Unknown. Confirmation of regulations

46,434 words·~211 min read·/register/2007/06/13/07-2928

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-2007-06-13.xml --- 72 113 Wednesday, June 13, 2007 Contents AID Agency for International Development RULES Federal Acquisition Regulation (FAR): Mentor-Protege Program, 32540-32546 E7-11093 Agency Agency for Toxic Substances and Disease Registry NOTICES Superfund program: Hazardous substances priority list (toxicological profiles), 32669 E7-11385 Agricultural Agricultural Marketing Service RULES Popcorn promotion, research, and consumer information order, section 610 review, 32517-32518 E7-11376 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Farm Service Agency See Forest Service See Rural Business-Cooperative Service See Rural Housing Service NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-11327 32606-32607 E7-11329 Animal Animal and Plant Health Inspection Service NOTICES Environmental statements; availability, etc.:

Nicotiana hybrids; genetically engineered to produce antibodies; field release, 32607-32608 E7-11481 Army Army Department NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive: Spreader bar apparatus, 32631 07-2924 Reports and guidance documents; availability, etc.: DOD Personal Property Non-Temporary Storage Program— Increased firearms security; transportation service providers/contractors requirement, 32631 07-2923 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 32669-32670 E7-11384 Coast Guard Coast Guard RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.:

Chicago Harbor, IL, 32520-32522, E7-11340 32524-32526 E7-11343 Milwaukee Harbor, WI, 32522-32524 E7-11339 Regattas and marine parades: 2007 Rappahannock River Boaters Association Spring and Fall Radar Shootout, 32518-32520 E7-11342 PROPOSED RULES Regattas and marine parades: Crystal Coast Super Boat Grand Prix, 32567-32569 E7-11344 Commerce Commerce Department See Industry and Security Bureau See National Oceanic and Atmospheric Administration Defense Defense Department See Army Department NOTICES Arms sales notification; transmittal letter, etc., 32619-32627 07-2917 07-2919 Civilian health and medical program of the uniformed services (CHAMPUS):

TRICARE program— Disease management demonstration project for TRICARE standard beneficiaries, 32628-32629 E7-11381 Meetings: Care for America's Returning Wounded Warriors, President's Commission, 32629-32630 07-2916 Privacy Act; systems of records, 32630-32631 07-2922 Employment Employment Standards Administration See Wage and Hour Division Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Air pollution; standards of performance for new stationary sources:

Fossil-fuel-fired, electric utility, industrial-commercial-institutional, and small industrial-commercial-institutional steam generating units, 32710-32768 E7-7673 Air quality implementation plans: Preparation, adoption, and submittal— Vacated elements removal; prevention of significant deterioration and nonattainment new source review, 32526-32529 E7-11289 Air quality implementation plans; approval and promulgation; various States: Indiana, 32531-32533 E7-11290 Nevada, 32529-32531 E7-11321 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities:

Diuron, 32533-32540 E7-11205 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: Alabama, 32569-32570 E7-11412 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Amitraz, etc., 32570-32582 E7-11324 NOTICES Agency information collection activities; proposals, submissions, and approvals, 32640-32646 E7-11292 E7-11293 E7-11415 Air programs: State implementation plans; adequacy status for transportation conformity purposes— Colorado, 32646-32647 E7-11413 Meetings:

Methods for testing efficacy of skin-applied repellents; public workshop, 32647-32648 07-2937 Pesticide programs: Pesticide applicator certifications; State plans— Navajo Indian Country, 32648-32649 E7-11322 Risk assessments— 2-octyl-3 (2H)-isothiazolone (octhilinone), 32649-32650 E7-11416 Pesticide registration, cancellation, etc.: Antimycin A, 32651-32652 E7-11291 Nitrapyrin, 32652-32654 E7-11210 Water pollution control: National Pollutant Discharge Elimination System— Indian country lands, NM and OK; storm water discharges from small municipal separate storm sewer systems; general permits, 32654-32657 E7-11316 Water supply:

Safe Drinking Water Act— Shell Oil Co.; Shell Oil Co.; consent agreement to resolve violations, 32657-32660 E7-11418 Executive Executive Office of the President See Presidential Documents Farm Farm Service Agency NOTICES Agency information collection activities; proposals, submissions, and approvals, 32608 07-2925 FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives: Cirrus Design Corp., 32563-32564 E7-11386 Eurocopter France, 32565-32567 E7-11388 FCC Federal Communications Commission PROPOSED RULES Radio services, special:

Private land mobile radio services— 4.9 GHz band and Wireless Medical Telemetry Service, 32582-32589 E7-11221 Radio station; table of assignments: Oklahoma, 32589 07-2901 NOTICES Agency information collection activities; proposals, submissions, and approvals, 32660-32663 E7-11230 E7-11233 E7-11317 E7-11407 *Applications, hearings, determinations, etc.:* Castle, David O., 32663-32664 E7-11245 Richards, Frank C., 32664-32665 E7-11231 Sharples, Jack R., 32665 E7-11243 Federal Energy Federal Energy Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 32632 E7-11363 Compliants filed:

National Energy & Trade, LP, 32639 E7-11346 Hydroelectric applications, 32639-32640 E7-11351 Meetings: FERC Form 6; changes and revisions to reporting requirements; workshop, 32640 E7-11364 *Applications, hearings, determinations, etc.:* ANR Pipeline Co., 32632-32633 E7-11358 E7-11360 Bonneville Power Administration, 32633 E7-11361 CenterPoint Energy Gas Transmission Co., 32634 E7-11359 Colorado Interstate Gas Co., 32634 E7-11348 Discovery Gas Transmission LLC, 32634-32635 E7-11362 E7-11365 El Paso Natural Gas Co., 32635 E7-11350 Gas Transmission Northwest Corp., 32635-32636 E7-11357 Kinder Morgan Interstate Gas Transmission LLC, 32636 E7-11353 Questar Pipeline Co., 32636 E7-11356 Rockies Express Pipeline LLC, 32637 E7-11349 Texas Gas Transmission, LLC, E7-11354 32637-32638 E7-11355 Transcontinental Gas Pipe Line Corp., 32638 E7-11352 Viking Gas Transmission Co., 32638-32639 E7-11347 FMC Federal Maritime Commission NOTICES Agreements filed, etc., 32665-32666 E7-11411 Complaints filed:

KEI Logix, 32666 E7-11402 Ocean transportation intermediary licenses: Cosmo Freight Solutions, Inc., et al., 32666-32667 E7-11414 Delmar Logistics, Inc., 32667 E7-11401 Gulf American Line, Inc., et al., 32667 E7-11394 Seagold

(USA)Inc., 32667-32668 E7-11397 Federal Motor Federal Motor Carrier Safety Administration NOTICES Motor carrier safety standards: Driver qualifications; vision requirement exemptions, 32703-32707 E7-11335 E7-11337 Federal Procurement Federal Procurement Policy Office RULES Acquisition regulations: Cost Accounting Standards board— Contract coverage, 32546-32549 E7-11325 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 32668 E7-11380 Formations, acquisitions, and mergers, 32668 E7-11382 Permissible nonbanking activities, 32668 E7-11379 Federal Transit Federal Transit Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 32707 E7-11338 Fish Fish and Wildlife Service PROPOSED RULES Endangered and threatened species: Findings on petitions, etc.— Colorado River cutthroat trout, 32589-32605 07-2915 NOTICES Environmental statements; record of decision: Don Edwards San Francisco Bay National Wildlife Refuge and Bair Island State Ecological Reserve, CA; Bair Island restoration and management plan, 32678-32679 E7-11392 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 32670-32672 E7-11400 Forest Forest Service NOTICES Environmental statements; notice of intent: Geothermal resources leasing on BLM- and USFS-administered lands, 32679-32680 07-2921 Meetings: Resource Advisory Committees— Glenn/Colusa County, 32608-32609 07-2906 Health Health and Human Services Department See Agency for Toxic Substances and Disease Registry See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health NOTICES Meetings: Vital and Health Statistics National Committee, 32668-32669 07-2920 Homeland Homeland Security Department See Coast Guard NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-11424 32675-32676 07-2933 Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-11334 32677-32678 E7-11336 Industry Industry and Security Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-11372 32616-32617 E7-11373 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International International Trade Commission NOTICES Import investigations: Automotive replacement glass windshields from— China, 32682 E7-11390 Baseband processor chips and chipsets, transmitter, receiver, and power control chips, and products containing same, including cellular telephone headsets, 32682-32683 E7-11389 Labor Labor Department See Wage and Hour Division Land Land Management Bureau NOTICES Environmental statements; notice of intent: Geothermal resources leasing on BLM- and USFS-administered lands, 32679-32680 07-2921 Meetings: Resource Advisory Councils— Boise and Twin Falls District, 32680-32681 E7-11391 Realty actions; sales, leases, etc.: Montana, 32681-32682 E7-11421 Management Management and Budget Office See Federal Procurement Policy Office NASA National Aeronautics and Space Administration NOTICES Meetings: NASA Advisory Council, 32683-32684 E7-11330 National Foundation National Foundation on the Arts and the Humanities NOTICES Meetings: Arts Advisory Panel, 32684 E7-11378 NIH National Institutes of Health NOTICES Meetings: National Cancer Institute, 32672 07-2902 National Center on Minority Health and Health Disparities, 32672 07-2903 National Institute of Child Health and Human Development, 32673 07-2905 National Institute of Diabetes and Digestive and Kidney Diseases, 07-2907 32673 07-2908 National Institute of Mental Health, 32672-32673 07-2904 National Institute on Deafness and Other Communication Disorders, 32674 07-2909 Scientific Review Center, 32674-32675 07-2910 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— North Pacific Groundfish Observer Program, 32559-32562 E7-11419 Yellowfin sole, 32559 07-2927 Northeastern United States fisheries— Atlantic sea scallop, 32549-32559 07-2928 PROPOSED RULES Endangered and threatened species: Cook Inlet beluga whale Hearings, 32605 E7-11420 NOTICES Agency information collection activities; proposals, submissions, and approvals, 32617-32618 E7-11374 E7-11375 Exempted fishing permit applications, determinations, etc., 32618-32619 E7-11192 National Science National Science Foundation NOTICES Antarctic Conservation Act of 1978; permit applications, etc., 32684-32685 E7-11341 Nuclear Nuclear Regulatory Commission NOTICES *Applications, hearings, determinations, etc.:* TXU Generation Co. LP, 32685-32686 07-2929 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Father's Day (Proc. 8156), 32769-32772 07-2948 President's President's Council on Integrity and Efficiency NOTICES Senior Executive Service Performance Review Board; membership; correction, 32686-32687 E7-11377 Rural Rural Business-Cooperative Service NOTICES Grants and cooperative agreements; availability, etc.: 1890 Land-Grant Institutions Rural Entrepreneurial Outreach and Development Initiative, 32609-32616 E7-11408 Rural Rural Housing Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 32608 07-2925 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 32687-32688 E7-11367 Chicago Board Options Exchange, Inc., 32688-32691 E7-11366 E7-11371 NASDAQ Stock Market LLC, 32692-32693 E7-11369 Options Clearing Corp., 32693-32695 E7-11370 Philadelphia Stock Exchange, Inc., 32695-32697 E7-11368 SBA Small Business Administration NOTICES Disaster loan areas: Vermont, 32697 E7-11345 Social Social Security Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 32697-32700 E7-11383 State State Department NOTICES Arms Export Control Act: Commercial export licenses; congressional notifications, 32700-32702 E7-11507 Culturally significant items imported for exhibition: Eternal Ancestors: Art of the Central African Reliquary, 32702-32703 E7-11406 Louvre Atlanta: The Louvre and the Ancient World; Eye of Josephine; and Houdon in France and America, 32703 E7-11403 Oceanic Art, 32703 E7-11405 Toxic Toxic Substances and Disease Registry Agency See Agency for Toxic Substances and Disease Registry Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Transit Administration Treasury Treasury Department RULES Articles conditionally free, subject to reduced rates, etc.: U.S.-Singapore Free Trade Agreement; preferential tariff treatment and other customs-related provisions, [ **Editorial Note:** This document, appearing at 72 FR 31990 in the **Federal Register** of June 11, 2007, was inadvertently dropped from that issue's Table of Contents.] NOTICES Agency information collection activities; proposals, submissions, and approvals, 32707-32708 E7-11493 E7-11494 Wage Wage and Hour Division NOTICES Committees; establishment, renewal, termination, etc.: All Industries in American Samoa Special Industry Committee Hearing canceled, 32683 E7-11520 Separate Parts In This Issue Part II Environmental Protection Agency, 32710-32768 E7-7673 Part III Executive Office of the President, Presidential Documents, 32769-32772 07-2948 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. 72 113 Wednesday, June 13, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Agriculture Marketing Service 7 CFR Part 1215 [Docket No. AMS-FV-07-0022; FV-06-706] Popcorn Promotion, Research, and Consumer Information Order; Section 610 Review AGENCY: Agricultural Marketing Service. ACTION: Confirmation of regulations. SUMMARY: This document summarizes the results of an Agricultural Marketing Service

(AMS)review of the Popcorn Promotion, Research, and Consumer Information Program, under the criteria contained in Section 610 of the Regulatory Flexibility Act. Based upon its review, AMS has determined that the Popcorn Promotion, Research, and Consumer Information Order should be continued without change. ADDRESSES: Interested persons may obtain a copy of the review at *www.regulations.gov* or requests for copies can be sent to the Docket Clerk, Research and Promotion Branch, Fruit and Vegetable Programs (FV), Agricultural Marketing Service (AMS), USDA, Stop 0244, Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone

(202)720-9915; Fax

(202)205-2800; or e-mail: *Deborah.Simmons@usda.gov.* FOR FURTHER INFORMATION CONTACT: Sonia N. Jimenez, Research and Promotion Branch, FV, AMS, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 0634-S, Washington, DC 20250-0244; telephone:

(888)720-9917; fax:

(202)205-2800; or e-mail: ** SUPPLEMENTARY INFORMATION: The Popcorn Promotion, Research, and Consumer Information Act of 1996

(Act)(7 U.S.C. 7481 *et seq.* ) authorized the Popcorn Promotion, Research, and Consumer Information Order (Order) which is industry operated and funded, with oversight by USDA. The Order's objective is to carry out an effective and continuous coordinated program of research, development, advertising, and promotion designed to strengthen popcorns' competitive position, and to maintain and expand domestic and foreign markets for popcorn and popcorn products. The Order (7 CFR Part 1215) became effective on September 1, 1997, and was implemented in January 1998 when assessments began. The Popcorn Board (Board) collects assessments from processors of over four million pounds of popcorn per year, regardless of the country of origin of the popcorn. The assessment rate is 6 cents per hundredweight. Assessments under this program are used to fund promotional campaigns and to conduct research in the areas of U.S. marketing, and international marketing and to enable it to exercise its duties in accordance with the Order. The Order is administered by the Popcorn Board, which is composed of nine at-large processors who were appointed by the Secretary of Agriculture from nominations submitted by eligible processors. All processors of over four million pounds of popcorn annually are eligible to participate in the nomination process. All Board members serve terms of three years. The Agricultural Marketing Service published in the **Federal Register** on March 24, 2006 (71 FR 14828) its plan to review certain regulations, including the Order, (conducted under the Popcorn Promotion, Research, and Consumer Information Act), under criteria contained in Section 610 of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601-612). Because many AMS regulations impact small entities, AMS decided, as a matter of policy, to review certain regulations which, although they may not meet the threshold requirement under section 610 of the RFA, warranted review. AMS published a notice of review and request for written comments in the **Federal Register** on February 27, 2007 (72 FR 8633). The comment period ended on April 30, 2007. AMS received two comments. One commenter stated that it is a waste of tax dollars for USDA to oversee this program. In addition, the commenter stated that there is nothing about popcorn that needs to be researched and that private industry should conduct research if they so choose. Expenses under the program are covered by assessments paid by the industry. The Popcorn Board is comprised of industry members that decide the projects the Board will conduct every year. All the activities of the Board, including USDA oversight costs, are paid by the popcorn industry from the assessments collected. Accordingly, no changes will be made based on this comment. The second commenter was in favor of the program, noting that it increases awareness of popcorn. The review was undertaken to determine whether the Order should be continued without change, amended, or rescinded (consistent with the objectives of the Act) to minimize the impacts on small entities. In conducting this review, AMS considered the followings factors:

(1)The continued need for the Order;

(2)the nature of complaints or comments received from the public concerning the Order;

(3)the complexity of the Order;

(4)the extent to which the Order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local regulations; and

