs have found the Salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives (consultation standards) that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration, and provided an incidental take statement for the reasonable and prudent alternative. Estimates of the 2006 spawning escapements for key stocks managed under the Salmon FMP and preseason estimates of 2007 ocean abundance are provided in the Council′s REVIEW and PRE I documents. The primary resource and management concerns are for salmon stocks listed under the ESA. At the start of the preseason planning process for the 2007 management season, NOAA Fisheries Service provided a letter to the Council, dated March 1, 2007, summarizing its ESA consultation standards for listed species as required by the Salmon FMP. The Council′s recommended management measures comply with NOAA Fisheries Service′s ESA consultation standards and guidance for those listed salmon species which may be affected by Council fisheries. In some cases, the recommended measures result in impacts that are more restrictive than NOAA Fisheries Service′s ESA requirements. NOAA Fisheries provided new guidance to the Council and a new biological opinion regarding the effects of the 2007 fisheries on Lower Columbia River
(LCR)coho and LCR Chinook salmon. This will be the second year that NOAA Fisheries has consulted on LCR coho. Since the listing of LCR coho in August, 2005 the states of Oregon and Washington have been working with NOAA Fisheries to develop and evaluate a management plan for LCR coho that can be used as the basis for their long-term management. The states have focused on use of a harvest matrix similar to the one used for Oregon Coast coho. Under the matrix the harvest allowed in a given year depends on indicators of marine survival and brood year escapement. Generally speaking, NOAA Fisheries supports use of management planning tools that allow harvest rates to vary depending on the year-specific circumstances. In 2007, brood year and marine survival indicators were generally higher than they were in 2006. Given the circumstances the matrix would have allowed for a total exploitation rate of 29.2 percent. However, uncertainties related to selection of a particular long-term management strategy are such that it is still prudent to take a conservative approach to management until those questions can be resolved. Based on the above described circumstances, NOAA Fisheries′ guidance to the Council was that ocean salmon fisheries, and fisheries in the mainstem Columbia River should be managed subject to a total exploitation rate limit on LCR coho of 20 percent. As a consequence of this guidance the Council proposed to limit Council area fisheries to an exploitation rate of 13.0 percent recognizing that this provided for additional fishing opportunity in the Columbia River. The resulting coho quota for the area north of Cape Falcon in 2007 is 178,000 compared to 117,500 in 2006 and 195,000 in 2005. NOAA Fisheries reinitiated consultation on an earlier biological opinion related to the effects on LCR Chinook. Since 2002, Council fisheries have been managed subject to a total exploitation rate limit of 49 percent for the “tule” component of the listed ESU. NOAA Fisheries reviewed the prior consultation standard to follow up on recommendations included in the recently completed Interim Recovery Plan, and as a routine practice of periodic updating and review of key management criteria. In the guidance letter to the Council in 2006 NOAA Fisheries indicated that it would be undertaking this review. NOAA Fisheries Northwest Region worked closely with the Northwest Fisheries Science Center and Washington Department of Fish and Wildlife when conducting the review. The 49-percent standard was based on an analysis of the Coweeman River population that was used as an indicator stock. During its review NOAA Fisheries updated the analysis for the Coweeman, and developed similar analyses for two additional populations from the Grays and East Fork Lewis rivers. The analysis led to a reduction in the exploitation rate standard to 42 percent, which was conveyed to the Council in the 2007 guidance letter. Lower Columbia River Chinook were already a stock that tended to constrain fishing opportunity in Council and lower Columbia River fisheries. By reducing the standard to 42 percent, fishing opportunity in the areas off the Washington and Oregon coast were further constrained. Fishing opportunity was further reduced in 2007 because the abundance of tule fall Chinook was generally lower compared to recent years. Based on the guidance provided, the Council proposed to limit Council fisheries to an exploitation rate of 20.3 percent. Additional mortality will occur in Alaskan and Canadian fisheries (16.9 percent) which will still provide for some limited opportunity for fisheries in the Columbia River. The Chinook catch quota for the area north of Cape Falcon in 2007 is 67,500, compared to 107,000 and 135,000 in 2006 and 2005. Snake River fall Chinook are listed under the ESA as a threatened species and sometimes are a key stock that constrains Council area fisheries. Direct information on the stock′s ocean distribution and on fishery impacts is not available. The Lyons Ferry stock is widely distributed and harvested by ocean fisheries from southern California to Alaska. NOAA Fisheries Service′s ESA consultation standard requires that Council fisheries be managed to ensure that the Adult Equivalent
(AEQ)exploitation rate on age 3 and age 4 adults for the combined Southeast Alaska, Canadian, and Council fisheries is not greater than 70 percent of that observed during the 1988 1993 base period. The Council′s 2007 recommended fisheries, combined with expected impacts in Southeast Alaska and Canada fisheries, have an estimated age 3/4 AEQ (adult equivalent) exploitation rate that is 68.5 percent of that observed during the 1988-1993 base period. Meeting the Snake River fall Chinook age 3/4 AEQ exploitation rate was not a primary constraint on fisheries north of Cape Falcon this year. NOAA Fisheries Service′s guidance for Puget Sound Chinook stocks is expressed in terms of total or southern U.S. fishery exploitation rate ceilings, or terminal escapement objectives. Under the current management structure, Council fisheries are included as part of the suite of fisheries that comprise the fishing regime negotiated each year by the co-managers under *U.S.* v. *Washington* to meet management objectives for Puget Sound and Washington Coastal salmon stocks. Because these management objectives and the management planning structure address fisheries wherever they occur, Council and Puget Sound fisheries are interconnected. Therefore, in adopting its regulations, the Council recommends fisheries in the ocean that when combined with Puget Sound fisheries meet conservation objectives under Limit 6 of the Endangered Species Act