(5)the length of time since the Order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the Order. Currently, there are approximately 35 processors who are subject to the provisions of the Order. Processors of less than four million pounds of popcorn are exempt from assessment. AMS provides Federal oversight of the Popcorn program. The Order is not unduly complex, and AMS has not identified any Federal rules, or State and local regulations that duplicate, overlap, or conflict with the Order. Over the years, regulation changes have been made to address industry operation changes and to improve program administration. The goal of these evaluations is to assure that the Order and the regulations implemented under it fit the needs of the industry and are consistent with the Act. Based upon its review, AMS has determined that the Order should be continued without change. AMS plans to continue working with the popcorn industry in maintaining an effective program. Dated: June 7, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-11376 Filed 6-12-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05-07-017] RIN 1625-AA08 Special Local Regulations for Marine Events; Rappahannock River, Essex County, Westmoreland County, Layton, VA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing temporary special local regulations for the “2007 Rappahannock River Boaters Association Spring and Fall Radar Shootout”, power boat races to be held on the waters of the Rappahannock River near Layton, VA. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in the Rappahannock River during the event. DATES: This rule is effective from 11:30 a.m. to 4:30 p.m. on June 30, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD05-07-017) and are available for inspection or copying at Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Marine Events Coordinator, Fifth Coast Guard District, at

(757)398-6204. SUPPLEMENTARY INFORMATION: Regulatory Information On April 11, 2007, we published a notice of proposed rulemaking

(NPRM)entitled Special Local Regulations for Marine Events; Rappahannock River, Essex County, Westmoreland County, Layton, VA in the **Federal Register** (72 FR 18170). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, spectator craft and other vessels transiting the event area. However, advance notifications will be made to affected waterway users via marine information broadcasts, local radio stations and area newspapers. Background and Purpose On June 30, 2007 the Rappahannock River Boaters Association

(RRBA)will sponsor the “2007 RRBA Spring Radar Shootout”, on the waters of the Rappahannock River near Layton, Virginia. The event will consist of approximately 35 powerboats participating in high-speed competitive races, traveling along a 3-mile straight line race course. Participating boats will race individually within the designated course. A fleet of spectator vessels is anticipated to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Discussion of Comments and Changes The Coast Guard did not receive comments in response to the notice of proposed rulemaking

(NPRM)published in the **Federal Register** . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Rappahannock River, near Layton, Virginia. Regulatory Evaluation This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation will prevent traffic from transiting a portion of the Rappahannock River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notification that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this temporary 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 temporary rule would not have a significant economic impact on a substantial number of small entities. This temporary rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this section of the Rappahannock River during the event. This temporary rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This temporary rule will be in effect for only a short period, from 11:30 a.m. to 4:30 p.m. on June 30, 2007. Although the regulated area will apply to a 3-mile segment of the Rappahannock River immediately east of Layton, Virginia, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard patrol commander. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and participate in the rulemaking. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This temporary rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this temporary 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 temporary 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 temporary rule would 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 temporary 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 temporary rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This temporary rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this temporary rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This temporary rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this temporary rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. Add a temporary § 100.35-T05-017 to read as follows: § 100.35-T05-017 Rappahannock River, Essex County, Westmoreland County, Layton, Virginia.

(a)*Regulated area.* The regulated area is established for the waters of the Rappahannock River, adjacent to Layton, VA, from shoreline to shoreline, bounded on the west by a line running along longitude 076°58′30″ W, and bounded on the east by a line running along longitude 076°56′00″ W. All coordinates reference Datum NAD 1983.

(b)*Definitions.*

(1)*Coast Guard Patrol Commander* means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector Hampton Roads.

(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector Hampton Roads with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

(c)*Regulations.*

(1)Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.

(2)The operator of any vessel in the regulated area shall:

(i)Stop the vessel immediately when directed to do so by any Official Patrol and then proceed only as directed.

(ii)All persons and vessels shall comply with the instructions of the Official Patrol.

(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course.

(d)*Enforcement period.* This section will be enforced from 11:30 a.m. to 4:30 p.m. on June 30, 2007. Dated: May 23, 2007. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E7-11342 Filed 6-12-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-006] RIN 1625-AA00 Safety Zone; Chicago Harbor, Navy Pier Southeast, Chicago, IL AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard has established a Safety Zone in Chicago Harbor. This zone is intended to restrict vessels from portions of Chicago Harbor during fireworks displays that pose a hazard to public safety. This zone is necessary to protect the public from the hazards associated with fireworks displays. DATES: This rule is effective June 28, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD09-07-006] and are available for inspection or copying at Coast Guard Sector Lake Michigan (spw), 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at

(414)747-7154. SUPPLEMENTARY INFORMATION: Regulatory Information On May 4 2007, we published a notice of proposed rulemaking

(NPRM)entitled Safety Zone, Chicago Harbor, Navy Pier Southeast, Chicago, IL. in the **Federal Register** (72 FR 25217). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after Publication in the **Federal Register** . Any delay encountered in the regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Chicago Harbor during fireworks displays, thus ensuring that the maritime public is protected from any potential harm associated with such an event. Background and Purpose This safety zone is necessary to protect vessels and people from the hazards associated with fireworks displays. Such hazards include the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm. Discussion of Comments and Changes No comments were received concerning this final rule. No changes were made. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that this safety zone and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule establishes a safety zone area and as such is covered by this paragraph. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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 § 165.931 to read as follows: § 165.931 Safety Zone, Chicago Harbor, Navy Pier Southeast, Chicago IL.

(a)*Location* . The following area is a safety zone: The waters of Lake Michigan within Chicago Harbor between the east end of the Chicago Lock guide wall and the Chicago Harbor breakwater beginning at 41°53′24″ N, 087°35′26″ W; then south to 41°53′09″ N, 087°35′26″ W; then east to 41°53′09″ N, 087°36′09″ W; then north to 41°53′24″ N, 087°36′09″ W; then back to the point of origin.

(b)*Definitions* . The following definitions apply to this section:

(1)*Designated representative* means any Coast Guard commissioned, warrant, or petty officer designated by the Captain of the Port Lake Michigan to monitor this safety zone, permit entry into this zone, give legally enforceable orders to persons or vessels within this zone and take other actions authorized by the Captain of the Port.

(2)*Public vessel* means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof.

(c)*Regulations* .

(1)The general regulations in 33 CFR 165.23 apply.

(2)All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or a designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

(3)All vessels must obtain permission from the Captain of the Port or a designated representative to enter, move within or exit the safety zone established in this section when this safety zone is enforced. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

(d)*Notice of Enforcement or Suspension of Enforcement* . The safety zone established by this section will be enforced only upon notice of the Captain of the Port. The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the **Federal Register** as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended.

(e)*Exemption* . Public vessels as defined in paragraph

(b)of this section are exempt from the requirements in this section.

(f)*Waiver* . For any vessel, the Captain of the Port Lake Michigan or a designated representative may waive any of the requirements of this section, upon finding that operational conditions or other circumstances are such that application of this section is unnecessary or impractical for the purposes of safety or environmental safety. Dated: June 5, 2007. Bruce C. Jones, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. [FR Doc. E7-11340 Filed 6-12-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-008] RIN 1625-AA00 Safety Zone; Milwaukee Harbor, Milwaukee, WI AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard has established a safety zone in Milwaukee Harbor near Lakeshore State Park. This zone will restrict vessels from portions of Milwaukee Harbor during fireworks displays. This zone is necessary to protect the public from the hazards associated with fireworks displays. DATES: This rule is effective June 28, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD09-07-008] and are available for inspection or copying at Coast Guard Sector Lake Michigan (spw), 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at

(414)747-7154. SUPPLEMENTARY INFORMATION: Regulatory Information On May 4, 2007, we published a notice of proposed rulemaking

(NPRM)entitled Safety Zone, Milwaukee Harbor, Milwaukee, WI in the **Federal Register** (72 FR 25226). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Any delay encountered in the regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Milwaukee Harbor during fireworks displays, thus ensuring that the maritime public is protected from any potential harm associated with such an event. Background and Purpose There are approximately twenty fireworks displays launched annually at Lakeshore State Park in Milwaukee, WI. The fireworks displays are sponsored festivals located at Henry W. Maier Festival Park. The fireworks displays impact the navigable waters of Milwaukee Harbor and pose a hazard to vessels and people. This rule establishes a limited access area around the fireworks launch site to protect vessels and people from the hazards associated with fireworks displays. Such hazards include the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm. Discussion of Comments and Changes No comments were received concerning this final rule. However, the published Notice of Proposed Rule Making contained an error concerning the coordinates for this safety zone. The northeast coordinate of the safety zone was incorrect and has been changed to 43°02′00″ N, 087°53′25″ W. No other changes have been made. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The Coast Guard's use of this safety zone will be periodic in nature and will likely not exceed twenty, three-hour events, per year. This safety zone has been designed to allow vessels to transit unrestricted to portions of the harbor not affected by the zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this zone. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that this safety zone and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule establishes a safety zone and as such is covered by this paragraph. A final “Environmental Analysis Check List” and a final Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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 § 165.935 to read as follows: § 165.935 Safety Zone, Milwaukee Harbor, Milwaukee, WI.

(a)*Location.* The following area is a safety zone: the waters of Lake Michigan within Milwaukee Harbor including the Harbor Island Lagoon enclosed by a line connecting the following points: beginning at 43°02′00″ N, 087°53′53″ W; then south to 43°01′44″ N, 087°53′53″ W; then east to 43°01′44″ N, 087°53′25″ W; then north to 43°02′00″ N, 087°53′25″ W; then west to the point of origin.

(b)*Definitions.* The following definitions apply to this section:

(2)*Public vessel* means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof.

(c)*Regulations.*

(1)The general regulations in 33 CFR 165.23 apply.

(d)*Notice of Enforcement or Suspension of Enforcement.* The safety zone established by this section will be enforced only upon notice of the Captain of the Port. The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the **Federal Register** as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended.

(e)*Exemption.* Public vessels as defined in paragraph

(b)of this section are exempt from the requirements in this section.

(f)*Waiver.* For any vessel, the Captain of the Port Lake Michigan or a designated representative may waive any of the requirements of this section, upon finding that operational conditions or other circumstances are such that application of this section is unnecessary or impractical for the purposes of safety or environmental safety. Dated: June 5, 2007. Bruce C. Jones, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. [FR Doc. E7-11339 Filed 6-12-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-007] RIN 1625-AA00 Safety Zone; Chicago Harbor, Navy Pier East, Chicago, IL AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard has established a Safety Zone in Chicago Harbor. This zone will restrict vessels from portions of Chicago Harbor during fireworks displays that pose a hazard to public safety. This zone is necessary to protect the public from the hazards associated with fireworks displays. DATES: This rule is effective June 28, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD09-07-007] and are available for inspection or copying at Coast Guard Sector Lake Michigan (spw), 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at

(414)747-7154. SUPPLEMENTARY INFORMATION: Regulatory Information On May 7, 2007, we published a notice of proposed rulemaking

(NPRM)entitled Safety Zone, Chicago Harbor, Navy Pier East, Chicago, IL. in the **Federal Register** (72 FR 25720). We received no letters commenting on the rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after Publication in the **Federal Register** . Any delay encountered in the regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Chicago Harbor during fireworks displays, thus ensuring that the maritime public is protected from any potential harm associated with such an event. Background and Purpose This safety zone is necessary to protect vessels and people from the hazards associated with fireworks displays. Such hazards include the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm. Discussion of Comments and Changes No comments were received concerning this final rule. No changes were made. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The Coast Guard's use of this safety zone will be periodic in nature and will likely not exceed 10, one-hour events per year. This safety zone will only be enforced during the time the safety zone is actually in use. Furthermore, this safety zone has been designed to allow vessels to transit unrestricted to portions of the harbor not affected by the zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this zone. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that this safety zone and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule establishes a safety zone and as such is covered by this paragraph. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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 § 165.933 to read as follows: § 165.933 Safety Zone, Chicago Harbor, Navy Pier East, Chicago IL.

(a)*Location.* The following area is a safety zone: The waters of Lake Michigan within Chicago Harbor between the east end of Navy Pier and the Chicago Harbor breakwater beginning at 41°53′37″ N, 087°35′26″ W; then south to 41°53′24″ N, 087°35′26″ W; then east to 41°53′24″ N, 087°35′55″ W; then north to 41°53′37″ N, 087°35′55″ W; then back to the point of origin.

(b)*Definitions.* The following definitions apply to this section:

(1)*Designated representative* means any Coast Guard commissioned, warrant, or petty officer designated by the Captain of the Port Lake Michigan to monitor this safety zone, permit entry into this zone, give legally enforceable orders to persons or vessels within this zones and take other actions authorized by the Captain of the Port.

(2)*Public vessel* means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof.

(c)*Regulations.*

(1)The general regulations in 33 CFR 165.23 apply.

(2)All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port Lake Michigan or a designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

(3)All vessels must obtain permission from the Captain of the Port Lake Michigan or a designated representative to enter, move within or exit the safety zone established in this section when this safety zone is enforced. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

(d)*Notice of Enforcement or Suspension of Enforcement.* The safety zone established by this section will be enforced only upon notice of the Captain of the Port. The Captain of the Port Lake Michigan will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the **Federal Register** as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended.

(e)*Exemption.* Public vessels as defined in paragraph

(b)of this section are exempt from the requirements in this section.

(f)*Wavier.* For any vessel, the Captain of the Port Lake Michigan or a designated representative may waive any of the requirements of this section, upon finding that operational conditions or other circumstances are such that application of this section is unnecessary or impractical for the purposes of safety or environmental safety. Dated: June 6, 2007. Bruce C. Jones, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. [FR Doc. E7-11343 Filed 6-12-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA-HQ-OAR-2001-0004; FRL-8324-6] RIN 2060-AN92 Prevention of Significant Deterioration

(PSD)and Nonattainment New Source Review (NSR): Removal of Vacated Elements AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is amending its regulations to eliminate the pollution control project

(PCP)and clean unit

(CU)provisions included in its December 31, 2002 rulemaking entitled “Prevention of Significant Deterioration

(PSD)and Nonattainment New Source Review (NSR): Baseline Emissions Determination, Actual-to-future-actual Methodology, Plantwide Applicability Limitations, Clean Units, Pollution Control Projects.” This final rule conforms the regulations to the decision by the U.S. Court of Appeals for the D.C. Circuit, *New York* v. *EPA,* 413 F.3d 3 (D.C. Cir. 2005), vacating the PCP and CU provisions. This action is exempt from notice-and-comment rulemaking because it is ministerial in nature. DATES: This final rule is effective on June 13, 2007. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2001-0004. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the EPA Docket Center (Air Docket), EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

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

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. David Painter, Office of Air Quality Planning and Standards, (C504-03), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number

(919)541-5515, fax number

(919)541-5509, e-mail: *painter.david@epa.gov.* SUPPLEMENTARY INFORMATION: I. Does This Regulation Apply to Me? Entities potentially affected by this final action include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups. Industry group SIC a NAICS b Electric Services 491 221111, 221112, 221113, 221119, 221121, 221122. Petroleum Refining 291 32411. Chemical Processes 281 325181, 32512, 325131, 325182, 211112, 325998, 331311, 325188. Natural Gas Transport 492 48621, 22121. Pulp and Paper Mills 261 32211, 322121, 322122, 32213. Paper Mills 262 322121, 322122. Automobile Manufacturing 371 336111, 336112, 336712, 336211, 336992, 336322, 336312, 33633, 33634, 33635, 336399, 336212, 336213. Pharmaceuticals 283 325411, 325412, 325413, 325414. a Standard Industrial Classification b North American Industry Classification System. Entities potentially affected by this final action also include State, local, and tribal governments that are delegated authority to implement these regulations. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in parts 51 and 52 of title 40 of the Code of Federal Regulations. II. Background and Rationale for Action On December 31, 2002, EPA published a final rule (67 FR 80186) which established CU and expanded upon provisions pertaining to PCP which were initially promulgated on July 21, 1992 (57 FR 32314). On June 24, 2005, the United States Court of Appeals for the District of Columbia Circuit (the Court) issued an opinion vacating those portions of the 2002 and 1992 rules that pertained to CU and PCP. *New York v. EPA* , 413 F.3d 3 (D.C. Cir.), reh'g. and reh'g. en banc den. 431 F.3d 801 (2005). This action removes from the Code of Federal Regulations

(CFR)all provisions for CU and PCP containing the provisions vacated by the Court. It should be noted that nearly identical CU and PCP provisions are found in 40 CFR 52.21, 51.165, and 51.166, and that the Court's opinion specifically addressed the CU and PCP provisions in § 52.21, but not the provisions in §§ 51.165 and 51.166. Even so, the plain language of the Court's opinion clearly applies to the parallel constructions in those latter provisions; and as a result, today's action removes those provisions as well. Because the Court vacated the language of the CU and PCP provisions as well as the legal constructs upon which they were based, the EPA is rescinding the CU and PCP provisions by way of a final rulemaking which is effective upon publication in the **Federal Register** . We are not providing an opportunity for comment. The Administrative Procedure Act of 1946