(ESA)4(d) Rule. NOAA Fisheries Service estimated that the exploitation rates from Council-managed fisheries on Puget Sound Chinook populations will range from zero to seven percent. Management actions taken to meet exploitation rate and escapement targets will, therefore, occur primarily in the Puget Sound fisheries, but the nature of the existing process is such that ocean fishery impacts must be accounted for as part of meeting comprehensive harvest management objectives. Fisheries affecting Puget Sound Chinook are managed subject to provisions of a Resource Management Plan
(RMP)developed by the Washington Department of Fish and Wildlife and the Puget Sound Treaty tribes. The RMP management approach consists of a two-tiered harvest regime (normal and minimum), depending on stock status. The harvest objectives in the RMP are a mixture of total and southern U.S. exploitation rates (termed in the RMP Rebuilding Exploitation Rates or RERs) and escapement goals. When a particular management unit is
(1)not expected to meet its low abundance threshold, or
(2)if the total exploitation rate is projected to exceed its RER under a proposed set of fisheries, the co-managers will constrain their fisheries such that either the RER is not exceeded, or the Critical Exploitation Rate Ceiling (CERC), is not exceeded. The Council′s proposed fisheries, in addition to anticipated inside fisheries, are consistent with the consultation standards for all of the Puget Sound indicator stocks. ESA consultations for California Coastal Chinook
(CCC)often constrain fisheries off Oregon and California. Klamath River Fall Chinook
(KRFC)are used as an indicator stock for limiting harvest impacts to CCC. NOAA Fisheries guidance related to CCC requires that the Pacific ocean salmon fisheries be managed to a pre-season projected KRFC age 4 harvest rate of 16 percent or less. In 2006 the abundance of KRFC was very low and constrained fisheries even beyond those related to CCC. In 2007, the abundance of KRFC is much improved so that this age-4 ocean harvest rate of 16 percent is again limiting. The Council′s proposed fisheries satisfy the 16-percent harvest rate constraint for CCC. Southern resident killer whales were listed as endangered effective February 16, 2006. NOAA Fisheries consulted on the effects of the 2006 fisheries on killer whales and concluded that the fisheries were not likely to jeopardize the continued existence of the species. NOAA Fisheries is again consulting regarding the effects on the 2007 fisheries on killer whales through a separate biological opinion. NOAA Fisheries expects to complete the consultation prior to May 1, 2007. NOAA Fisheries has determined that the anticipated fisheries will not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event that the review suggests that further constraints in the 2007 fisheries are necessary, appropriate corrections can be made by NOAA Fisheries through inseason action. Management Measures for 2007 Fisheries The Council-recommended ocean harvest levels and management measures for 2007 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council′s recommendations responsive to the goals of the Salmon FMP, the requirements of the resource, and the socio-economic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. Accordingly, NMFS has adopted them. North of Cape Falcon the 2007 management measures have a substantially lower Chinook quota and a higher coho quota relative to the 2006 season. The total allowable catch for 2007 is 32,500 Chinook and 140,000 marked hatchery coho; these fisheries are restricted to protect depressed Lower Columbia River wild coho, Washington coastal coho, Puget Sound coho, Oregon Coastal Natural
(OCN)coho, Interior Fraser River coho, Puget Sound Chinook, and Snake River fall Chinook. Washington coastal and Puget Sound Chinook generally migrate to the far north and are not greatly affected by ocean harvests from Cape Falcon, OR, to the U.S.-Canada border. Nevertheless, ocean fisheries in combination with fisheries inside Puget Sound were restricted in order to meet ESA related conservation objectives for Puget Sound Chinook. North of Cape Alava, WA, the Council recommends a provision prohibiting retention of chum salmon during August and September to protect ESA listed Hood Canal summer chum. The Council has recommended such a prohibition for the last six years. South of Cape Falcon, OR, the retention of coho is prohibited, except for a recreational selective fishery off Oregon with a 50,000-fish quota of marked hatchery coho. This is the fourth year the selective fishery includes the southern coastal area of Oregon. The Council′s recommendations are below the 20-percent exploitation rate permitted under Amendment 13 to protect OCN coho stocks, with an expected 11.3-percent OCN coho exploitation rate. The expected ocean exploitation rate for Rogue/Klamath coho is 5.8 percent, and is also below its exploitation rate limit of 13.0 percent. Chinook fisheries off Oregon and California are constrained to meet the conservation objective of California Coastal Chinook and the ESA consultation standards for Sacramento River winter Chinook. Treaty Indian Fisheries for 2007 The treaty-Indian commercial troll fishery quota is 35,000 Chinook in ocean management areas and Washington State Statistical Area 4B combined. This quota is slightly higher than the 22,700-Chinook quota in 2006. The fisheries include a Chinook-directed fishery in May and June (under a quota of 21,500 Chinook) and an all-salmon season beginning July 1 with a 13,500 Chinook sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B for the July-September period is 38,000 coho, a slight increase from the 37,500-coho quota in 2006. Management Measures for 2008 Fisheries The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, the 2008 fishing seasons opening earlier than May 1 are also established in this action. The Council recommended, and NMFS concurs, that the recreational seasons off California from Horse Mountain to the U.S.-Mexico Border and off Oregon from Cape Falcon to Humbug Mountain, and the commercial troll seasons off California from Horse Mountain to Point Arena and off Oregon from Cape Falcon to the Oregon-California Border and will open in 2008 as indicated in the Season Description section. At the March 2008 meeting, the Council may consider inseason recommendations to adjust the commercial season prior to May 1 in the areas off Oregon and California. Inseason Actions The following sections set out the management regime for the salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2007 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in Section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published the **Federal Register** as soon as practicable. The following are the management measures recommended by the Council and approved and implemented here for 2007 and, as specified, for 2008. Section 1. Commercial Management Measures for 2007 Ocean Salmon Fisheries Note: This section contains restrictions in parts A, B, and C that must be followed for lawful participation in the fishery. Each fishing area identified in part A specifies the fishing area by geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions. A. Season Description **North of Cape Falcon, OR** **U.S./Canada Border to Cape Falcon** May 1 through earlier of June 30 or 10,850 Chinook quota.Open May 1-2 and 5-8 with a landing and possession limit of 60 Chinook per vessel for each open period north of Leadbetter Point and 40 Chinook south of Leadbetter Point; beginning May 12, open Saturday through Tuesday with a landing and possession limit of 60 Chinook per vessel for each four-day open period north of Leadbetter Point and 30 Chinook south of Leadbetter Point. All salmon except coho (C.7). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (C.5). See gear restrictions and definitions (C.2, C.3). Oregon State regulations require that fishers south of Cape Falcon, OR intending to fish within this area notify Oregon Department of Fish and Wildlife before transiting the Cape Falcon, OR line (45°46′00″ N. lat.) at the following number: 541-867-0300 Ext. 271. Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.8). July 1 through earlier of September 16 or 5,400 preseason Chinook guideline (C.8) or a 22,400 marked coho quota (C.8.d).Open Saturday through Tuesday. Landing and possession limit of 40 Chinook per vessel per open period north of Leadbetter Point and 20 Chinook south of Leadbetter Point (C.2, C.3). All Salmon except no chum retention north of Cape Alava, Washington in August and September. If sufficient coho quota remains after the Chinook quota is projected to be reached, the area south of Leadbetter Point will remain open to all salmon except Chinook, provided adequate Chinook quota remains to account for non-retention mortality (C.7). All coho must have a healed adipose fin clip, except an inseason conference call may occur to consider allowing retention of all legal sized coho, in the area between Leadbetter Point and Cape Falcon, no earlier than September 1 (C.8.d). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (C.5). Oregon State regulations require that fishers south of Cape Falcon, OR intending to fish within this area notify Oregon Department of Fish and Wildlife before transiting the Cape Falcon, OR line (45°46′00″ N. lat.) at the following number: 541-867-0300 Ext. 271. Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, OR. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.8). **South of Cape Falcon** **Cape Falcon to Florence South Jetty, OR (Newport/Tillamook)** Except as provided below during the non-selective coho fishery, the season will be open April 10-29; May 1 through June 30; July 11-30; August 4-28; September 10-13; and October 1-31. There will be a landing and possession limit of 100 Chinook per vessel per calendar week in April; 150 Chinook per vessel per calendar week in September; and 75 Chinook per vessel per calendar week in October (C.9). All salmon except coho (C.7). Chinook 28 inch (71.12 cm) total length minimum size (B). All vessels fishing in the area must land their fish in the State of Oregon. See gear restrictions and definitions (C.2, C.3) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay. *Non-selective coho fishery* : August 15 through the earlier of September 13 or a 10,000 non-mark-selective coho quota. The non-selective coho quota of 10,000 includes the entire area from Cape Falcon to Humbug Mt. Open August 15-28; Sept. 10-13. All salmon; no coho mark restriction; landing and possession limit of 50 coho per vessel per calendar week in August and September; landing and possession limit of 150 Chinook per vessel per calendar week in September (C.7). The all salmon except coho season reopens the earlier of October 1 or attainment of the coho quota, subject to the open dates listed above. Chinook 28 inch (71.12) total length minimum size (B). All vessels fishing in the area must land their fish in the State of Oregon. See gear restrictions and definitions (C.2, C.3) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay. In 2008, the season will open March 15 for all salmon except coho. This opening could be modified following Council review at its March 2008 meeting. **Florence South Jetty to Humbug Mountain, OR (Coos Bay)** Same as Cape Falcon to Florence South Jetty, above, except: The Bandon High Spot Control Zone, defined as the area west of a line between 43°07′00″ N. lat.; 124°37′00″ W. long. and 42°40′30″ N. lat; 124°52′0″ W. long. (area approximately outside 6 nm from the Bandon south jetty to Humbug Mt.) will be closed in September and October (C.5.d). If Chinook catch in the area from Florence South Jetty to Humbug Mountain, OR is projected to reach 15,000 in August, inseason action will be taken to close the Bandon High Spot Control Zone through August 31 (C.5.d). **Humbug Mountain to Oregon-California Border (Oregon KMZ)** April 10-29; May 1-31. June 1 through earlier of June 30, or a 1,600-Chinook quota. July 11 through earlier of July 31, or a 1,600-Chinook quota. Aug. 1 through earlier of Aug. 29, or a 1,800-Chinook quota. Sept. 6 through earlier of Sept. 30, or a 1,000-Chinook quota (C.9). All salmon except coho. Chinook 28 inch (71.12 cm) total length minimum size limit (B). Landing and possession limit of 100 Chinook per vessel per calendar week in April; 30 Chinook per vessel per day and 90 Chinook per vessel per calendar week during June, July, August, and September. See gear restrictions and definitions (C.2, C.3). Prior to June 1, all vessels fishing in the area must land their fish in the State of Oregon. June 1 through September 30, vessels must land their fish in Gold Beach, Port Orford, or Brookings, Oregon, and within 24 hours of closure. State regulations require fishers intending to transport and deliver their catch to other locations after first landing in one of these ports to notify ODFW prior to transport away from the port of landing by calling 541-867-0300 Ext. 271, with vessel name and number, number of salmon by species, location of delivery, and estimated time of delivery. In 2008, the season will open March 15 for all salmon except coho, with a 28-inch (71.12 cm) Chinook minimum size limit. This opening could be modified following Council review at its March 2008 meeting. **Oregon-California Border to Humboldt South Jetty, CA (California KMZ)** September 10 through earlier of September 30, or 6,000 Chinook quota. All salmon except coho. Chinook minimum size limit of 28 inches (71.12 cm) total length. Landing and possession limit of 30 fish per vessel per day. All fish caught in this area must be landed within the area. See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed (C.5.e). See California State regulations for additional closures adjacent