(APA)makes provision for the procedural path we are following in this action. In general, the APA requires that general notice of proposed rulemaking shall be published in the **Federal Register** . Such notice must provide an opportunity for public participation in the rulemaking process. The APA does provide an avenue for an agency to directly issue a final rulemaking in certain specific instances. This may occur, in particular, when an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. *See* 5 U.S.C. 553(b)(3)(B). In this action, the Agency finds that notice and comment is unnecessary. This action is ministerial in nature. It simply implements the decision of the D.C. Circuit as it pertains to CU and PCP. In addition, notice and comment would be contrary to the public interest by unnecessarily delaying the removal of the unlawful CU and PCP provisions in the CFR. Owner/operators of facilities capable of causing air pollution are subject to CAA regulations governing the manner in which they might act. Substantial costs are frequently associated with project delays or inappropriate actions. To resolve regulatory concerns up front, those who would pursue projects which might be subject to Federal restrictions rely upon the CFR to provide authoritative answers as to what requirements apply to a given proposed project. III. Implementation For the reasons cited above, EPA is making this action effective upon publication. *See* 5 U.S.C. 553(d)(3). This action removes content from the CFR that has been found to be contrary to the CAA by a Federal appeals court. This is a ministerial but necessary action on the part of the EPA. Given the substantial costs to owner/operators of projects associated with delays and uncertainty, EPA has good cause to act in the public interest to implement the court's remedy by amending the CFR without delay. The Court's vacatur of PCP and CU provisions meant that these provisions could no longer be used. Thus, today's rule changes are immediately effective for jurisdictions using the Federal PSD program (codified at § 52.21 for areas without an approved PSD program, for which we are the reviewing authority, or for which we have delegated our authority to issue permits to a State or local reviewing authority) and for State and local agency programs implementing part C (PSD permit program in § 51.166) or part D (nonattainment NSR permit program in § 51.165) under an approved State Implementation Plan (SIP). Permitting authorities with approved SIPs containing any or all of the 2002 CU, 2002 PCP, or 1992 PCP provisions should remove those provisions as soon as feasible, which may be in conjunction with the next available SIP revision. Furthermore, recognizing that some States also adopted our past guidance policy on PCP 1 into their approved SIPs, we believe that these portions of their SIPs should also be removed in light of the Court decision. 2 Because of the Court decision, these provisions are unlawful and may not be applied even prior to their removal from the SIPs. 1 Memorandum dated July 1, 1994. “Pollution Control Projects and New Source Review

(NSR)Applicability” from John S. Seitz, Director, Office of Air Quality Planning and Standards, to Air Directors, Regions I-X. 2 In its Opinion, the Court stated on pages 8-9 that “EPA also erred in exempting from NSR certain Pollution Control Projects (“PCPs”) that decrease emissions of some pollutants but cause collateral increases of others. The statute authorizes no such exception.” IV. Statutory and Executive Order Reviews The Office of Management and Budget

(OMB)determined this rule is a significant regulatory action for the purpose of EO 12866 and requested that we submit the rule for OMB review. It does not meet requirements for review under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). It also does not meet the requirements for review under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Pub. L. 104-4), Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), Executive Order 13175, entitled Consultation and Coordination With Indian Tribal Governments (65 FR 67249, November 9, 2000), Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), or Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). In addition, this rule does not impose any impact on small entities and thus does not require preparation of a regulatory flexibility analysis under the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq* .). The deletion of CU and PCP provisions from NSR and PSD requirements will reduce the associated overall reporting and recordkeeping burden estimates, but this action does not require any review or approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* At some point in the future, EPA will re-determine the total burden associated with the NSR and PSD rules and will adjust the estimates to reflect the effects of this action. The reporting and recordkeeping burdens associated with NSR and PSD are approved by OMB under OMB No. 2060-0003. The current public reporting burden for NSR and PSD is estimated to be 4,878,634 hours. These estimates include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Pursuant to the Congressional Review Act, 5 U.S.C. 801 *et seq* ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . However, section 808 of that Act provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rule) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 13, 2007. This rule is not a “major rule” as defined by 5 U.S.C. 804(2). V. Statutory Authority The statutory authority for this action is provided by sections 165-169, 171-173, and 301 of the Act as amended (42 U.S.C. 7475-7479, 7501-7503, and 7601). This rulemaking is also subject to section 307(d) of the Act (42 U.S.C. 7407(d)). VI. Judicial Review Under section 307(b)(1) of the Act, judicial review of this final rule is available only by the filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by August 13, 2007. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Under section 307(b)(2) of the Act, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements. List of Subjects 40 CFR Part 51 Environmental protection, Administrative practices and procedures, Air pollution control, Baseline emissions, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate matter, Plantwide applicability limitations, Pollution control projects, Sulfur oxides. 40 CFR Part 52 Environmental protection, Administrative practices and procedures, Air pollution control, Baseline emissions, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate matter, Plantwide applicability limitations, Pollution control projects, Sulfur oxides. Dated: June 5, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. Subpart I—[Amended] 2. Section 51.165 is amended as follows: a. By removing and reserving paragraph (a)(1)(v)(C)( *8* ). b. By removing paragraph (a)(1)(vi)(C)( *3* ). c. By removing paragraph (a)(1)(vi)(E)( *5* ). d. By removing and reserving paragraph (a)(1)(xxv). e. By removing and reserving paragraph (a)(1)(xxix). f. By removing and reserving paragraph (a)(2)(ii)(E). g. By revising paragraph (a)(2)(ii)(F). h. By removing paragraph (a)(2)(iv). i. By removing and reserving paragraphs (a)(3)(ii)(H) and (I). j. By revising paragraph (a)(6) introductory text. k. By removing and reserving paragraphs (c), (d), and (e). § 51.165 Permit requirements.

(a)* * *

(2)* * *

(ii)* * *

(F)*Hybrid test for projects that involve multiple types of emissions units.* A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(2)(ii)(C) through

(D)of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section).

(6)Each plan shall provide that the following specific provisions apply to projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner or operator elects to use the method specified in paragraphs (a)(1)(xviii)(B)( *1* ) through ( *3* ) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(6)(i) through

(v)of this section. 3. Section 51.166 is amended as follows: a. By removing and reserving paragraph (a)(7)(iv)( *e* ). b. By revising paragraph (a)(7)(iv)( *f* ). c. By removing paragraph (a)(7)(vi). d. By removing and reserving paragraph (b)(2)(iii)( *h* ). f. By removing paragraph (b)(3)(vi)( *d* ). g. By removing and reserving paragraph (b)(31). h. By removing and reserving paragraph (b)(41). i. By revising paragraph (r)(6) introductory text. j. By removing and reserving paragraphs (t), (u), and (v). § 51.166 Prevention of significant deterioration of air quality.

(a)* * *

(7)* * *

(iv)* * * ( *f* ) *Hybrid test for projects that involve multiple types of emissions units.* A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(7)(iv)( *c* ) through ( *d* ) of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

(r)* * *

(6)Each plan shall provide that the following specific provisions apply to projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner or operator elects to use the method specified in paragraphs (b)(40)(ii)( *a* ) through ( *c* ) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (r)(6)(i) through

(v)of this section. PART 52—[AMENDED] 4. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[Amended] 5. Section 52.21 is amended as follows: a. By removing and reserving paragraph (a)(2)(iv)( *e* ). b. By revising paragraph (a)(2)(iv)( *f* ). c. By removing paragraph (a)(2)(vi). d. By removing and reserving paragraph (b)(2)(iii)( *h* ). e. By removing paragraph (b)(3)(vi)( *d* ). f. By removing and reserving paragraph (b)(32). g. By removing and reserving paragraph (b)(42). h. By revising paragraph (r)(6) introductory text. j. By removing and reserving paragraphs (x), (y), and

(z)§ 52.21 Prevention of significant deterioration of air quality.

(a)* * *

(2)* * *

(iv)* * * ( *f* ) *Hybrid test for projects that involve multiple types of emissions units.* A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(2)(iv)( *c* ) through ( *d* ) of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

(r)* * *

(6)The provisions of this paragraph (r)(6) apply to projects at an existing emissions unit at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner or operator elects to use the method specified in paragraphs (b)(41)(ii)( *a* ) through ( *c* ) of this section for calculating projected actual emissions. [FR Doc. E7-11289 Filed 6-12-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2006-0590; FRL-8325-8] Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Request for Rescission AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is finalizing the rescission of the Federal implementation plan promulgated under the Clean Air Act for the regulation of fugitive sulfur oxides emissions from a copper smelter that had operated in the State of Nevada but that is no longer in existence. This rescission was proposed in the **Federal Register** on August 28, 2006. The intended effect is to rescind unnecessary provisions from the applicable plan. DATES: *Effective Date:* This rule is effective on July 13, 2007. ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0590 for this action. The index to the docket is available electronically at *http://regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Julie A. Rose, EPA Region IX,

(415)947-4126, *rose.julie@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. Proposed Action II. Public Comments and EPA's Response III. EPA Action IV. Statutory and Executive Order Reviews I. Proposed Action On August 28, 2006 (71 FR 50875), EPA proposed approval and disapproval of portions of the State's rescission request and approval of certain replacement provisions. One of the rescission requests for which we proposed approval involved a Federal implementation plan

(FIP)that we promulgated in the 1970's at 40 CFR 52.1475(c), (d), and

(e)to regulate sulfur oxides from the Kennecott Copper Company smelter located in White Pine County, Nevada. As described further in our Technical Support Document

(TSD)for the proposed rule, we found that the last vestige of the Kennecott Copper Company McGill facility, which was the subject of the FIP requirements in 52.1475, was removed from the area in 1993, and, therefore, the related FIP provisions are obsolete. The TSD contains more information about our proposed action. On January 3, 2007 (72 FR 11), we took final action on most of the provisions for which we had proposed action on August 28, 2006. This is the second final action related to our August 28, 2006 proposal. We will take final action on the remaining few provisions for which we proposed action on August 28, 2006 in a third separate action. II. Public Comments and EPA Responses EPA's proposed action provided a 30-day public comment period. During this period, we received no comments related to the proposed rescission of the FIP for regulation of the Kennecott Copper Company smelter in White Pine County, Nevada. III. EPA Action As authorized in section 110(k)(3) of the Clean Air Act, EPA is finalizing the approval of the rescission of the Federal implementation plan promulgated for the regulation of fugitive sulfur oxides emissions from the Kennecott Copper Company smelter that had operated in White Pine County, Nevada, but that is no longer in existence. EPA is codifying this action by revising 40 CFR 52.1475 to remove paragraphs (c), (d), and (e). IV. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review The Office of Management and Budget

(OMB)has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” This action will rescind a Federally promulgated rule for an air pollution emissions source that no longer exists. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This action will merely rescind a Federally promulgated rule for an air pollution emissions source that no longer exists. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

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

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this rule will not have a significant impact on a substantial number of small entities because this rule merely rescinds a Federally promulgated rule for an air pollution emissions source that no longer exists. D. Unfunded Mandates Reform Act Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that this final rule does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action rescinds a Federally promulgated rule for an air pollution emissions source that no longer exists, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132, Federalism Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely rescinds a Federally promulgated rule for an air pollution emissions source that no longer exists, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175, Coordination With Indian Tribal Governments Executive Order 13175, entitled (Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that:

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

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045, Protection of Children from Environmental Health risks and Safety Risks” (62 FR 19885, April 23, 1997), because it finalizes the rescission of a federally promulgated rule. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use (voluntary consensus standards”

(VCS)if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS. J. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Because this rule amendment rescinds a federal implementation plan for a source that has closed down, this rule amendment that does not relax the control measures on sources regulated by the rule and therefore will not cause emissions increases from these sources. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 13, 2007. L. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: June 5, 2007. Stephen L. Johnson, Administrator. Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart DD—Nevada § 52.1475 [Amended] 2. Section 52.1475 is amended by removing paragraphs (c), (d), and (e). [FR Doc. E7-11321 Filed 6-12-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0716; FRL-8319-8] Approval and Promulgation of Air Quality Implementation Plans; Indiana; Exemption from VOC Requirements for Sources Subject to the National Emission Standards for Hazardous Air Pollutants for Boat Manufacturing or Reinforced Plastics Composites Manufacturing AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is approving a revision to the Indiana Department of Environmental Management's

(IDEM)volatile organic compound

(VOC)rules for new facilities into the Indiana State Implementation Plan (SIP). This revised rule, submitted by IDEM on July 17, 2006, exempts facilities subject to the boat manufacturing and reinforced plastics composites production national emission standards for hazardous air pollutants (NESHAPS) from the requirement to do a case-by-case State Best Available Control Technology

(BACT)analysis under the Indiana SIP, provided that they comply with the applicable NESHAPS. This rule revision is approvable because the only hazardous air pollutant covered by these NESHAPS rules is styrene, a toxic substance which is also classified as a VOC. Therefore, the VOC control requirements in these rules are always applicable. In addition, the provisions in these rules are enforceable and result in a clearly defined level of VOC reductions dependent upon the specific type of operation. These rules were proposed for approval on January 25, 2007, and comments were received supporting EPA's approval. DATES: This final rule is effective on July 13, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0716. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Steven Rosenthal, Environmental Engineer, at

(312)886-6052 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6052, *rosenthal.steven@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: I. What Public Comments Were Received on the Proposed Approval and What is EPA's Response? II. What Action is EPA Taking and What is the Reason for this Action? III. Statutory and Executive Order Reviews I. What Public Comments Were Received on the Proposed Approval and What Is EPA's Response? *Comment:* EPA received one comment on its January 25, 2007 proposal. The American Composites Manufacturers Association

(ACMA)stated that it agreed with EPA that the VOC emissions from these facilities are subject under the NESHAPS to enforceable emission reductions, and added that an additional requirement to comply with the SIP VOC rules would place a redundant and unnecessary administrative burden on both the facilities and Indiana. ACMA referenced a study conducted for it in 2003 that concluded that a facility that meets the NESHAPS requirements would also comply with VOC SIP requirements, including lowest achievable emission rate (LAER), BACT and reasonably available control technology (RACT). ACMA strongly supports EPA's approval of this proposed amendment to the Indiana SIP. *EPA response:* Although ACMA stated its strong support for EPA approval of this exemption for new sources subject to the boat manufacturing and reinforced plastic composites production NESHAPS, it claimed that a facility meeting the NESHAPS requirements would also meet LAER, BACT and RACT. LAER is the new source control requirement for nonattainment areas, as required by 326 IAC 2-3 (Nonattainment New Source Review). Best available control technology, in the context of ACMA's comment, appears to refer to the new source control requirement for attainment areas, as required by 326 IAC 2-2 (Prevention of Significant Deterioration). (Please note that this is not the same BACT analysis performed by the State under SIP rule 326 IAC 8-1-6). RACT is the VOC control SIP requirement for existing sources in ozone nonattainment areas. In contrast to NESHAPS requirements, LAER and BACT are the result of case-by-case analyses which, as new and improved control technologies are introduced, tend to become more stringent over time. EPA has established a presumptive norm for RACT for a number of source categories, not including boat manufacturing and reinforced plastic composites production. For these other categories, RACT is a case-by-case analysis based upon the technical and economic feasibility of control, in contrast to the subject NESHAPS, which were based upon a set of industry average parameters. II. What Action Is EPA Taking and What Is the Reason for This Action? EPA is approving Indiana's revision to its SIP consisting of an amendment to 326 IAC 8-1-6, new facilities; general reduction requirements. This rule exempts boat manufacturers subject to 326 IAC 20-48, NESHAPS for boat manufacturing, or reinforced plastics composites manufacturers subject to 326 IAC 20-56, NESHAPS for reinforced plastics composites production facilities, from the requirement to do a case-by-case State BACT analysis, for the purposes of 326 IAC 8-1-6, provided they comply with the applicable NESHAPS. Previously, new boat manufacturing or reinforced plastics composites manufacturing facilities with potential emissions of 25 tons or more per year of VOC were required to reduce VOC emissions by using BACT under 326 IAC 8-1-6. In this case, establishing specific standards in place of a case-by-case analysis improves the clarity, predictability, and timeliness of permit decisions that are currently subject to 326 IAC 8-1-6. It should be noted, however, that approval of this exemption to 326 IAC 8-1-6 does not address (or take action on) whether the boat manufacturing or reinforced plastics composites production NESHAPS represent RACT, BACT (under PSD) or LAER (under Nonattainment New Source Review). III. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). Regulatory Flexibility Act This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Unfunded Mandates Reform Act Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. National Technology Transfer Advancement Act In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( *See* Section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: May 18, 2007. Gary Gulezian, Acting Regional Administrator, Region 5. For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart P—Indiana 2. Section 52.770 is amended by adding paragraph

(179)to read as follows: § 52.770 Identification of plan.

(c)* * *

(179)On July 17, 2006, Indiana submitted final adopted revisions, which add 326 IAC 8-1-6 (3)(B) and (C), to its VOC rules for new facilities in 326 IAC 8-1-6 as a requested revision to the Indiana state implementation plan. EPA is approving these revisions, which exempt boat manufacturers subject to NESHAPS for boat manufacturing, or reinforced plastics composites manufacturers subject to NESHAPS for reinforced composites production facilities, from the requirement to do a best available control technology analysis provided they comply with the applicable NESHAPS.

(i)Incorporation by reference.