to the Smith and Klamath rivers. When the fishery is closed between the OR/CA border and Humbug Mt. and open to the south, vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, Oregon prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival. **Humboldt South Jetty to Horse Mountain, CA** Closed (C.9). **Horse Mountain to Point Arena, CA (Fort Bragg)** April 9 through the earlier of April 27 or a Chinook quota of 2,000; open Monday to Friday. August 1-29; September 1-30 (C.9). All salmon except coho. Chinook minimum size limit of 27 inches (68.58 cm) total length in April and September; 28 inches (71.12 cm) total length in August (B). Landing and possession limit of 20 fish per vessel per day in April. All fish caught in the area must be landed within the area in April; all fish must be offloaded within 24 hours of any closure (C1). See gear restrictions and definitions (C.2, C.3). In 2008, the season will open April 7-25, Monday to Friday for all salmon except coho, with a 27-inch (68.58 cm) total length Chinook minimum size limit. This opening could be modified following Council review at its March 2008 meeting. **Point Arena to Pigeon Point, CA (San Francisco)** May 9-31; July 1 through August 29; September 1-30. (C.9). All salmon except coho. Chinook minimum size limit of 27 inches (68.58 cm) total length in May and September; 28 inches (71.12 cm) total length in July and August (B). All fish must be offloaded within 24 hours of the August 29 closure (C.1). See gear restrictions and definitions (C.2, C.3). **Point Reyes to Point San Pedro, CA (Fall Area Target Zone)** October 1-5; 8-12. Open Monday through Friday. All salmon except coho (C.1). Chinook minimum size limit of 27 inches (68.58 cm) total length (B). See gear restrictions and definitions (C.2, C.3). **Pigeon Point to Point Sur, CA (Monterey)** May 1-31; July 1 through August 29; September 1-30. (C.9). All salmon except coho. Chinook minimum size limit of 27 inches (68.58 cm) total length in May and September; 28 inches (71.12 cm) total length in July and August (B). All fish must be offloaded within 24 hours of the August 29 closure (C.1). See gear restrictions and definitions (C.2, C.3). **Point Sur to U.S.-Mexico Border** May 1 through September 30. All salmon except coho. Chinook minimum size limit of 27 inches (68.58 cm) total length in May, June, and September; 28 inches (71.12 cm) total length in July and August. See gear restrictions and definitions (C.2, C.3). B. Minimum Size (Inches) (See C.1) Area (when open) and Fishery Chinook Total Length Head-off Coho Total Length Head-off Pink North of Cape Falcon, OR 28.0 21.5 16.0 12.0 None Cape Falcon to OR-CA Border 28.0 21.5 16.0 12.0 OR-CA Border to Horse Mountain, CA 28.0 21.5 - - None Horse Mountain to Point Arena, CA 27.0 20.5 - - None Pt. Arena to US-Mexico Border Prior to July 1 and after August 31 27.0 20.5 - - None July 1 - August 31 28.0 21.5 - - None Metric equivalents: 28.0 in=71.1 cm, 27.0 in=68.6 cm, 26.0 in=66.0 cm, 21.5 in=54.6 cm, 19.5 in=49.5 cm, 16.0in=40.6 cm, and 12.0 in=30.5 cm. C. Special Requirements, Definitions, Restrictions, or Exceptions *C.1.Compliance with Minimum Size or Other Special Restrictions* : All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open. Salmon may be landed in an area that has been closed more than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may be landed in an area that has been closed less than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the areas in which they were caught and landed. States may require fish landing/receiving tickets be kept on board the vessel for 90 days after landing to account for all previous salmon landings. *C.2.Gear Restrictions* : Salmon may be taken only by hook and line using barbless hooks. a. Single point, single shank, barbless hooks are required in all fisheries. b. Cape Falcon, Oregon, to the OR/CA border: No more than 4 spreads are allowed per line. c. OR/CA border to U.S./Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling. *C.3.Gear Definitions* : *Trolling defined* : Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions. *Troll fishing gear defined* : One or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area
(FMA)off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation. *Spread defined* : A single leader connected to an individual lure or bait. *Circle hook defined* : A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90°angle. *C.4.Transit Through Closed Areas with Salmon on Board* : It is unlawful for a vessel to have troll or recreational gear in the water while transiting any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species, and no salmon are in possession. *C.5.Control Zone Definitions* : *a. Cape Flattery Control Zone* : The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava (48°10′00″ N. lat.) and east of 125°05′00″ W. long. b. *Mandatory Yelloweye Rockfish Conservation Area:* The area in Washington Marine Catch Area 3 from 48°00.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°16.50′ W. long. to 48°00.00′ N. lat.; 125°16.50′ W. long. and connecting back to 48°00.00′ N. lat.; 125°14.00′ W. long. c. *Columbia Control Zone* : An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°(degree symbols)13′35″ N. lat., 124#06′50″ W. long.) and the green lighted Buoy #7 (46°15′09′ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat.,124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.), and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line. d. *Bandon High Spot Control Zone* : The area west of a line between 43°07′00″ N. lat.; 124°37′00″ W. long. and 42°40′30″ N. lat; 124°52′0″ W. long. extending to the western edge of the exclusive economic zone (EEZ). e. *Klamath Control Zone* : The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and on the south, by 41°26′48″ N. lat. (approximately six nautical miles south of the Klamath River mouth). C.6. *Notification When Unsafe Conditions Prevent Compliance with Regulations* : If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board, and the estimated time of arrival. C.7. *Incidental Halibut Harvest* : During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and Washington Department of Fish and Wildlife
(WDFW)will monitor landings. If the landings are projected to exceed the 40,227-lb (18,246.66 Kg) preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery. Beginning May 1, license holders may land no more than one Pacific halibut per each three Chinook, except one Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip. Pacific halibut retained must be no less than 32 inches (81.28 cm) in total length (with head on). A “C-shaped” yelloweye rockfish conservation area is an area to be voluntarily avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), with the following coordinates in the order listed: 48°18′ N. lat.; 125°18′ W. long.; 48°18′ N. lat.; 124°59′ W. long.; 48°11′ N. lat.; 124°59′ W. long.; 48°11′ N. lat.; 125°11′ W. long.; 48°04′ N. lat.; 125°11′ W. long.; 48°04′ N. lat.; 124°59′ W. long.; 48°00′ N. lat.; 124°59′ W. long.; 48°00′ N. lat.; 125°18′ W. long.; and connecting back to 48°18′ N. lat.; 125°18′ W. long. C.8. *Inseason Management* : In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS: a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline on a fishery impact equivalent basis. b. NOAA Fisheries may transfer Chinook and coho between the recreational and commercial fisheries north of Cape Falcon on an impact neutral basis if there is agreement among the areas′ representatives on the SAS. c. At the March 2008 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2007). d. If retention of unmarked coho is permitted in the area from the U.S./Canada border to Cape Falcon, Oregon, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded. C.9. Consistent with Council management objectives: a. The State of Oregon may establish additional late-season fisheries in state waters. b. The State of California may establish limited fisheries in selected state waters. Check state regulations for details. C.10. For the purposes of California Department of Fish and Game
(CDFG)Code, Section 8232.5, the definition of the KMZ for the ocean salmon season shall be that area from Humbug Mt., Oregon, to Horse Mt., California. Section 2. Recreational Management Measures for 2007 Ocean Salmon Fisheries Note: This section contains restrictions in parts A, B, and C that must be followed for lawful participation in the fishery. Each fishing area identified in part A specifies the fishing area by geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions. A. Season Description **North of Cape Falcon, OR (remove underline here)** **U.S.-Canada Border to Cape Alava, WA (Neah Bay Subarea)** July 3 through earlier of September 15 or 12,230 marked coho subarea quota with a subarea guideline of 1,725 Chinook. Tuesday through Saturday. All salmon, except no chum retention August 1 through Sept. 15; two fish per day, no more than one of which may be a Chinook, plus one additional pink salmon beginning August 1. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked. See gear restrictions (C.2). Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.a) during Council managed ocean fishery. Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). **Cape Alava to Queets River, WA (La Push Subarea)** July 3 through earlier of September 15 or 2,960 marked coho subarea quota with a subarea guideline of 725 Chinook (C.5). September 22 through October 7 or 100 marked coho quota or 100 Chinook quota (C.5), in the area north of 47°50′00 N. lat. and south of 48°00′00″ N. lat. (C.6). Tuesday through Saturday through September 15; seven days per week beginning September 22. All salmon, two fish per day, no more than one of which may be a Chinook, plus one additional pink salmon beginning August 1. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked. See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). **Queets River to Leadbetter Point, WA (Westport Subarea)** July 1 through earlier of September 16 or 43,510 marked coho subarea quota with a subarea guideline of 9,400 Chinook (C.6).Sunday through Thursday. All salmon, two fish per day, no more than one of which may be a Chinook. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked. See gear restrictions and definitions (C.2, C.3). Grays Harbor Control Zone closed beginning August 1 (C.4.b). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). **Leadbetter Point to Cape Falcon, OR (Columbia River Subarea)** July 1 through earlier of September 30 or 58,800 marked coho subarea quota with a subarea guideline of 4,300 Chinook (C.6).Seven days per week. All salmon, two fish per day, no more than one of which may be a Chinook. Chinook 24-inch (60.96 cm) total length minimum size limit (B). All retained coho must be marked. See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4.c). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5). **South of Cape Falcon, OR** **Cape Falcon to Humbug Mountain, OR** Except as provided below during the selective fishery, the season will be March 15 through October 31 (C.6). All salmon except coho; two fish per day (C.1). See gear restrictions and definitions (C.2, C.3). Mark selective fishery: Cape Falcon to OR/CA Border: June 23 through earlier of September 16 or a landed catch of 50,000 marked coho, except that the area south of Humbug Mt. will close Sept. 4, concurrent with the KMZ season listed below. The all salmon except coho seasons reopen the earlier of September 17 or attainment of the coho quota. Open seven days per week, all salmon, except coho, two fish per day (C.1). All retained coho must be marked with a healed adipose fin clip. Chinook minimum size limit of 24 inches (60.96 cm) total length. Fishing in the Stonewall Bank groundfish conservation area restricted to trolling only on days the all depth recreational halibut fishery is open (see 70 FR 20304, and call the halibut fishing hotline 1-800-662-9825 for additional dates) (C.3, C.4.d). Open days may be adjusted inseason to utilize the available quota (C.5). All salmon except coho seasons reopen the day following the closure of the mark selective coho fishery. In 2008, the season will open March 15 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches (60.96 cm) total length (B); and the same gear restrictions as in 2007 (C.2, C.3). **Humbug Mountain to Oregon-California Border, CA (Oregon KMZ)** Except as provided above during the selective fishery, the season will be May 5 through September 4 (C.6). All salmon except coho, except as noted above in the coho mark selective fishery. Chinook minimum size limit of 24 inches (60.96 cm) total length (B). Seven days per week, two fish per day (C.1). See gear restrictions and definitions (C.2, C.3). **Oregon-California Border to Horse Mountain, CA(California KMZ)** May 5 through September 4 (C.6). All salmon except coho. Chinook minimum size limit of 24 inches (60.96 cm) total length (B). Seven days per week, two fish per day (C.1). See gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed in August (C.4.e). See California State regulations for additional closures adjacent to the Smith, Klamath, and Eel rivers. **Horse Mountain to Point Arena, CA (Fort Bragg)** February 17 through November 11. All salmon except coho. Two fish per day (C.1). Chinook minimum size limit of 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3). In 2008, season opens February 16 (nearest Saturday to February 15) for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches (50.8 cm) total length (B); and the same gear restrictions as in 2007 (C.2, C.3). **Point Arena to Pigeon Point, CA (San Francisco)** April 7 through November 11. All salmon except coho. Two fish per day (C.1). Chinook minimum size limit of 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3). In 2008, the season will open April 5 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches (50.8 cm) total length (B); and the same gear restrictions as in 2007 (C.2, C.3). **Pigeon Point to U.S.