(A)Indiana Administrative Code Title 326: Air Pollution Control Board, Article 8: Volatile Organic Compound Rules, Rule 1: General Provisions, Section 6: New facilities; general reduction requirements. Final adopted by the Air Pollution Control Board on March 1, 2006. Filed with the Secretary of State on May 25, 2006, and became effective June 23, 2006. Published in the Indiana Register on July 1, 2006 (29 IR 3350). [FR Doc. E7-11290 Filed 6-12-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0559; FRL-8133-2] Diuron; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for diuron in or on cactus (with regional restrictions for use); spearmint, tops; peppermint, tops; and fish-freshwater finfish, farm raised. Interregional Research Project Number 4 (IR-4) and the Catfish Farmers of America requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective June 13, 2007. Objections and requests for hearings must be received on or before August 13, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0559. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is

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

(703)305-6463; e-mail address: *madden.barbara@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0559 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before August 13, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2006-0559, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

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

(703)305-5805. II. Petition for Tolerance In the **Federal Register** of July 26, 2006 (71 FR 42390) (FRL-8079-4), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filings of a pesticide petitions (PP 2E6438, 6E3390 and 6F4680) by Interregional Research Project Number 4 (IR-4), 681 Highway 1 South, North Brunswick, NJ 08902 and the Catfish Farmers of America, 1100 Hwy. 82 East, Suite 202, Indianola, MS 38751. The petitions requested that 40 CFR 180.106 be amended by establishing tolerances for residues of the herbicide diuron (3-(3,4-dichlorophenyl)-1,1-dimethylurea in or on cactus, prickly pear at 0.05 part per million

(ppm)(6E3390), mint at 1.5 ppm (2E6438) and freshwater finfish, farm raised at 2.0 ppm (6F4680). That notice referenced a summary of the petitions prepared by Dupont, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . Comments received on the notice of filing are discussed in Unit IV.C. Based upon review of the data supporting the petition, EPA has recommended certain changes to the petitions including: 1. Revised tolerance levels for certain commodities; 2. A revised tolerance expression to be applied to all new uses; and 3. Revised commodity terms for some commodities. The reasons for these changes are explained in Unit V. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to the FFDCA by the Food Quality Protection Act

(FQPA)of 1996. Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for combined residues of diuron (3-(3,4-dichlorophenyl)-1,1-dimethylurea and its metabolites convertible to 3,4-dichloroaniline on cactus at 0.05 ppm, spearmint, tops at 1.5 ppm, peppermint, tops at 1.5 ppm and fish - freshwater finfish, farm raised at 2.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by diuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* . The referenced document is available in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2006-0059. Additional information regarding this chemical can also be found in the docket for the reregistration eligibility decision

(RED)for diuron identified as EPA-HQ-OPP-2002-0249. Diuron has low acute toxicity (Toxicity Category 3-4) by the oral, dermal, or inhalation exposure routes. Diuron is not an eye or skin irritant, and not a skin sensitizer. The primary target organs are the hematopoietic system, the bladder, and renal pelvis. Erythrocyte damage resulted in hemolytic anemia and compensatory hematopoiesis, which were manifested as significantly decreased erythrocyte counts, hemoglobin levels, and hematocrit, and increased mean corpuscular volume (MCV), mean corpuscular hemoglobin (MCH), abnormal erythrocyte forms, reticulocyte counts, and leukocyte count. Consistent observations of erythrocytic regeneration were seen in chronic toxicity studies in rats, mice and dogs. Gross pathology findings in chronic rat and mouse studies showed increased incidences of urinary bladder edema and wall thickening at high doses. Microscopic evaluation showed dose-related increases in the severity of epithelial focal hyperplasia of the urinary bladder and renal pelvis in both sexes. The available data did not reveal any developmental or reproductive toxicity. The Carcinogenicity Peer Review Committee

(CPRC)characterized diuron as a “known/likely” human carcinogen based on urinary bladder carcinomas in both sexes of the Wistar rat, kidney carcinomas in the male rat, and mammary gland carcinomas in the female NMRI mouse. Diuron was not mutagenic in bacteria or in cultured mammalian cells and no indication of DNA damage in primary rat hepatocytes was observed. There were marginal statistically significant increases in cells with structural aberrations in a Sprague Dawley rat *in vivo* bone marrow chromosomal aberration assay. However, the levels of aberrations were within historical control range and assessed negative. The Metabolism Assessment Review Committee

(MARC)recommended that a separate dietary cancer assessment be conducted for N'-(3-chlorophenyl)-N,N-dimethyl urea (MCPDMU), a potential residue of concern in drinking water, but not found in food (in plant or animal metabolism studies). The MARC raised concerns for MCPDMU based on an analogous compound, N'-(4-chlorophenyl)-N,N-dimethyl urea (monuron). With the exception of the position of the chlorine, the structures are identical. There are cancer concerns for monuron but the target organs are different than those affected by diuron. In the absence of the data needed for a more comprehensive evaluation of MCPDMU, the carcinogenic risk assessment was conducted using the Q 1 * of monuron. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern

(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors

(UF)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. Short-, intermediate, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for diruon used for human risk assessment can be found at *www.regulations.gov* in document Diuron. Updated Aggregate Risk Assessment to Support Permanent Tolerances for Residues in Prickly Pear Cactus, Peppermint Tops, Spearmint Tops, and Freshwater Finfish, Farm-Raised at page 4 in Docket ID EPA-HQ-OPP-2006-0059. There are no adverse effects attributed to a single exposure identified in any available studies for diuron. In addition, diuron has low acute toxicity and no developmental or neurotoxic concerns. Therefore, no acute dietary endpoint was chosen and no acute dietary risk assessment was conducted. Also, no systemic toxicity was observed following repeated dermal dosing up to 1,200 mg/kg/day. Therefore, no short- or intermediate-term dermal endpoints were chosen either. The short-term incidental oral and the inhalation endpoints are based on decreased maternal body weight and food consumption observed in a rabbit developmental toxicity study [No Observable Adverse Effect Level (NOAEL) = 10 mg/kg/day]. The intermediate-term incidental oral and intermediate-term inhalation endpoints are based on hematological effects observed at 10 mg/kg at 6 months in the chronic rat study. The NOAEL is 1 mg/kg/day. The chronic dietary, and long-term dermal and inhalation endpoints are based on hemolytic anemia and compensatory hematopoiesis [Lowest Observable Adverse Effect Level (LOAEL) = 1.0 mg/kg/day]. Since the dose and endpoint for establishing the chronic dietary reference Dose

(RfD)is a LOAEL and a NOAEL was not established, a total uncertainty factor

(UF)of 1,000 was applied (a UF of 100 to account for both interspecies extrapolation and intra-species variability and an UF of 10 since the 10X FQPA safety factor has been retained to protect infants and children). A low dose linear extrapolation model with a Q 1 * of 1.91 x 10 - 2 (mg/kg/day) - 1 was applied to the animal data for the quantification of human risk to diuron, based on the urinary bladder carcinomas in the rat. As discussed in Unit III.A., a separate dietary cancer assessment was conducted for N'-(3-chlorophenyl)-N,N-dimethyl urea (MCPDMU), a potential residue of concern in drinking water, but not found in food. A low dose linear extrapolation model with a Q 1 * of 1.52 x 10 - 2 (mg/kg/day) - 1 was applied to the animal data for the quantification of human risk, based on male rat liver neoplastic nodule and/or carcinoma combined tumor rates. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to diuron, EPA considered exposure under the petitioned-for tolerances as well as all existing diuron tolerances in (40 CFR 180.106). EPA assessed dietary exposures from diuron and its metabolites convertible to 3,4-dichloroaniline in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. No such effects were identified in the toxicological studies for diuron; therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, the EPA analyses incorporated tolerance level residues for some commodities as well as anticipated residues

(ARs)for other commodities, based on a combination of average field trial data and USDA/Pesticide Data Program

(PDP)monitoring data. The chronic exposure estimates were further refined with percent crop treated

(PCT)information for some crops. In some cases, DEEM

(TM)(ver. 7.78) default processing factors were used, but empirical processing factors were used when available. iii. *Cancer* . —a. *Diuron.* In conducting the cancer dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, the EPA analyses incorporated tolerance level residues for some commodities as well as anticipated residues

(ARs)for other commodities, based on a combination of average field trial data and USDA PDP monitoring data. The cancer exposure estimates were further refined with PCT information for some crops. In some cases, DEEM

(TM)(ver. 7.78) default processing factors were used, but empirical processing factors were used when available. b. *MCPDMU* . EPA has identified MCPDMU as a potential residue of concern of diuron that may be found in drinking water but not found in food. In the absence of a metabolism study in fish, based on potential concern for residues of the drinking water, EPA conducted an assessment based on a worst-case dietary exposure analysis for the degradate MCPDMU, including residues in drinking water and a conservative estimate of potential residues in fish. EPA estimated the MCPDMU drinking water residue value of 1 ppb, based on monitoring data and assumed 25% (i.e., 0.5 ppm) of the residue in fish could be attributed to the degradate. This is a conservative assumption of a 500-fold accumulation of the degradate in fish, whereas acceptable metabolism studies in rat, ruminants and poultry indicate the majority of the residue in animals consists of dichlorinated and hydroxy metabolites; further, the rat metabolism study indicates diuron residues do not bioaccumulate. Therefore, the assumption that 25% of the tolerance-level residue in fish is comprised of the MCPDMU degradate is considered to be conservative. iv. *Anticipated residue and PCT information* . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) of FFDCA require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by section 408(b)(2)(E) of FFDCA and authorized under section 408(f)(1) of FFDCA. Data will be required to be submitted no later than 5 years from the date of issuance of this tolerance. Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if: a. The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; b. The exposure estimate does not underestimate exposure for any significant subpopulation group; and c. Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of FFDCA, EPA may require registrants to submit data on PCT. The Agency used PCT information as follows: 1% alfalfa, 1% almonds, 10% apples, 5% artichokes, 55% asparagus, 1% barley, 50% blackberries, 30% blueberries, 1% corn, 25% cotton, 20% filberts, 10% grapes, 45% grapefruit, 15% lemon, 50% limes, 20% Macadamia nut, 5% oats, 15% olives, 50% oranges, 10% peaches, 10% pears, 5% pecans, 90% mint, 1% pistachios, 30% raspberries, 15% sugarcane, 30% tangerines, 15% walnuts, and 1%wheat. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available federal, state, and private market survey data for that use, averaging by year, averaging across all years, and rounding up to the nearest multiple of five percent except for those situations in which the average PCT is less than one. In those cases <1% is used as the average and <2.5% is used as the maximum. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the single maximum value reported overall from available federal, state, and private market survey data on the existing use, across all years, and rounded up to the nearest multiple of five percent. In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), Proprietary Market Surveys, and the National Center for Food and Agriculture Policy (NCFAP) for the most recent six years. There are existing tolerances for residues of diuron on peppermint, hay at 2 ppm. However, the EPA has determined the preferred commodity term should be peppermint, tops. Therefore, the PCT estimates used for mint are based on the existing registration and are not projections. The Agency believes that the three conditions listed in Unit III.C.iv. have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which diuron may be applied in a particular area. 2. *Dietary exposure from drinking water* . The drinking water exposure assessment conducted in conjunction with the 2003 RED noted that surface water monitoring data resulted in diuron residues less than 1 parts per billion

(ppb)( *http://www.regulations.gov* , document 0006 - Docket ID EPA-HQ-OPP-2002-0249). For ground water, modeling results indicted that residues of diuron and degradates would be at most 0.6 ppb for long-term exposure assessment. For the current assessment, EPA used PDP monitoring data from 2003 and 2004, in which 1,072 samples of raw and treated water were analyzed for diuron residues. Residues were detected in 12 samples, ranging from 27 to 267 parts per trillion (ppt), with an average of 20.2 ppt (0.020 ppb). For chronic dietary risk assessment, the water concentration of value 0.020 ppb was used to access the contribution to drinking water. These estimates of drinking water concentrations were directly entered into the dietary exposure model. The drinking water exposure assessment conducted in conjunction with the 2003 RED noted that surface water monitoring data resulted in diuron residues less than 1 ppb. For ground water, modeling results indicated that residues of diuron and degradates would be at most 0.6 ppb for long-term exposure assessment. The analysis in the RED noted that the potential for residues in drinking water sources is more likely to occur from run-off to surface water, and the ground water sources of drinking water are likely to be less vulnerable to contamination with diuron. The RED cited numerous monitoring studies from areas known for high diuron usage. The drinking water risks in the RED were calculated from diuron residues in a Florida surface water monitoring study in which the highest residue found was 1.2 ppb, but the 90 th and 95 th percentile residues were both less than the limit of detection in the study, which ranged from 0.2 to 0.4 ppb. For the current assessment, drinking water residues were estimated from PDP monitoring data from 2003 and 2004, in which 1,072 samples of raw and treated water were analyzed for diuron residues. Residues were detected in 12 samples, ranging from 27 to 267 ppt, with an average detected residue of 20.2 ppt (0.02 ppb). This average of detected residues was considered to be more appropriate for estimating cancer risk from drinking water than a high-end estimate of surface water residues from the Florida monitoring data. However, the 2 sets of monitoring data support the conclusion that potential residues in surface water are much less than 1 ppb. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). In conjunction with the RED, the agency concluded that all registered uses were eligible for reregistration, provided labeling requirements and mitigation measures were observed. This included voluntary cancellation of uses allowing application to home lawns. Currently, all registered labels for diuron no longer allow applications to home lawns. As a result the current uses registered that could result in non-occupational, non-dietary exposures are diruon added to paints and stains and residential ponds and aquariums. Exposures of concern to diuron resulting from residential uses is expected to be negligible. The existing residential uses for diuron result in only short-term exposures, generally less than 7 days. No short-term dermal endpoints have been identified for diuron. A short-term incidental oral endpoint was identified. However, all residential uses to home lawns have been cancelled so incidental oral exposures are not expected. Inhalation endpoints have been identified for diuron. However, diuron has a low vapor pressure (2 x 10 - 7 mm Hg@30°C) and therefore, absorption by the inhalation route is likely to be low. Potential residential handler exposures from applying paints and stains containing diuron were assessed in the 2003 RED. Conservative assumptions included 2 days of painting per year for 50 years of a 70 year lifetime. However, based on information gathered through the RED process it was determined that less than 1% of paint sold contains diuron, and that such paints would likely only be used in rooms subject to high moisture (e.g., bathrooms). Therefore, lifetime exposure to home applicators of diuron-containing products is likely to negligible. Postapplication inhalation exposure resulting from the use of diuron in residential ponds and aquariums is also expected to be minimal based on the extremely high dilution rate. Therefore, an exposure assessment was not conducted for non-occupational, non-dietary exposures. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Based on available data, EPA has previously concluded that diuron, propanil and linuron, all of which contain 3,4 dichloroaniline (3,4-DCA) in their structures, do not share a common mechanism of toxicity. (Additional information regarding this conclusion can be found in the docket for the RED for diuron identified as EPA-HQ-OPP-2002-0249.) Propanil readily metabolizes to 3,4-DCA, but neither diuron nor linuron metabolize to 3,4-DCA in plant or animal metabolism studies. EPA previously recommended against aggregating residues of 3,4 DCA for the propanil and diuron risk assessments. The following considerations support the recommendation: • 3,4-DCA is a significant residue of concern for propanil, but is not a residue of concern per se for diuron; • The analytical method for quantifying residues of concern from applications of diuron converts all residues to 3,4-DCA as a technical convenience. However, 3,4-DCA is not a significant residue in diuron plant and animal metabolism or hydrolysis studies. Therefore, the agency determined that all residues hydrolyzable to 3,4-DCA would be included in the tolerance expression for diuron, because no validated enforcement method is available for quantification for the actual residues of concern for diuron. • Propanil and its metabolite 3,4-DCA were found to induce methemoglobinemia, the endpoint of concern for propanil. Diuron has not been shown to cause this effect. Diuron induces hemolytic anemia and compensatory hematopoiesis, which are mechanistically different from methemoglobinemia. • Linuron and diuron metabolism studies show that both chemicals metabolize to DCPU and DCPMU. However, for reasons that are yet unknown, these chemicals do not induce the same toxic effects in mammals. Submitted data indicate that diuron is primarily (though not exclusively) metabolized by the hydroxylation of the urea group in either the methyl or the amino position and conjugated. Linuron, on the other hand, appears to be primarily ring-hydroxylated and conjugated. The methoxy group is removed, followed by the methyl group, with ring hydroxylation. Unlike linuron, hydroxylation of the phenyl ring is not a major metabolite pathway of diuron and, both methyl groups are lost. • Methemoglobinemia is the dominant toxic effect of concern for linuron. As mentioned above, diuron does not induce methemoglobinemia. Mechanistic and reproductive studies show that linuron, and to some extent propanil, is an androgen receptor antagonist and that linuron induces testicular abnormalities in rodents. Studies with diuron showed no indications of any endocrine effects and no developmental or reproductive effects. • Although the mechanisms of action for the differing effects induced by the two ureas, diuron and linuron, are not entirely known, there is sufficient cause to believe that exposures from the two compounds should not be cumulated. • The estimated dietary cancer risk for diuron did not include residues from linuron and propanil since it was recognized that the target organs for tumor induction for diuron are different from those for linuron and propanil, and data were available which indicated that the mechanism of action may be different for diuron. For the purposes of this tolerance action, therefore, EPA has not assumed that diuron has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative/* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional uncertainty/safety factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . There is an acceptable developmental toxicity study in rabbits and an acceptable 2-generation reproduction study in rats. A developmental toxicity study in rats was classified as unacceptable due to deficiencies in analytical data on the sample analysis; however, the EPA considers the developmental toxicity study in rats adequate for the FQPA susceptibility assessment based on the observation that the developmental toxicity NOAEL was higher than the maternal NOAEL. The EPA has also concluded that a developmental neurotoxicity

(DNT)study is not required. There is no indication of increased susceptibility to young exposed to diuron in the available studies. In the developmental toxicity study in rabbits, there were no developmental effects at the highest dose tested. In the developmental toxicity study in rabbits and in the 2-generation rat reproduction study, developmental/offspring effects were observed only at maternally/parentally toxic dose levels. There are no neurotoxic signs in any of the submitted subchronic or chronic studies. 3. *Conclusion* . The chronic dietary endpoint for diuron used in risk assessment is based on a LOAEL of 1 mg/kg/day from the chronic toxicity/carcinogenicity study in rats. EPA has retained the 10X FQPA safety factor for diuron because of reliance on a LOAEL in the rat chronic toxicity study and because the data in that study or other studies did not show that a smaller factor would be safe. EPA has determined that reliable data show that it would be safe for infants and children provided the FQPA safety factor of 10X is retained and no additional safety factors are needed. That decision is based on the following findings: i. There are no uncertainties with the toxicology database other than with regard to the lack of a NOAEL in the rat chronic toxicity study. The only outstanding toxicity data requirement for diuron is a 28-day inhalation study which is required to address the concern for inhalation exposure to workers during the application of diuron. Occupational exposures are not considered under section 408 of FFDCA. Postapplication inhalation exposure resulting from the indoor use of diuron in paints is expected to be minimal because of the low vapor pressure of diuron, and because diuron-treated paint is only likely to be used in rooms where high humidity is expected (e.g... a bathroom), and would rarely be used in the entire house based on the use pattern. Additionally, based on information gathered through the RED process it was determined that less than 1% of paint sold contains diuron. As a result, non-occupational exposure to diuron via inhalation is not expected to occur with infants and children. Therefore, the 28-day inhalation study will not change the endpoints used in risk assessment to address the potential risks to infants and children. The developmental toxicity study in rats is classified as unacceptable due to deficiencies in analyses of the test material and dosing solutions. However, the EPA has not required the study be repeated since it is considered adequate for the FQPA susceptibility assessment based on the observation that the developmental toxicity NOAEL was higher than the maternal NOAEL, and because maternal and developmental toxicity were well-defined at their respective LOAELs. Finally, the rabbit is considered to be the more sensitive species than the rat for developmental toxicity, and the rabbit developmental study is acceptable. The chronic toxicity study in dogs has also been classified as unacceptable due to the purity of the test material, as well as potential problems with stability and homogeneity issues related to the test material. However, the EPA determined that a repeated chronic dog study is not required; similar effects were observed in rats and dogs, but the effects in the rat occurred at lower doses and the rat NOAEL serves as the dose for risk assessment. Therefore, the EPA concluded that a new chronic dog study would not change the endpoint chosen for risk assessment. The data base as a whole is adequate for pre- and post-natal toxicity evaluation. ii. There is no indication of quantitative or qualitative increased susceptibility of rats or rabbits to *in utero* or postnatal exposure. There is no indication of increased susceptibility to young exposed to diuron in the available studies. In the developmental toxicity study in rabbits, there were no developmental effects at the highest dose tested. In the developmental toxicity study in rabbits and in the 2-generation rat reproduction study, developmental/offspring effects were observed only at maternally/parentally toxic dose levels. iii. There are no neurotoxic signs in any of the submitted subchronic or chronic studies. A developmental neurotoxicity study

(DNT)for diuron is not required. iv. There are no residual uncertainties identified in the exposure databases. The dietary (food and drinking water) and non-dietary (residential) exposure assessments will not underestimate the potential exposures for infants and children. The dietary food exposure assessments were performed based on reliable field trial data where tolerance level residues for some commodities as well as anticipated residues

(ARs)for other commodities, based on a combination of average field trial data and USDA/PDP monitoring data. Average PCT values were assumed for chronic dietary assessment for some crops and 100 PCT treated were assumed for the remaining uses. Drinking water estimates were based on monitoring studies and USDA/PDP monitoring data. EPA expects any residential exposure from use of diuron to be negligible. The EPA is confident that these assessments will not underestimate the exposure and risks posed by diuron. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (“aPAD”) and chronic population adjusted dose (“cPAD”). The aPAD and cPAD are calculated by dividing the LOC by all applicable uncertainty/safety factors. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-, intermediate, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (“MOE”) called for by the product of all applicable uncertainty/safety factors is not exceeded. 1. *Acute risk* . As there were no toxic effects attributable to a single dose, an endpoint of concern was not identified to quantitate acute-dietary risk to the general population or to the subpopulation females 13-50 years old. No acute risk is expected from exposure to diuron. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to diruon from food and water will utilize 19% of the cPAD for the population group children 1-2 years old, the subpopulation group with greatest exposure. There are no residential uses for diuron that result in chronic residential exposure to diuron. 3. *Short-term risk and Intermediate risk* . Short-term and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). The current uses registered that could result in non-occupational, non-dietary exposures are from diuron added to paints and stains as well as applications to residential ponds and aquariums. However, EPA expects any residential exposure from use of diuron to be negligible. Therefore, no short-term and intermediate-term risk is expected from exposure to diuron as a result of non-occupation, non-dietary exposures. 4. *Aggregate cancer risk for U.S. population* . Using the exposure assumptions described in this unit for cancer for diuron, EPA has concluded that exposure to diruon from food and water will result in a cancer risk estimate of 1.4 x 10 - 6 for the general U.S. population. This risk estimate is within the range of 1 in 1 million that EPA considers negligible risk for cancer. EPA has generally concluded that computed cancer risks as high as 3 in 1 million fall within this risk range. Using the exposure assumptions described in this unit for cancer for the degradate MCPDMU, EPA has concluded that exposure to MCPDMU from fish and water will result in a cancer risk estimate of 5.9 x 10 -7 , which is not of concern. 5. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to diuron residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography) is available to enforce the tolerance expression. The principle of the determination is the hydrolysis of diuron and its metabolites by alkaline reflux to 3,4-dichloroanaline (3,4-DCA), followed by a distillation of the aniline into an acid solution. The acid distillate is made alkaline with concentrated base and subsequently extracted into an organic solvent (hexane) and analyzed by gas chromatography. With the modified method, recoveries exceeded 70% and the limit of quantitation

(LOQ)is 0.01. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are no Codex, Canadian, or Mexican tolerances or maximum residue limits for diuron in cactus; spearmint, tops; peppermint, tops; and fish - freshwater finfish, farm raised. Therefore, harmonization with international tolerances is not an issue for this action. C. Response to Comments Several comments were received from a private citizen objecting to establishment of tolerances. The Agency has received similar comments from this commenter on numerous previous occasions. Refer to **Federal Register** of June 30, 2005 (70 FR 37686; FRL-7718-3); January 7, 2005 (70 FR 1354; FRL-7691-4); and October 29, 2004 (69 FR 63096; FRL-7681-9) for the Agency's response to these objections. In addition, the commenter noted several adverse effects seen in animal toxicology studies with diruon and claims because of these effects no tolerance should be approved. EPA has found, however, that there is a reasonable certainty of no harm to humans after considering these toxicological studies and the exposure levels of humans to diruon. The EPA also received an additional comment in support of this action. V. Conclusion Upon completing review of the current diuron database, the Agency concluded that the tolerance expression proposed in the Notice of Filing should be changed to include metabolites hydrolyzable to 3,4-dichloroaniline (3,4-DCA). This determination is based on the results of the reviewed plant and animal metabolism studies. Currently, there are existing tolerances for residues of diuron on peppermint, hay at 2 ppm. The petitioner proposed tolerances be established on mint at 1.5 ppm. The EPA has determined that the preferred commodity terms are spearmint, tops and peppermint, tops and based on the residue field trial data the appropriate tolerance level for spearmint and peppermint should be 1.5 ppm. The EPA has also determined the preferred commodity terms should be cactus and fish - freshwater finfish, farm raised. Therefore, these tolerances are established for combined residues of diuron (3-(3,4-dichlorophenyl)-1,1-dimethylurea and its metabolites convertible to 3,4-dichloroaniline on cactus at 0.05 ppm, spearmint, tops at 1.5 ppm, peppermint, tops at 1.5 ppm and fish - freshwater finfish, farm raised at 2.0 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: May 31, 2007. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.106 is amended by redesignating the text in paragraph

(a)as (a)(1); by adding paragraph (a)(2); and by adding text to paragraph

(c)to read as follows: § 180.106 Diuron; tolerances for residues.

(1)* * *

(2)Tolerances are established for the combined residues of the herbicide diuron (3-(3,4-dichlorophenyl)-1,1-dimethylurea and its metabolites convertible to 3,4-dichloroaniline, in or on the following raw agricultural commodities: Commodity Parts per million Fish - freshwater finfish, farm raised 2.0 Peppermint, tops 1.5 Spearmint, tops 1.5

(c)*Tolerances with regional registrations* . Tolerances with a regional registration as defined in § 180.1(n) are established for the combined residues of the herbicide diuron (3-(3,4-dichlorophenyl)-1,1-dimethylurea and its metabolites convertible to 3,4-dichloroaniline) in or on the raw agricultural commodities: Commodity Parts per million Cactus 0.05 [FR Doc. E7-11205 Filed 6-12-07; 8:45 am] BILLING CODE 6560-50-S AGENCY FOR INTERNATIONAL DEVELOPMENT 48 CFR Parts 719 and 752 RIN 0412-AA58 Mentor-Protégé Program AGENCY: U.S. Agency for International Development (USAID). ACTION: Final Rule. SUMMARY: The United States Agency for International Development (USAID) is issuing this final rule to amend its acquisition regulations to formally encourage USAID prime contractors to assist small business, including veteran-owned small business, service-disabled veteran-owned small business, HUBZone, small socially and economically disadvantaged business, and women-owned small business, in enhancing their capabilities to perform contracts and subcontracts for USAID and other Federal agencies. The program seeks to increase the base of small business eligible to perform USAID contracts and subcontracts. The program also seeks to foster long-term business relationships between USAID prime contractors and small business entities and to increase the overall number of small business entities that receive USAID contracts, and subcontract awards. DATES: *Effective Date:* This rule will take effect July 13, 2007. FOR FURTHER INFORMATION CONTACT: Rockfeler P. Herisse, Ph.D., U.S. Agency for International Development, Attn. Mentor-Protégé Program, Office of Small and Disadvantaged Business Utilization, 1300 Pennsylvania Avenue, NW., Washington, DC 20523-7800, Telephone: 202-712-0064, and E-mail: *rherisse@usaid.gov.* SUPPLEMENTARY INFORMATION: I. Background II. Resolution of Comments III. Procedural Requirements A. Review Under Executive Order 12866 B. Review Under Executive Order 12988 C. Review Under the Regulatory Flexibility Act D. Review Under the Paperwork Reduction Act E. Review Under Executive Order 12612 F. Review Under the Unfunded Mandates Reform Act of 1995 I. Background On November 22, 2006, the U.S. Agency for International Development (USAID) published a notice of proposed rulemaking (71 FR 67518), which proposed to develop a program that encouraged USAID prime contractors to assist small business, including veteran-owned small business, service-disabled small business, HUBZone, small socially and economically disadvantaged business, and women-owned small business in enhancing their capabilities to perform contracts and subcontracts for USAID and other Federal agencies. Comments on this proposed rule were extended to and closed on February 22, 2007 (71 FR 70939). Successful Mentor-Protégé arrangements represent opportunities for creating access for small business to USAID contracts and awards let through negotiated procurements. USAID received comments on the proposed rule suggesting the Agency clarify the eligible participants in the Program and the types of incentives USAID may provide to prime contractors for providing developmental assistance to protégés. After careful consideration of the public comments received on the notice of proposed rulemaking, USAID today publishes a final rule. II. Resolution of Comments Fourteen comments were received in response to the proposed rule. The comments and USAID's responses are as follows: *Comment:* USAID's implementation of its Mentor-Protégé Program must be narrowly tailored within SBA's statutory and regulatory constraints, absent USAID-specific statutory authority. *Response:* USAID agrees that its Mentor-Protégé Program must stay within SBA regulations and USAID-specific statutory authority. USAID received two comments related to Minority Serving Institutions in the proposed rule. *Comment 1 states:* We support the inclusion of Minority Serving Institutions

(MSIs)as eligible protégés but recommend that the expanded description of MSIs in this (the Purpose) section be deleted since it is specifically covered as a definition in section 719.273-2(b) and in FAR 2.101-2. *Comment 2 states:* We support the inclusion of Minority Serving Institutions

(MSIs)as eligible mentors, but question USAID's authority to use MSIs as small business concern protégés. *Response:* USAID intended to include MSIs in the scope of this program. However, doing so would be outside its statutory authority. USAID agrees that it does not currently have the statutory authority for this provision and has deleted this requirement from the Mentor-Protégé Program regulations. References to MSIs as mentors or protégés have been deleted from the final rule. USAID received two comments related to the treatment of “affiliation” in the proposed rule. *Comment 1 states:* We appreciate the affirmation included in this (Purpose) section that a protégé firm is not considered an affiliate of a mentor solely because of the developmental assistance the protégé receives under the Program but recommend that this statement be moved to section 719.273-2(a) where it more appropriately relates to the definition of a “small business.” *Comment 2 states:* We do not believe that [USAID] has the authority to waive the SBA's affiliation requirements, as set forth in 13 CFR 121.103. *Response:* USAID does not intend to establish affiliate relationships or waive the SBA affiliation requirements, as doing so is not within the USAID statutory authority. The final rule is clarified in section 719.273-2. *Comment:* We strongly support the formulation that a mentor may have more than one protégé providing that each relationship complies with the terms and conditions of the regulations and the mentor can demonstrate that it has the capacity to provide developmental assistance appropriate to the specific protégé. However, this language is already more appropriately addressed in sections 719.273-4(b) and 719.273-5(b) and thus should be deleted from this [Purpose] section. *Response:* USAID agrees with this comment and has modified the final rule. *Comment:* The commenter cites a portion of section 719.273-1 which concludes with a statement that USAID reserves the right “to limit the total number of protégés participating” in the Program. The Agency has not disclosed why it has an interest in establishing limits on participation in the program. It is also unclear whether this statement means that the Agency would limit the number of protégés a mentor could have or whether it is intended to operate as an overall limit of the number of mentor firms in the Program. For example, [Section] 719.273-5(b) states that USAID reserves the right to limit the number of protégés participating under each mentor firm * * * By contrast, in the Paperwork Reduction Act discussion in the Background section accompanying the rule the Agency “estimates” that there would be a total of thirty firms required to complete the application form. Regardless, we believe the issue of any Agency imposed limits, if there are to be any, is more appropriately addressed elsewhere in the substantive provisions of the rule. *Response:* The commenter addresses several attributes of the Program, some of which are clarified in the final rule. USAID confirms its intent to reserve the right to limit the total number of participants in the Program, as expressed in section 719.273-4, in order to insure its effective management of the Program. The formulation in section 719.273-5(b) is clear in its intent to reserve the right to limit the number of protégés participating under each mentor under the Program, in order for USAID to effectively manage the Program, to conduct due diligence on all Mentor-Protégé Agreements, and to assure the developmental assistance proposed in the Agreements is being provided by the mentor to the protégé(s). The discussion on the Paperwork Reduction Act in the Background section is intended to provide an estimate of the number of participants from the U.S. business community to participate in the Program and was not intended to set a predetermined limit on the number of participants in the Program. USAID will monitor the number of Agreements endorsed (participants accepted into the Program) and in effect between the firms within a given period of time. These Agreements will be entered by firms in the public domain outside the controls of the USAID, but USAID imposes these measures to potentially limit participation in the Program to assure the integrity of the Mentor-Protégé Program. USAID agrees to reflect this concern in the Internal Controls section 719.273-10(a)(4) of the final rule. *Comment:* Addressing the definitions in section 719.273-2, commenter noted that the categories of firms eligible to participate in the Program are already covered in a more inclusive manner as a defined term in paragraph