-Mexico Border (Monterey South)** April 7 through October 7. All salmon except coho. Two fish per day (C.1). Chinook minimum size limit of 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3). In 2008, the season will open April 5 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches (50.8 cm) total length (B); and the same gear restrictions as in 2007 (C.2, C.3). B. Minimum Size (Total Length in Inches) (See C.1) Area (when open) Chinook Coho Pink North of Cape Falcon, OR 24.0 16.0 None Cape Falcon to OR-CA Border 20.0 16.0 None OR-CA Border to Horse Mountain 24.0 20.0 Horse Mt. to U.S.-Mexico Border 20.0 20.0 Metric equivalents: 26.0 in=66.0 cm, 24.0 in=61.0 cm, 20.0 in=50.8 cm, 16.0 in=40.6 cm. C. Special Requirements, Definitions, Restrictions, or Exceptions C.1. *Compliance with Minimum Size and Other Special Restrictions* : All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught. *Ocean Boat Limits* : Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of salmon for all licensed and juvenile anglers aboard has been attained (additional state restrictions may apply). C.2. *Gear Restrictions* : Salmon may be taken only by hook and line using barbless hooks. All persons fishing for salmon, and all persons fishing from a boat with salmon on board, must meet the gear restrictions listed below for specific areas or seasons. a. *U.S./Canada Border to Point Conception, California* : No more than one rod may be used per angler; and no more than two single point, single shank barbless hooks are required for all fishing gear. [Note: ODFW regulations in the state-water fishery off Tillamook Bay may allow the use of barbed hooks to be consistent with inside regulations.] b. *Cape Falcon, Oregon, to Point Conception, California* : Anglers must use no more than two single point, single shank, barbless hooks. c. *Horse Mt., California, to Point Conception, California* : Single point, single shank, barbless circle hooks (below) are required when fishing with bait by any means other than trolling, and no more than two such hooks shall be used. When angling with two hooks, the distance between the hooks must not exceed 5 inches (12.7 cm) when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait. C.3. *Gear Definitions* : a. *Recreational fishing gear defined* : Angling tackle consisting of a line with no more than one artificial lure or natural bait attached. Off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. Off California, the line must be attached to a rod and reel held by hand or closely attended. Weights directly attached to a line may not exceed four pounds (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon, and no person fishing from a boat with salmon on board, may use more than one rod and line. Fishing includes any activity which can reasonably be expected to result in the catching, taking, or harvesting of fish. b. *Trolling defined* : Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions. c. *Circle hook defined* : A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90 angle. C.4. *Control Zone Definitions* : a. *The Bonilla-Tatoosh Line* : A line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°28′00″ N. lat., 124°45′00″ W. long.), then in a straight line to Bonilla Point (48°35′30″ N. lat., 124°43′00″ W. long.) on Vancouver Island, British Columbia. b. *Grays Harbor Control Zone* : The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°36′00″ N. lat., 124°10′51″ W. long.). c. *Columbia Control Zone* : An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09′ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357°true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long. and then along the north jetty to the point of intersection with the Buoy #10 line; and on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line. d. *Stonewall Bank Groundfish Conservation Area* : The area defined by the following coordinates in the order listed: 44°37.46′ N. lat.; 124°24.92′ W. long.; 44°37.46′ N. lat.; 124°23.63′ W. long.; 44°28.71′ N. lat.; 124°21.80′ W. long.; 44°28.71′ N. lat.; 124°24.10′ W. long.; 44°31.42′ N. lat.; 124°25.47′ W. long.; and connecting back to 44°37.46′ N. lat.; 124°24.92′ W. long. e. *Klamath Control Zone* : The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles south of the Klamath River mouth). C.5. *Inseason Management* : Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS: a. Actions could include modifications to bag limits, or days open to fishing, and extensions or reductions in areas open to fishing. b. Coho may be transferred inseason among recreational subareas north of Cape Falcon on an impact neutral basis to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council′s SAS recreational representatives north of Cape Falcon. c. NOAA Fisheries may transfer Chinook and coho between the recreational and commercial fisheries north of Cape Falcon on an impact neutral basis if there is agreement among the areas′ representatives on the SAS. d. If retention of unmarked coho is permitted in the area from the U.S./Canada border to Cape Falcon, Oregon, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded. C.6. *Additional Seasons in State Territorial Waters* : Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Oregon State-water fisheries are limited to Chinook salmon. Check state regulations for details. Section 3. Treaty Indian Management Measures for 2007 Ocean Salmon Fisheries Note: This section contains restrictions in parts A, B, and C which must be followed for lawful participation in the fishery. A. Season Descriptions **U.S.-Canada Border to Cape Falcon, OR** May 1 through the earlier of June 30 or 21,500 Chinook quota. All salmon except coho. If the Chinook quota for the May-June fishery is not fully utilized, inseason action may be taken to transfer up to 5,714 Chinook from the May-June quota into the July - September all-salmon season at a ratio of 1.0 to 0.35, resulting in a maximum increase of 2,000 Chinook in the July-September quota (C.5). If the May-June Chinook quota is exceeded, the excess will be deducted from the July-September all-salmon season at a ratio of 1.0 to 1.0. See size limit
(B)and other restrictions (C). July 1 through the earlier of September 15, or 13,500 preseason Chinook quota, or 38,000 coho quota (C.5). All salmon. See size limit