(a)of this Section and recommended deleting the listing in paragraph (e). *Response:* USAID disagrees with this comment and believes that there is merit in listing the categories of small business firms in both the new introductory paragraph of the section and in the specific definition of a Protégé. *Comment:* (Referring to the last sentence of undesignated first paragraph of section 719.273-4) We recognize that the goal of the Mentor-Protégé Program is to expand the opportunities for small businesses to participate in USAID procurements. However, based on the capabilities of the prospective protégé firm and the developmental assistance it may need, it may be unreasonable to expect a prospective mentor firm to include the prospective protégé in the subcontracts at the outset of an Agreement. We believe USAID intended the scope of opportunities for prospective firms to be as broad as possible and that the Agency did not intend to restrict prospective protégés to only those firms that are already qualified as potential prime contractors or as subcontractors under a mentor's prime contract * * *. We encourage USAID to clarify this important issue of eligibility in this paragraph. *Response:* USAID does not expect nor will it require a prospective mentor firm to include the prospective protégé in the subcontracts at the onset of an Agreement. USAID has clarified this issue of eligibility in the final rule. *Comment:* The commenter, citing the Federal Acquisition Regulation, states that USAID relies on 15 U.S.C. 637(d)(4)(E) for its authority to provide appropriate incentives to encourage subcontracting opportunities for small business consistent with the efficient and economical performance of the contract * * * [A]lthough USAID could provide certain evaluation preferences to mentors and protégés with an approved Agreement, [commenter did] not see how USAID can provide the subcontracting credit that is set forth in the proposed rule, noting that the Department of Defense needed specific statutory authority for their Mentor-Protégé Program to provide for subcontracting credits. *Response:* USAID agrees that it currently does not have statutory authority to permit credit for subcontracting and has modified the final rule accordingly, to refine the language in 719.273-3(b). We are concerned about making the Program attractive to mentors and protégés through allowable incentives under its statutory authority. After reviewing incentives offered by other U.S. Government agencies and as permitted by our regulations, we revised this section, using the Environmental Protection Agency

(EPA)program as a model. Under the same Small Business Act authority cited above, EPA has provided certain “incentives” for mentors, as codified in 48 CFR 1552.219-71(j); their regulation states that costs incurred by the offeror in fulfilling their agreement with a protégé firm are not reimbursable as a direct cost under the contract, but if EPA is the responsible audit agency, these costs will be considered in determining indirect cost rates. In the final rule, USAID's “incentive” is similar to one provided by EPA. *Comment:* When referencing a term such as “small business,” HUBZone, etc., USAID should be referring the reader to SBA's regulations rather than the FAR. The term as used in USAID's regulation should also be consistent with the term as defined in 13 CFR. *Response:* USAID has modified the final rule accordingly. We received two comments on section 719.273-4(b)(1)(ii). The first commenter noted that the section provides that the applicable NAICS code for determining small business status is the services or supplies to be provided by the Protégé to the mentor, but that “the January 2006 application form prescribes that small business eligibility is based on the primary NAICS code for the small business concern. These two differing standards must be reconciled. We support the formulation used in the rule.” The second commenter asked that USAID clarify that the protégé must be small for the NAICS codes assigned to the subcontract by the prime contractor (13 CFR 121.405). *Response:* In the final rule, USAID indicates that the protégé must be small for the NAICS codes designated by the mentor, based on the supplies or services the protégé may provide to the mentor under a subcontract, in cases where there is a subcontract. USAID is not limiting protégé eligibility to only those small businesses that have a subcontract with the mentor, so we do not want the final rule to appear to make such a limitation. The comment about the application form is outside the scope of the proposed and this final rule. *Comment:* The Summary of the proposed rule is not in agreement with the language in the proposed regulation and may be misleading. *Response:* USAID agrees and has modified the rule to harmonize the summary and the language of the regulation. *Comment:* The clause reference 752.219-270 should be 752.219-70. *Response:* USAID agrees and deleted the number “2” from clause reference 752.219-70. *Comment:* In section 719.273-4 Eligibility of Mentor and Protégé Firms (b)(2), please clarify that the applicable certifications must be in accordance with SBA's Program regulations contained in 13 CFR 124 and 126. *Response:* USAID agrees and has modified the final rule accordingly. III. Procedural Requirements A. Review Under Executive Order 12866 Today's regulatory action has been determined to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Accordingly, this final rule was subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB). B. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements:

(1)Eliminate drafting errors and ambiguity;

(2)Write regulations to minimize litigation; and

(3)Provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:

(1)Clearly specifies the subject law's preemptive effect, if any;

(2)Clearly specifies any effect on existing Federal law or regulation;

(3)Provides a clear legal standard for affected conduct while promoting simplification and burden reduction;

(4)Specifies the retroactive effect, if any;

(5)Adequately defines key terms; and

(6)Addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. USAID has completed the required review and determined that these proposed regulations meet the relevant standards of Executive Order 12988. C. Review Under the Regulatory Flexibility Act This final rule has been reviewed under the Regulatory Flexibility Act of 1980, Public Law 96-354, that requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and that is likely to have significant economic impact on a substantial number of small entities. Small entities include small business, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of today's rule on small entities, small entity is defined as:

(1)A small business that meets the definition of a small business found in the Small Business Act and codified in 13 CFR 121.201;

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

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” (5 U.S.C. 603 and 604) Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. In fact, the purpose of the USAID Mentor-Protégé Program is to increase small business accessibility to USAID contracting. This rule streamlines USAID internal operating procedures and will therefore not have a significant economic impact on small entities. D. Review Under the Paperwork Reduction Act This rule requires USAID Mentor-Protégé Program participants to submit an application (see section 719.273-7) and annual progress reports to the USAID Mentor-Protégé Program Manager at USAID Headquarters (see section 719.273-10). The information in the reports is necessary to determine the value of the developmental assistance and if the schedules and developmental assistance levels contained in Mentor-Protégé Agreements are being met. Performance under the Agreements is the basis for providing proper recognition to Mentor firms. USAID submitted the proposed collection of information to the Office of Management and Budget for review and approval under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The Office of Management and Budget has not yet approved the collection of information in this rule. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number (5 CFR 1320.5(b)). E. Review Under Executive Order 12612 Executive Order 12612, (52 FR 41685, October 30, 1987), requires that regulations, rules, legislation, and any other policy actions be reviewed for any substantial direct effects on States, on the relationship between the Federal Government and the States, or in the distribution of power and responsibilities among the various levels of Government. If there are sufficient substantial direct effects, then the Executive Order requires the preparation of a federalism assessment to be used in all decisions involved in promulgating and implementing a policy action. States would not be directly subject to this rule, since they are not among the class of entities described as Mentors or Protégés. USAID has determined that this rule would not have a substantial direct effect on the institutional interests or traditional functions of the States. F. Review Under the Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a federal mandate with costs to State, local or tribal governments, or to the private sector of $100 million or more. This rulemaking would only affect private sector entities, and the impact is less than $100 million. List of Subjects in 48 CFR Part 719 Government procurement. For the reasons set out in the preamble, USAID amends 48 CFR Chapter 7 as set forth below: PART 719—SMALL BUSINESS PROGRAMS 1. The authority citation for part 719 is revised to read as follows: Authority: 42 U.S.C. 7254, 40 U.S.C. 486(c), 42 U.S.C. 2201. 2. A new subpart 719.273 is added as follows: Subpart 719.273—The U.S. Agency for International Development (USAID) Mentor-Protégé Program Sec. 719.273 The U.S. Agency for International Development Mentor-Protégé Program. 719.273-1 Purpose. 719.273-2 Definitions. 719.273-3 Incentives for Prime Contractor Participation. 719.273-4 Eligibility of Mentor and Protégé Firms. 719.273-5 Selection of Protégé Firms. 719.273-6 Application Process. 719.273-7 OSDBU Review of Application. 719.273-8 Developmental Assistance. 719.273-9 Obligations Under the Mentor-Protégé Program. 719.273-10 Internal Controls. 719.273-11 Solicitation Provision and Contract Clause. 719.273 The United States Agency for International Development (USAID) Mentor-Protégé Program. 719.273-1 Purpose. The USAID Mentor-Protégé Program is designed to assist small business, including veteran-owned small business, service-disabled veteran-owned small business, HUBZone, small socially and economically disadvantaged business, and women-owned small business in enhancing their capabilities to perform contracts and sub-contracts for USAID and other Federal agencies. The Mentor-Protégé Program is also designed to improve the performance of USAID contractors and subcontractors by providing developmental assistance to Protégé entities, fostering the establishment of long-term business relationships between small business and prime contractors, and increasing the overall number of small business that receive USAID contract and subcontract awards. A firm's status as a Protégé under a USAID contract shall not have an effect on the firm's eligibility to seek other prime contracts or subcontracts. 719.273-2 Definitions. Throughout, the term “small business” includes all categories of small firms as defined by the Small Business Administration

(SBA)on whose behalf the Office of Small and Disadvantaged Business Utilization (OSDBU) is chartered to advocate, including small business, small disadvantaged business, women-owned small business, veteran-owned and service-disabled veteran-owned small business and small business located in HUBZones, as those terms are defined in 13 CFR part 124. The determination of affiliation is a function of the SBA.

(a)A “Mentor” is a prime contractor that elects to promote and develop small business subcontractors by providing developmental assistance designed to enhance the business success of the Protégé.

(b)“Program” refers to the USAID Mentor-Protégé Program as described in this Chapter.

(c)“Protégé” means a small business, small disadvantaged business, women-owned small business, HUBZone small business, veteran-owned small business or service-disabled veteran owned small business that is the recipient of developmental assistance pursuant to a Mentor-Protégé Agreement. 719.273-3 Incentives for Prime Contractor Participation.

(a)Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), USAID is authorized to provide appropriate incentives to encourage subcontracting opportunities for small business consistent with the efficient and economical performance of the contract. This authority is limited to negotiated procurements. FAR 19.202-1 provides additional guidance.

(b)Costs incurred by a Mentor to provide developmental assistance, as described in 719.273-8 to fulfill the terms of their agreement(s) with a Protégé firm(s), are not reimbursable as a direct cost under a USAID contract. If USAID is the mentor's responsible audit agency under FAR 42.703-1, USAID will consider these costs in determining indirect cost rates. If USAID is not the responsible audit agency, mentors are encouraged to enter into an advance agreement with their responsible audit agency on the treatment of such costs when determining indirect cost rates.

(c)In addition to subparagraph

(b)above, contracting officers may give Mentors evaluation credit under FAR 15.101-1 considerations for subcontracts awarded pursuant to their Mentor-Protégé Agreements and their subcontracting plans. Therefore:

(1)Contracting officers may evaluate subcontracting plans containing Mentor-Protégé arrangements more favorably than subcontracting plans without Mentor-Protégé Agreements.

(2)Contracting officers may assess the prime contractor's compliance with the subcontracting plans submitted in previous contracts as a factor in evaluating past performance under FAR 15.305(a)(2)(v) and determining contractor responsibility 19.705-5(a)(1).

(d)OSDBU Mentoring Award. A non-monetary award will be presented annually to the Mentoring firm providing the most effective developmental support of a Protégé. The Mentor-Protégé Program Manager will recommend an award winner to the Director of the Office of Small and Disadvantaged Business Utilization (OSDBU).

(e)OSDBU Mentor-Protégé Annual Conference. At the conclusion of each year in the Mentor-Protégé Program, Mentor firms will be invited to brief contracting officers, program leaders, office directors and other guests on Program progress. 719.273-4 Eligibility of Mentor and Protégé Firms. Eligible business entities approved as Mentors may enter into agreements (hereafter referred to as “Mentor-Protégé Agreement” or “Agreement” and explained in section 719.273-6) with eligible Protégés. Mentors provide appropriate developmental assistance to enhance the capabilities of Protégés to perform as contractors and/or subcontractors. Eligible small business entities capable of providing developmental assistance may be approved as Mentors. Protégés may participate in the Program in pursuit of a prime contract or as subcontractors under the Mentor's prime contract with the USAID, but are not required to be a subcontractor to a USAID prime contractor or be a USAID prime contractor. Notwithstanding eligibility requirements in this section, USAID reserves the right to limit the number of participants in the Program in order to insure its effective management of the Mentor-Protégé Program.

(a)Eligibility. A Mentor:

(1)May be either a large or small business entity;

(2)Must be eligible for award of Government contracts;

(3)Must be able to provide developmental assistance that will enhance the ability of Protégés to perform as prime contractors or subcontractors; and

(4)Will be encouraged to enter into arrangements with entities with which it has established business relationships.

(b)Eligibility. A Protégé:

(1)Must be a small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone, small socially and economically disadvantaged business, and women-owned small business);

(2)Must meet the size standard corresponding to the NAICS code that the Mentor prime contractor believes best describes the product or service being acquired by the subcontract; and

(3)Eligible for award of government contracts.

(c)Protégés may have multiple Mentors. Protégés participating in Mentor-Protégé programs in addition to USAID's Program should maintain a system for preparing separate reports of Mentoring activity so that results of the USAID Program can be reported separately from any other agency program.

(d)A Protégé firm shall self-certify to a Mentor firm that it meets the requirements set forth in paragraph

(b)of this section and possess related certifications granted by the Small Business Administration (e.g., HUBZone, 8(a), etc.). Mentors may rely in good faith on written representations by potential Protégés that they meet the specified eligibility requirements. HUBZone and small disadvantaged business status eligibility and documentation requirements are determined according to 13 CFR part 124. 719.273-5 Selection of Protégé Firms.

(a)Mentor firms will be solely responsible for selecting Protégé firms. Mentors are encouraged to select from a broad base of small business including small disadvantaged business, women-owned small business, veteran-owned small business, service-disabled veteran-owned small business, and HUBZone firms whose core competencies support USAID's mission.

(b)Mentors may have multiple Protégés. However, to preserve the integrity of the Program and assure the quality of developmental assistance provided to Protégés, USAID reserves the right to limit the total number of Protégés participating under each Mentor firm for the Mentor-Protégé Program.

(c)The selection of Protégé firms by Mentor firms may not be protested, except that any protest regarding the size or eligibility status of an entity selected by a Mentor shall be handled in accordance with the Federal Acquisition Regulation

(FAR)and the Small Business Administration regulations. 719.273-6 Application Process. Entities interested in becoming a Mentor firm must apply in writing to the USAID Office of Small and Disadvantaged Business Utilization (OSDBU) by submitting form AID 321-1 (OMB Control number 0412-0574 approved on 5/22/2007). The application shall contain the Mentor-Protégé Agreement and shall be evaluated for approval. Evaluations will consider the nature and extent of technical and managerial support as well as any proposed financial assistance in the form of equity investment, loans, joint-venture, and traditional subcontracting support. The Mentor-Protégé Agreement must contain:

(a)Names, addresses, phone numbers, and e-mail addresses (if available) of Mentor and Protégé firm(s) and a point of contact for both Mentor and Protégé;

(b)A description of the developmental assistance that will be provided by the Mentor to the Protégé, including a description of the work or product contracted for (if any), a schedule for providing assistance, and criteria for evaluation of the Protégé's developmental success;

(c)A listing of the number and types of subcontracts to be awarded to the Protégé;

(d)Duration of the Agreement, including rights and responsibilities of both parties (Mentor and Protégé);

(e)Termination procedures, including procedures for the parties' voluntary withdrawal from the Program. The Agreement shall require the Mentor or the Protégé to notify the other firm in writing at least 30 days in advance of its intent to voluntarily terminate the Agreement;

(f)Procedures requiring the parties to notify OSDBU immediately upon receipt of termination notice from the other party;

(g)A plan for accomplishing the work or product contracted for should the Agreement be terminated; and

(h)Other terms and conditions, as appropriate. 719.273-7 OSDBU Review of Application.

(a)OSDBU will review the information to establish the Mentor and Protégé eligibility and to ensure that the information that is in section 719.273-6 is included. If the application relates to a specific contract, then OSDBU will consult with the responsible contracting officer on the adequacy of the proposed Agreement, as appropriate. OSDBU will complete its review no later than 30 calendar days after receipt of the application or after consultation with the contracting officer, whichever is later. Application for and enrollment into the Program are free and open to the public.

(b)After OSDBU completes its review and provides written approval, the Mentor may execute the Agreement and implement the developmental assistance as provided under the Agreement. OSDBU will provide a copy of the Mentor-Protégé Agreement to the USAID contracting officer for any USAID contracts affected by the Agreement.

(c)The Agreement defines the relationship between the Mentor and Protégé firms only. The Agreement itself does not create any privity of contract or contractual relationship between the Mentor and USAID nor the Protégé and USAID.

(d)If the application is disapproved, the Mentor may provide additional information for reconsideration. OSDBU will complete review of any supplemental material no later than 30 days after its receipt. Upon finding deficiencies that USAID considers correctable, OSDBU will notify the Mentor and Protégé and request correction of deficiencies to be provided within 15 days. 719.273-8 Developmental Assistance. The forms of developmental assistance a Mentor can provide to a Protégé include and are not limited to the following:

(a)Guidance relating to—

(1)Financial management;

(2)Organizational management;

(3)Overall business management/planning;

(4)Business development; and

(5)Technical assistance.

(b)Loans;

(c)Rent-free use of facilities and/or equipment;

(d)Property;

(e)Temporary assignment of personnel to a Protégé for training; and

(f)Any other types of permissible, mutually beneficial assistance. 719.273-9 Obligations Under the Mentor-Protégé Program.

(a)A Mentor or Protégé may voluntarily withdraw from the Program. However, in no event shall such withdrawal impact the contractual requirements under any prime contract.

(b)Mentor and Protégé entities shall submit to the USAID Office of Small and Disadvantaged Business Utilization (OSDBU) annual reports on progress under the Mentor-Protégé Agreement. USAID will evaluate annual reports by considering the following:

(1)Specific actions taken by the Mentor during the evaluation period to increase the participation of their Protégé(s) as suppliers to the Federal Government and to commercial entities;

(2)Specific actions taken by the Mentor during the evaluation period to develop technical and administrative expertise of a Protégé as defined in the Agreement;

(3)The extent to which the Protégé has met the developmental objectives in the Agreement;

(4)The extent to which the Mentor's participation in the Mentor-Protégé Program impacted the Protégé'(s) ability to receive contract(s) and subcontract(s) from private firms and Federal agencies other than USAID; and, if deemed necessary;

(5)Input from the Protégé on the nature of the developmental assistance provided by the Mentor.

(c)OSDBU will submit annual reports to the relevant contracting officer regarding participating prime contractor(s)' performance in the Program.

(d)Mentor and Protégé firms shall submit an evaluation to OSDBU at the conclusion of the mutually agreed upon Program period, the conclusion of the contract, or the voluntary withdrawal by either party from the Program, whichever comes first. 719.273-10 Internal Controls.

(a)OSDBU will oversee the Program and will work in concert with the Mentor-Protégé Program Manager and relevant contracting officers to achieve Program objectives. OSDBU will establish internal controls as checks and balances applicable to the Program. These controls will include:

(1)Reviewing and evaluating Mentor applications for validity of the provided information;

(2)Reviewing annual progress reports submitted by Mentors and Protégés on Protégé development to measure Protégé progress against the plan submitted in the approved Agreement;

(3)Reviewing and evaluating financial reports and invoices submitted by the Mentor to verify that USAID is not charged by the Mentor for providing developmental assistance to the Protégé; and

(4)Limiting the number of participants in the Mentor-Protégé Program within a reporting period, in order to insure the effective management of the Program.

(b)USAID may rescind approval of an existing Mentor-Protégé Agreement if it determines that such action is in USAID's best interest. The rescission shall be in writing and sent to the Mentor and Protégé after approval by the Director of OSDBU. Rescission of an Agreement does not change the terms of any subcontract between the Mentor and the Protégé. 719.273-11 Solicitation Provision and Contract Clause.

(a)The Contracting Officer shall insert the provision at AIDAR 752.219-70 in all unrestricted solicitations exceeding $550,000 ($1,000,000 for construction) that offer subcontracting opportunities.

(b)The Contracting Officer shall insert the clause at AIDAR 752.219-71 in all contracts where the prime contractor has signed a Mentor-Protégé Agreement with USAID. PART 752—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. Add section 752.219-70 to read as follows: 752.219-70 USAID Mentor-Protégé Program. As prescribed in 719.273-11(a), insert the following provision: USAID Mentor-Protégé Program (July 13, 2007)

(a)Large and small business are encouraged to participate in the USAID Mentor-Protégé Program (the “Program”). Mentor firms provide eligible small business Protégés with developmental assistance to enhance their business capabilities and ability to obtain Federal contracts.

(b)Mentor firms are large prime contractors or eligible small business capable of providing developmental assistance. Protégé firms are small business as defined in 13 CFR parts 121, 124, and 126.

(c)Developmental assistance is technical, managerial, financial, and other mutually beneficial assistance that aids Protégés. The costs for developmental assistance are not chargeable to the contract.

(d)Firms interested in participating in the Program are encouraged to contact the USAID Mentor-Protégé Program Manager (202-712-1500) for more information. (End of provision) 4. Add section 752.219-271 to read as follows: 752.219-71 Mentor Requirements and Evaluation. As prescribed in AIDAR 719.273-11(b), insert the following clause: Mentor Requirements and Evaluation (July 13, 2007)

(a)Mentor and Protégé firms shall submit an evaluation of the overall experience in the Program to OSDBU at the conclusion of the mutually agreed upon Program period, the conclusion of the contract, or the voluntary withdrawal by either party from the Program, whichever occurs first. At the conclusion of each year in the Mentor-Protégé Program, the Mentor and Protégé will formally brief the USAID Mentor-Protégé Program Manager regarding Program accomplishments under their Mentor-Protégé Agreement.

(b)Mentor or Protégé shall notify OSDBU in writing, at least 30 calendar days in advance of the effective date of the firm's withdrawal from the Program. (End of clause) Dated: May 31, 2007. Robert K. Egge, Acting Director, Office of Small and Disadvantaged Business Utilization (OSDBU). [FR Doc. E7-11093 Filed 6-11-07; 8:45 am] BILLING CODE 6116-01-P OFFICE OF MANAGEMENT AND BUDGET Office of Federal Procurement Policy 48 CFR Part 9903 Cost Accounting Standards Board (CAS); Applicability of Cost Accounting Standards Coverage AGENCY: Cost Accounting Standards Board, Office of Federal Procurement Policy, OMB. ACTION: Final rule. SUMMARY: The Office of Federal Procurement Policy, Cost Accounting Standards

(CAS)Board, has adopted, without change from the interim rule, a final rule revising the criteria applicable to United Kingdom

(UK)contractors for filing a Disclosure Statement, Form No. CASB DS-1. This rulemaking is authorized pursuant to Section 26 of the Office of Federal Procurement Policy Act. EFFECTIVE DATE: June 13, 2007. FOR FURTHER INFORMATION CONTACT: Laura Auletta, Manager, Cost Accounting Standards Board, 725 17th Street, NW., Room 9013, Washington, DC 20503 (telephone: 202-395-3256). SUPPLEMENTARY INFORMATION: A. Background On May 23, 2005, the Cost Accounting Standards Board published an interim rule with request for comment (70 FR 29457) for the purpose of revising the criteria applicable to United Kingdom

(UK)contractors for filing a Disclosure Statement, Form No. CASB DS-1. The interim rule was adopted in order to comply with a specific request by the UK Ministry of Defence

(MOD)to simplify the compliance process with CAS Board disclosure requirements for UK contractors. Unlike certain other foreign contractors, UK contractors have been required to file a CASB DS-1 in accordance with CAS regulations. The MOD initially approached the Board with a request that UK contractors be permitted to use the corresponding UK form “Questionnaire on Method of Allocation of Costs” (QMAC), in lieu of the CASB DS-1. After a review of the content of the QMAC, the UK and U.S. representatives agreed that it did not have the same scope as the CASB DS-1. Therefore, it was agreed that to cover the gap in the coverage a “Supplemental QMAC” was needed. Based upon the Board's approval of a Supplemental QMAC that is acceptable to the MOD, the MOD requested that the CAS Board allow UK contractors to submit their basic QMAC, together with the Supplemental QMAC, in lieu of the DS-1. At its meeting on February 23, 2005, the Board agreed to change the CAS requirements so that UK contractors with CAS-covered contracts may file the UK QMAC together with its Supplement in lieu of the CASB DS-1 required of U.S. contractors. In conjunction with this change, the Board also agreed to eliminate the specific paragraph addressing UK contractors at 9903.201-1(b)(12). As a result, UK contractors are subject to the requirements of 9903.201-1(b)(4), *i.e.* , contracts and subcontracts with UK contractors are exempt from CAS “insofar as the requirements of CAS other than 9904.401 and 9904.402 are concerned.” The May, 2005 interim rule reflected these Board approved revisions. B. Public Comments The Board received one set of public comments in response to the Interim Rule. 1. CAS Coverage for UK Contractors *Comment:* The commenter requested confirmation that the rule requires that UK contractors comply only with CAS 401 and 402. *Response:* The language in the final rule requires that all UK contractors performing U.S. Government contracts and not otherwise exempt under 48 CFR 9903.201-1 will be required to comply only with CAS 401 and 402 in accordance with 48 CFR 9903.201-1(b)(4). 2. Extent of Disclosure Requirement *Comment:* The commenter expressed concern that UK contractors are subject to more extensive disclosure requirements than other countries listed in 48 CFR 9903.201-4(e) by virtue of the QMAC Supplement. *Response:* The Board believes that the disclosure requirements for UK contractors provide the information necessary for the UK MOD to determine whether such contractors are complying with the provisions of CAS 401 and 402. The MOD initially requested that its contractors be permitted to file only the QMAC. However, as described in the Background section above, the Board determined that the QMAC, by itself, did not provide sufficient information about the accounting practices of UK contractors. Therefore, working jointly with the MOD, the QMAC supplement was developed to minimize duplicate disclosures while providing the additional information needed to cover the gap between the QMAC and CASB DS-1. C. Paperwork Reduction Act The Paperwork Reduction Act, Public Law 96-511, does not apply to this rulemaking, because this rule imposes no paperwork burden on offerors, affected contractors and subcontractors, or members of the public which requires the approval of OMB under 44 U.S.C. 3501, *et seq.* D. Executive Order 12866 and the Regulatory Flexibility Act The Board certifies that this rule will not have a significant effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5. U.S.C. 601, *et seq.* , because small businesses are exempt from the application of the Cost Accounting Standards. List of Subjects in 48 CFR Part 9903 Accounting, Government procurement. Paul A. Denett, Administrator, Office of Federal Procurement Policy. For the reasons set forth in this preamble, Chapter 99 of title 48 of the Code of Federal Regulations is amended as set forth below. Please note that, in publishing the interim rule, the Code of Federal Regulations inadvertently removed and reserved paragraph

(d)of the first *clause* under Section 9903.201-4 entitled “Cost Accounting Standards (June 2000)” instead of paragraph

(d)of the *section.* This final rule corrects that error and, for clarity, restates the section in its entirety. Therefore, the interim final rule published at 70 FR 29457, May 23, 2005, is adopted as final with the following changes. PART 9903—CONTRACT COVERAGE 1. The authority citation for part 9903 continues to read as follows: Authority: Pub. L. 100-679, 102 Stat. 4056, 41 U.S.C. 422. Subpart 9903.2—CAS Program Requirements 2. Section 9903.201-4 is revised to read as follows: 9903.201-4 Contract clauses.

(a)*Cost Accounting Standards.*

(1)The contracting officer shall insert the clause set forth below, Cost Accounting Standards, in negotiated contracts, unless the contract is exempted (see 9903.201-1), the contract is subject to modified coverage (see 9903.201-2), or the clause prescribed in paragraph

(e)of this section is used.

(2)The clause below requires the contractor to comply with all CAS specified in part 9904, to disclose actual cost accounting practices (applicable to CAS-covered contracts only), and to follow disclosed and established cost accounting practices consistently. Cost Accounting Standards (June 2000)

(a)Unless the contract is exempt under 9903.201-1 and 9903.201-2, the provisions of 9903 are incorporated herein by reference and the Contractor in connection with this contract, shall—

(1)(CAS-covered Contracts Only) By submission of a Disclosure Statement, disclosed in writing the Contractor's cost accounting practices as required by 9903.202-1 through 9903.202-5 including methods of distinguishing direct costs from indirect costs and the basis used for allocating indirect costs. The practices disclosed for this contract shall be the same as the practices currently disclosed and applied on all other contracts and subcontracts being performed by the Contractor and which contain a Cost Accounting Standards

(CAS)clause. If the Contractor has notified the Contracting Officer that the Disclosure Statement contains trade secrets, and commercial or financial information which is privileged and confidential, the Disclosure Statement shall be protected and shall not be released outside of the Government.

(2)Follow consistently the Contractor's cost accounting practices in accumulating and reporting contract performance cost data concerning this contract. If any change in cost accounting practices is made for the purposes of any contract or subcontract subject to CAS requirements, the change must be applied prospectively to this contract and the Disclosure Statement must be amended accordingly. If the contract price or cost allowance of this contract is affected by such changes, adjustment shall be made in accordance with subparagraph (a)(4) or (a)(5) of this clause, as appropriate.

(3)Comply with all CAS, including any modifications and interpretations indicated thereto contained in part 9904, in effect on the date of award of this contract or, if the Contractor has submitted cost or pricing data, on the date of final agreement on price as shown on the Contractor's signed certificate of current cost or pricing data. The Contractor shall also comply with any CAS (or modifications to CAS) which hereafter become applicable to a contract or subcontract of the Contractor. Such compliance shall be required prospectively from the date of applicability of such contract or subcontract. (4)(i) Agree to an equitable adjustment as provided in the Changes clause of this contract if the contract cost is affected by a change which, pursuant to subparagraph (a)(3) of this clause, the Contractor is required to make to the Contractor's established cost accounting practices.

(ii)Negotiate with the Contracting Officer to determine the terms and conditions under which a change may be made to a cost accounting practice, other than a change made under other provisions of subparagraph (a)(4) of this clause; provided that no agreement may be made under this provision that will increase costs paid by the United States.

(iii)When the parties agree to a change to a cost accounting practice, other than a change under subdivision (a)(4)(i) of this clause, negotiate an equitable adjustment as provided in the Changes clause of this contract.

(5)Agree to an adjustment of the contract price or cost allowance, as appropriate, if the Contractor or a subcontractor fails to comply with an applicable Cost Accounting Standard, or to follow any cost accounting practice consistently and such failure results in any increased costs paid by the United States. Such adjustment shall provide for recovery of the increased costs to the United States, together with interest thereon computed at the annual rate established under section 6621(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 6621(a)(2)) for such period, from the time the payment by the United States was made to the time the adjustment is effected. In no case shall the Government recover costs greater than the increased cost to the Government, in the aggregate, on the relevant contracts subject to the price adjustment, unless the Contractor made a change in its cost accounting practices of which it was aware or should have been aware at the time of price negotiations and which it failed to disclose to the Government.

(b)If the parties fail to agree whether the Contractor or a subcontractor has complied with an applicable CAS in part 9904 or a CAS rule or regulation in part 9903 and as to any cost adjustment demanded by the United States, such failure to agree will constitute a dispute under the Contract Disputes Act (41 U.S.C. 601).

(c)The Contractor shall permit any authorized representatives of the Government to examine and make copies of any documents, papers, or records relating to compliance with the requirements of this clause.

(d)The contractor shall include in all negotiated subcontracts which the Contractor enters into, the substance of this clause, except paragraph (b), and shall require such inclusion in all other subcontracts, of any tier, including the obligation to comply with all CAS in effect on the subcontractor's award date or if the subcontractor has submitted cost or pricing data, on the date of final agreement on price as shown on the subcontractor's signed Certificate of Current Cost or Pricing Data. If the subcontract is awarded to a business unit which pursuant to 9903.201-2 is subject to other types of CAS coverage, the substance of the applicable clause set forth in 9903.201-4 shall be inserted. This requirement shall apply only to negotiated subcontracts in excess of $500,000, except that the requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to include a CAS clause as specified in 9903.201-1. (End of clause)

(b)[Reserved].

(c)*Disclosure and Consistency of Cost Accounting Practices.*

(1)The contracting officer shall insert the clause set forth below, Disclosure and Consistency of Cost Accounting Practices, in negotiated contracts when the contract amount is over $500,000 but less than $50 million, and the offeror certifies it is eligible for and elects to use modified CAS coverage ( *see* 9903.201-2, unless the clause prescribed in paragraph

(d)of this subsection is used).

(2)The clause below requires the contractor to comply with CAS 9904.401, 9904.402, 9904.405, and 9904.406, to disclose (if it meets certain requirements) actual cost accounting practices, and to follow consistently disclosed and established cost accounting practices. Disclosure and Consistency of Cost Accounting Practices (June 2000)

(a)The Contractor, in connection with this contract, shall—

(1)Comply with the requirements of 9904.401, Consistency in Estimating, Accumulating, and Reporting Costs; 9904.402, Consistency in Allocating Costs Incurred for the Same Purpose; 9904.405, Accounting for Unallowable Costs; and 9904.406, Cost Accounting Standard—Cost Accounting Period, in effect on the date of award of this contract, as indicated in part 9904.

(2)(CAS-covered Contracts Only) If it is a business unit of a company required to submit a Disclosure Statement, disclose in writing its cost accounting practices as required by 9903.202-1 through 9903.202-5. If the Contractor has notified the Contracting Officer that the Disclosure Statement contains trade secrets and commercial or financial information which is privileged and confidential, the Disclosure Statement shall be protected and shall not be released outside of the Government. (3)(i) Follow consistently the Contractor's cost accounting practices. A change to such practices may be proposed, however, by either the Government or the Contractor, and the Contractor agrees to negotiate with the Contracting Officer the terms and conditions under which a change may be made. After the terms and conditions under which the change is to be made have been agreed to, the change must be applied prospectively to this contract, and the Disclosure Statement, if affected, must be amended accordingly.