(B)and other restrictions (C). B. Minimum Size (Inches) Area (when open) and Fishery Chinook Total Length Head-off Coho Total Length Head-off Pink North of Cape Falcon, OR Commercial 24.0 18.0 16.0 12.0 None Ceremonial and Subsistence None None None None None Metric equivalents: 24.0 in=61.0 cm, 18.0 in=45.7 cm, 16.0in=40.6 cm, and 12.0 in=30.5 cm. C. Special Requirements, Restrictions, and Exceptions *C.1.Tribe and Area Boundaries* : All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery. *S'KLALLAM* - Washington State Statistical Area 4B (All). *MAKAH* - Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long. *QUILEUTE* - That portion of the FMA between 48°07′36″ N. lat. (Sand Pt.) and 47°31′42″ N. lat. (Queets River) and east of 125°44′00″ W. long. *HOH* - That portion of the FMA between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River) and east of 125°44′00″ W. long. *QUINAULT* -That portion of the FMA between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″N. lat. (Point Chehalis) and east of 125°44′00″ W. long. *C.2.Gear restrictions* a. Single point, single shank, barbless hooks are required in all fisheries. b. No more than eight fixed lines per boat. c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.) *C.3.Quotas* a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15. b. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of September 15 through October 15 in the same manner as in 2004, 2005, and 2006. Fish taken during this fishery are to be counted against treaty troll quotas established for the 2007 season (estimated harvest during the October ceremonial and subsistence fishery: 100 Chinook; 200 coho). C.4. *Area Closures* a. The area within a 6-nm radius of the mouths of the Queets River (47 31′42″ N. lat.) and the Hoh River (47 45′12″ N. lat.) will be closed to commercial fishing. b. A closure within 2 nautical miles of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime. C.5. *Inseason Management* : In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS: a. Chinook remaining from the May through June treaty Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline Chinook quota on a fishery impact equivalent basis. Section 4. Halibut Retention Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery which appear at 50 CFR part 300, subpart E. On March 14, 2007, NMFS published a final rule (72 FR 11792) to implement the International Pacific Halibut Commission's
(IPHC)recommendations, to announce fishery regulations for U.S. waters off Alaska and fishery regulations for treaty commercial and ceremonial and subsistence fisheries, some regulations for non-treaty commercial fisheries for U.S. waters off the West Coast, and approval of and implementation of the Area 2A Pacific halibut Catch Sharing Plan and the Area 2A management measures for 2007. The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both. The following measures have been approved by the IPHC, and implemented by NMFS. During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and WDFW will monitor landings. If the landings are projected to exceed the 40,227-lb (18246.66 kg) preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery. Beginning May 1, license holders may land no more than one Pacific halibut per each 3 Chinook, except one Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip. Pacific halibut retained must be no less than 32 inches (81.28 cm) in total length (with head on). NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” YRCA (North Coast Recreational YRCA) in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (WA marine area 3)(See Section 1.C.7. for the coordinates). **Section 5. Geographical Landmarks** Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured. Geographical landmarks referenced in this document are at the following locations: Cape Flattery,WA 48°23′00″ N. lat. Cape Alava, WA 48°10′00″ N. lat. Queets River, WA 47°31′42″ N. lat. Leadbetter Point, WA 46°38′10″ N. lat. Cape Falcon, OR 45°46′00″ N. lat. Florence South Jetty, OR 44°00′54″ N. lat. Humbug Mountain, OR 42°40′30″ N. lat. Oregon-California Border 42°00′00″ N. lat. Humboldt South Jetty, CA 40°45′53″ N. lat. Horse Mountain, CA 40°05′00″ N. lat. Point Arena, CA 38°57′30″ N. lat. Point Reyes, CA 37°59′44″ N. lat. Point San Pedro, CA 37°35′40″ N. lat. Pigeon Point, CA 37°11′00″ N. lat. Point Sur, CA 36°18′00″ N. lat. Point Conception, CA 34°27′00″ N. lat. **Section 6. Inseason Notice Procedures** Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the **Federal Register** as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing. Classification This notification of annual management measures is exempt from review under Executive Order 12866. The provisions of 50 CFR 660.411 state that if, for good cause, an action must be filed without affording a prior opportunity for public comment, the measures will become effective; however, public comments on the action will be received for a period of 15 days after the date of publication in the **Federal Register** . NMFS will receive public comments on this action until May 18, 2007. These regulations are being promulgated under the authority of 16 USC 1855(d). The Assistant Administrator for Fisheries, NOAA
(AA)finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures are impracticable. The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small portion of the annual catch. The time-frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures depends on when the pertinent biological data are available. Salmon stocks are managed to meet annual spawning escapement goals or specific exploitation rates. Achieving either of these objectives requires designing management measures that are appropriate for the ocean abundance predicted for that year. These pre-season abundance forecasts, which are derived from the previous year's observed spawning escapement, vary substantially from year to year, and are not available until January and February because spawning escapement continues through the fall. The preseason planning and public review process associated with developing Council recommendations is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. This complex process includes the affected user groups, as well as the general public. The process is compressed into a 2-month period which culminates at the April Council meeting at which the Council adopts a recommendation that is forwarded to NMFS for review, approval and implementation of fishing regulations effective on May 1. Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would require 30 to 60 days in addition to the 2-month period required for development of the regulations. Delaying implementation of annual fishing regulations, which are based on the current stock abundance projections, for an additional 60 days would require that fishing regulations for May and June be set in the previous year without knowledge of current stock status. Although this is currently done for fisheries opening prior to May, relatively little harvest occurs during that period (e.g., in 2006 less than 10 percent of commercial and recreational harvest occurred prior to May 1). Allowing the much more substantial harvest levels normally associated with the May and June seasons to be regulated in a similar way would impair NOAA Fisheries' ability to protect weak and ESA listed stocks and provide harvest opportunity where appropriate. Overall, the annual population dynamics of the various salmon stocks require managers to vary the season structure of the various West Coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action. Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NOAA Fisheries has concluded it is impracticable to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B). It is impracticable because if the 2007 ocean salmon fishery was to open under the 2006 management measures, the landing and possession limit in the area north of Cape Falcon would be higher, restricting the ability of NOAA Fisheries to manage for the May through June Chinook quota. Also in the area south of Cape Falcon, operating under the 2006 management measures would unnecessarily close large section of Oregon and California coasts, thereby restricting fishing opportunity. The AA also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data are not available until February and management measures not finalized until early April. These measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. If these measures are not in place on May 1, the previous year's management measures will continue to apply. Failure to implement these measures immediately could compromise the status of certain stocks, including Lower Columbia River Chinook and Puget Sound Chinook, and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action. To enhance notification of the fishing industry of these new measures, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and is also posting the regulations on both of its West Coast regional websites (www.nwr.noaa.gov and swr.nmfs.noaa.gov). NMFS is also advising the States of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems. This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by OMB under control number 0648-0433. The public reporting burden for providing notifications if landing area restrictions cannot be met, or to obtain shelter in Brookings, OR, is estimated to average 15 minutes per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. Since 1989, NOAA Fisheries Service has listed under the ESA 27 evolutionarily significant units
(ESUs)of salmonids on the west coast. As the listings have occurred, NOAA Fisheries Service has conducted formal ESA section 7 consultations and issued biological opinions (BOs), and made determinations under section 4(d) of the ESA, that consider the impacts to listed salmonid species resulting from proposed implementation of the Salmon FMP, or in some cases, from proposed implementation of the annual management measures. Associated with the BOs are incidental take statements which specify the level of take that is expected. Some of the BOs have concluded that implementation of the Salmon FMP is not likely to jeopardize the continued existence of certain listed ESUs and provided incidental take statements. Other BOs have found the Salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives (consultation standards) that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration, and provided an incidental take statement for the reasonable and prudent alternative. Table 1. NMFS' Endangered Species Act consultations and section 4(d) determinations related to ocean fisheries implemented under the Salmon FMP and duration of the proposed action covered by each. Date Evolutionarily Significant Unit covered and effective period March 8, 1996 Snake River Chinook and sockeye (until reinitiated) April 28, 1999 Oregon coast coho, S. Oregon/ N. California coast coho, Central California coast coho (until reinitiated) April 28, 2000 Central Valley spring Chinook and California coast Chinook (until reinitiated) April 27, 2001 Hood Canal summer chum 4(d) limit and associated biological opinion (until reinitiated). April 30, 2001 Upper Willamette River Chinook, Upper Columbia River spring Chinook, Ozette Lake sockeye, ten steelhead ESUs, Columbia River chum (until reinitiated). April 27, 2004 Sacramento River winter Chinook (through 2009) June 13, 2005 California Coastal Chinook (until reinitiated) March 4, 2005 Puget Sound Chinook (through April 30, 2010) April 30, 2007 Lower Columbia River coho and Chinook (through April 30, 2007) At the start of the preseason planning process for the 2007 management season, NOAA Fisheries Service provided a letter to the Council, dated March 1, 2007, summarizing its ESA consultation standards for listed species as required by the Salmon FMP. The Council′s recommended management measures comply with NOAA Fisheries Service′s ESA consultation standards and guidance for those listed salmon species which may be affected by Council fisheries. In some cases, the recommended measures result in impacts that are more restrictive than NOAA Fisheries Service′s ESA requirements. Southern resident killer whales were listed as endangered effective February 16, 2006. NOAA Fisheries consulted on the effects of the 2006 fisheries on killer whales and concluded that the fisheries were not likely to jeopardize the continued existence of the species. NOAA Fisheries is again consulting regarding the effects of the 2007 fisheries on killer whales through a separate biological opinion. NOAA Fisheries expects to complete the consultation prior to May 1, 2007. While the consultation may not be completed prior to approval of this action, NOAA Fisheries has determined that the anticipated fisheries will not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event that the review suggests that further constraints in the 2007 fisheries are necessary, appropriate corrections can be made by NOAA Fisheries through inseason action. This final rule was developed after meaningful consultation with the tribal representative on the Council who has agreed with the provisions that apply to tribal vessels. Authority: 16 U.S.C. 773-773k; 1801 *et seq.* Dated: May 1, 2007. William T. Hogarth, Assistant Administrator for Fisheries,National Marine Fisheries Service. [FR Doc. 07-2204 Filed 5-1-07; 1:13 pm]
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32 references not yet in our index
  • 7 CFR 457
  • 7 CFR 3015
  • 7 CFR 11
  • 7 CFR 457.169
  • 7 CFR 966
  • 7 USC 601-674
  • 21 CFR 1308
  • 21 CFR 1306.03-1306
  • 33 CFR 117
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • Pub. L. 109-163
  • 49 CFR 107
  • Pub. L. 109-59
  • 119 Stat. 1144
  • Pub. L. 109-289
  • 5 USC 601-611
  • 42 USC 4321-4347
  • 49 USC 5101-5128
  • Pub. L. 101-410
  • Pub. L. 104-134
  • 49 CFR 1.45
  • 49 CFR 1
  • 50 CFR 660
  • 50 CFR 300
  • 50 CFR 660.411
  • 16 USC 773-773k
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Fed. Reg.Notices
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U.S.C.§ 1506
C.F.R.§ 121.201
U.S.C.§ 811
U.S.C.§ 556
Cite7 CFR 457
Cite7 CFR 3015
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