(ii)The Contractor shall, when the parties agree to a change to a cost accounting practice and the Contracting Officer has made the finding required in 9903.201-6(c) that the change is desirable and not detrimental to the interests of the Government, negotiate an equitable adjustment as provided in the Changes clause of this contract. In the absence of the required finding, no agreement may be made under this contract clause that will increase costs paid by the United States.

(4)Agree to an adjustment of the contract price or cost allowance, as appropriate, if the Contractor or a subcontractor fails to comply with the applicable CAS or to follow any cost accounting practice, and such failure results in any increased costs paid by the United States. Such adjustment shall provide for recovery of the increased costs to the United States, together with interest thereon computed at the annual rate established under section 6621(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 6621(a)(2)) for such period, from the time the payment by the United States was made to the time the adjustment is effected.

(b)If the parties fail to agree whether the Contractor has complied with an applicable CAS rule, or regulation as specified in parts 9903 and 9904 and as to any cost adjustment demanded by the United States, such failure to agree will constitute a dispute under the Contract Disputes Act (41 U.S.C. 601).

(c)The Contractor shall permit any authorized representatives of the Government to examine and make copies of any documents, papers, and records relating to compliance with the requirements of this clause.

(d)The Contractor shall include in all negotiated subcontracts, which the Contractor enters into, the substance of this clause, except paragraph (b), and shall require such inclusion in all other subcontracts of any tier, except that—

(1)If the subcontract is awarded to a business unit which pursuant to 9903.201-2 is subject to other types of CAS coverage, the substance of the applicable clause set forth in 9903.201-4 shall be inserted.

(2)This requirement shall apply only to negotiated subcontracts in excess of $500,000.

(3)The requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to include a CAS clause as specified in 9903.201-1. (End of clause)

(d)[Reserved].

(e)*Cost Accounting Standards—Educational Institutions.*

(1)The contracting officer shall insert the clause set forth below, Cost Accounting Standards—Educational Institution, in negotiated contracts awarded to educational institutions, unless the contract is exempted (see 9903.201-1), the contract is to be performed by an FFRDC (see 9903.201-2(c)(5)), or the provision at 9903.201-2(c)(6) applies.

(2)The clause below requires the educational institution to comply with all CAS specified in part 9905, to disclose actual cost accounting practices as required by 9903.202-1(f), and to follow disclosed and established cost accounting practices consistently. Cost Accounting Standards—Educational Institutions (June 2000)

(a)Unless the contract is exempt under 9903.201-1 and 9903.201-2, the provisions of part 9903 are incorporated herein by reference and the Contractor in connection with this contract, shall—

(1)(CAS-covered Contracts Only) If a business unit of an educational institution required to submit a Disclosure Statement, disclose in writing the Contractor's cost accounting practices as required by 9903.202-1 through 9903.202-5 including methods of distinguishing direct costs from indirect costs and the basis used for accumulating and allocating indirect costs. The practices disclosed for this contract shall be the same as the practices currently disclosed and applied on all other contracts and subcontracts being performed by the Contractor and which contain a Cost Accounting Standards

(2)Follow consistently the Contractor's cost accounting practices in accumulating and reporting contract performance cost data concerning this contract. If any change in cost accounting practices is made for the purposes of any contract or subcontract subject to CAS requirements, the change must be applied prospectively to this contract and the Disclosure Statement, if required, must be amended accordingly. If an accounting principle change mandated under Office of Management and Budget

(OMB)Circular A-21, Cost Principles for Educational Institutions, requires that a change in the Contractor's cost accounting practices be made after the date of this contract award, the change must be applied prospectively to this contract and the Disclosure Statement, if required, must be amended accordingly. If the contract price or cost allowance of this contract is affected by such changes, adjustment shall be made in accordance with subparagraph (a)(4) or (a)(5) of this clause, as appropriate.

(3)Comply with all CAS, including any modifications and interpretations indicated thereto contained in 48 CFR part 9905, in effect on the date of award of this contract or, if the Contractor has submitted cost or pricing data, on the date of final agreement on price as shown on the Contractor's signed certificate of current cost or pricing data. The Contractor shall also comply with any CAS (or modifications to CAS) which hereafter become applicable to a contract or subcontract of the Contractor. Such compliance shall be required prospectively from the date of applicability to such contract or subcontract. (4)(i) Agree to an equitable adjustment as provided in the Changes clause of this contract if the contract cost is affected by a change which, pursuant to subparagraph (a)(3) of this clause, the Contractor is required to make to the Contractor's established cost accounting practices.

(iii)When the parties agree to a change to a cost accounting practice, other than a change under subdivision (a)(4)(i) or (a)(4)(iv) of this clause, negotiate an equitable adjustment as provided in the Changes clause of this contract.

(iv)Agree to an equitable adjustment as provided in the Changes clause of this contract, if the contract cost is materially affected by an OMB Circular A-21 accounting principle amendment which, on becoming effective after the date of contract award, requires the Contractor to make a change to the Contractor's established cost accounting practices.

(b)If the parties fail to agree whether the Contractor or a subcontractor has complied with an applicable CAS or a CAS rule or regulation in 9903 and as to any cost adjustment demanded by the United States, such failure to agree will constitute a dispute under the Contract Disputes Act (41 U.S.C. 601).

(d)The Contractor shall include in all negotiated subcontracts which the Contractor enters into, the substance of this clause, except paragraph (b), and shall require such inclusion in all other subcontracts, of any tier, including the obligation to comply with all applicable CAS in effect on the subcontractor's award date or if the subcontractor has submitted cost or pricing data, on the date of final agreement on price as shown on the subcontractor's signed Certificate of Current Cost or Pricing Data, except that—

(2)This requirement shall apply only to negotiated subcontracts in excess of $500,000.

(3)The requirement shall not apply to negotiated subcontracts otherwise exempt from the requirement to include a CAS clause as specified in 9903.201-1. (End of clause) [FR Doc. E7-11325 Filed 6-12-07; 8:45 am] BILLING CODE 3110-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070322065-7114-02; I.D. 030607C] RIN 0648-AV39 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 13 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: This final rule implements Amendment 13 to the Atlantic Sea Scallop Fishery Management Plan (Scallop FMP). Amendment 13 was developed by the New England Fishery Management Council (Council) to permanently re-activate the industry-funded observer program in the Scallop FMP through a scallop total allowable catch

(TAC)and days-at-sea

(DAS)set-aside program that helps vessel owners defray the cost of carrying observers. The following observer program management measures are implemented by this rule: Requirements for becoming an approved observer service provider; observer certification and decertification criteria; and notification requirements for vessel owners and/or operators. This action also requires scallop vessel owners, operators, or vessel managers to procure certified fishery observers for specified scallop fishing trips from an approved observer service provider. Additionally, this action allows adjustments to the observer program to be done through framework action. DATES: Effective June 12, 2007. ADDRESSES: Copies of Amendment 13, the public hearing document, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at *http://www.nefmc.org.* Amendment 13 is categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement. NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is contained in the Classification section of the preamble of this final rule. Copies of the FRFA and the Small Entity Compliance Guide are available from the Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298, and are also available via the internet at *http://www.nero.nmfs.gov.* Written comments regarding the burden-hour estimate or other aspects of the collection-of-information requirement contained in this final rule should be submitted to the Regional Administrator at the address above and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy Analyst, phone 978-281-9272, fax 978-281-9135. SUPPLEMENTARY INFORMATION: Background The Council adopted Amendment 13 to the Scallop FMP on February 7, 2007, and submitted it to NMFS on February 16, 2007, for review and approval. The Council developed Amendment 13 to permanently re-active the industry-funded scallop observer program implemented by NMFS via emergency rule in 2006. Observer coverage in the scallop fishery is necessary to monitor the bycatch of finfish, including yellowtail flounder, skates, monkfish, cod, and other species. Monitoring of yellowtail flounder bycatch in the Scallop Access Areas within the year-round closed areas under the Northeast

(NE)Multispecies FMP is of particular concern because the scallop fishery is constrained by a fishery-specific TAC of yellowtail flounder, an overfished species, which is part of the stock-wide yellowtail flounder TACs set by the NE Multispecies FMP to achieve specified mortality targets for the species. Observer coverage is also needed to monitor interactions of the scallop fishery with endangered and threatened sea turtles. A proposed rule for Amendment 13 was published on April 6, 2007 (72 FR 17076). The public comment period for the proposed rule ended on May 7, 2007. The notice of availability for the amendment published on March 19, 2007, and its required 60-day comment period closed on May 18, 2007. This rule implements management measures associated with the scallop observer program, which are described in detail below. Approved Management Measures In the proposed rule, NMFS requested comments on all proposed management measures. The approved management measures are discussed below; no measures in Amendment 13 were disapproved. Details concerning the development of these measures were presented in the preamble of the proposed rule and are not repeated here. Observer Service Provider Requirements Amendment 13 allows any entity to become an observer service provider if it meets the approval and responsibilities criteria. Potential observer service providers are required to submit an application containing detailed information such as contact information, description of past experience with placing individuals in remote field and/or marine environments, evidence of adequate insurance to cover injury, liability and accidental death for observers during employment, and proof of compensation for observers while employed that meet or exceed Department of Labor guidelines. Entities interested in being included on the list of NMFS-approved observer service providers are required to submit an application with the information described in the regulatory text of this action. Upon receipt of an application, NMFS will provide all potential observer service providers with an estimated number of observer sea days for the fishing year. Additionally, a planned schedule of observer deployments will be posted on this NOAA Web site: *http://www.nefsc.noaa.gov/femad/fsb/.* NMFS will notify candidate observer service providers of their approval or disapproval within 15 days of its receipt of their applications. If approved, the observer service provider's name will be added to the list of NMFS-approved observer service providers. Observer service providers will be required to comply with all observer support, deployment logistics and limitations, communication, training, reporting, and conflict of interest requirements in the regulatory text of this action. Observer service providers will also be responsible for setting the daily cost of observer coverage on a vessel. NMFS will continue to be responsible for determining the reduced DAS accrual rate and TAC for the set-aside program to defray the cost of observer coverage through biennial specifications. This NMFS-approval process will maintain quality control of the data collected, but will not have potential conflicts with augmentation of appropriations law and policy. Amendment 13 implements a few minor changes from the observer service provider requirements implemented by NMFS in 2006 via emergency rule. The cost of training/certifying scallop observers is borne by NMFS. To facilitate cost-effective training/certification, Amendment 13 requires a minimum class size of eight observers, which may be split among multiple observer service providers, to be enrolled in the scallop observer training class operated by the Northeast Fisheries Observer Program (NEFOP). Training classes with fewer than eight participants will be delayed until at least eight participants are enrolled. Amendment 13 also requires that an approved observer service provider maintain in its employ at least eight observers that had been certified through the scallop observer training class operated by NEFOP. The emergency rule required that an observer's first deployment shall be on a Scallop Access Area trip and that the resulting data be edited and approved by NMFS prior to any further deployments. Specifying details of new observer's first deployment was designed to provide the necessary oversight to ensure the collection of timely and accurate data. However, NEFOP has learned that requiring an observer's first deployment and the resulting data be edited and approved by NMFS, prior to any further deployments, is sufficient for quality control, and that requiring an observer's first deployment be on a Scallop Access Area trip may limit the availability of observers to provide coverage on scallop trips to open areas. Therefore, the requirement that an observer's first deployment and the resulting data be edited and approved by NMFS, prior to any further deployments, is implemented in this action, but the requirement that an observer's first deployment shall be on a Scallop Access Area trip is not. Observer Certification Requirements Amendment 13 requires that employees of observer service providers must meet the NMFS National Minimum Eligibility Standards available at *http://www.st.nmfs.gov/st4/nop/* and must pass the NEFOP training course and be physically and mentally capable of carrying out the responsibilities of an observer. NMFS has the authority to review observer certification and issue observer certification probation and/or decertification if warranted. One minor addition to the observer certification requirements implemented by emergency rule is that Amendment 13 requires that all observers hold a current Red Cross (or equivalent) cardiopulmonary resuscitation/first aid certificate. Removal/Decertification Requirements Amendment 13 specifies criteria and protocols for removal of an observer service provider from the list of NMFS-approved observer service providers and the probation and decertification of an observer. Vessel Requirements Amendment 13 specifies general requirements for scallop vessels, notification procedures, and requirements of the vessel if it is selected to carry an observer. Vessels are responsible for paying the cost of an observer, regardless of whether the vessel lands or sells scallops on that trip, and regardless of the availability of set-aside TAC or reduced DAS accrual rate. The emergency rule required that vessels contact NMFS prior to the 25th day of the month preceding the month in which it intends to fish. This requirement was designed by NMFS to provide NEFOP with an estimate of fishing effort to expect in the following month, so that observer coverage needs could be met. However, NEFOP has found that it does not need this provision to meet coverage needs; therefore, that notification requirement is not implemented in Amendment 13. Future Adjustments to the Observer Program Lastly, Amendment 13 provides for a framework mechanism to implement future adjustments to the scallop observer program. Under the Scallop FMP, and in accordance with the Administrative Procedure Act, the framework process allows for rulemaking to amend observer requirements without the need to also amend the FMP. Currently, adjustments to the observer program must be made through an amendment to the Scallop FMP. Providing for a framework mechanism in the Scallop FMP to make adjustments to measures implemented for the observer program will allow the Council more flexibility to develop improvements to the observer program. Comments and Responses NMFS received two comment letters on Amendment 13. *Comment 1:* The first comment expressed concern about the lack of Federal support for observer coverage of the scallop fishery. The commenter stated that the Scallop FMP requirement that industry pay for observer coverage was intended to provide observer coverage for trips into Scallop Access Areas, but not observer coverage on trips into open areas. The commenter acknowledged that the Scallop FMP's set-aside program generally does have a positive economic effect. However, the commenter cautioned that using the set-aside to pay for observer coverage may become burdensome for the industry if the abundance or price of scallops declines, especially for observer coverage in open areas. Instead, the commenter proposed that NMFS use Federal funds to pay for observer coverage in open area trips, to the extent that such funding is available. *Response:* The Scallop FMP requirement for industry to pay for observer coverage and the level of set-aside available to help defray the cost of observer coverage are not addressed in Amendment 13. However, they were established after being considered in prior scallop actions, particularly Amendment 10, the action that established the current set-aside program in July 2004. Amendment 13 only establishes the mechanism to allow the set-aside to be used; it does not adjust the set-aside program. If this action is implemented, future adjustments to the set-aside program, including adjustments evaluating the commenter's concerns, could be implemented by framework action. *Comment 2:* The second comment cautioned that a conflict of interest can result from industry-funded observer programs, leading to inaccurate and biased data. The commenter proposed camera surveillance as a better means to collect data. *Response:* NMFS concurs with the commenter that conflict of interest is an important issue to consider when developing an industry-funded observer program. Therefore, to minimize the likelihood that an observer would develop ties to a vessel owner/operator and/or feel pressured by a vessel owner/operator to misreport, Amendment 13 prohibits observer service providers from consecutively deploying the same observer on the same vessel and from deploying an observer on the same vessel more than twice a month. The Council did not consider electronic monitoring for the scallop fishery in Amendment 13, but as technology develops, electronic monitoring may be considered in a future action. Changes From the Proposed Rule In § 648.14, paragraph (h)(17) is revised to include the correct cross-reference. In § 648.14, paragraph (i)(15) is added to clarify the prohibition to be consistent with paragraph (h)(17). Classification The Administrator, Northeast Region, NMFS, determined that FMP Amendment 13 is necessary for the conservation and management of the Atlantic sea scallop fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and other applicable laws. NMFS approved Amendment 13 on May XX, 2007. A copy of the Amendment is available from the Council and NMFS (see ADDRESSES ). This final rule has been determined to be not significant for purposes of Executive Order 12866. There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for Amendment 13. Because Amendment 13 maintains a mechanism for an industry-funded observer program that has been in place since last year, delaying the effective date of Amendment 13 would be more disruptive and would cause more economic and resource conservation concerns than waiving the delay in effective date. Amendment 13 permanently implements, with minor modifications, the industry-funded scallop observer program implemented by NMFS through an emergency rule in 2006. Observer coverage in the scallop fishery is necessary to monitor groundfish bycatch, particularly yellowtail flounder bycatch in the Scallop Access Areas. It is also needed to monitor interactions between the scallop fishery and sea turtles, especially in the Mid-Atlantic during June through October. The emergency rule that implemented the industry-funded scallop observer program in 2006 expires on June 11, 2007, and the Scallop Access Areas open on June 15, 2007. To prepare for the opening of the Scallop Access Areas, NMFS recently completed a three-week training course for 20 observers for the industry-funded scallop program. The cost of this training was approximately $112,640 (approximately $5,632 per observer) and included lodging, meals, travel, salary, leasing training vessels, safety training, and security clearances. If there is a delay in effective date of Amendment 13 and these observers are not able to work, they will likely move on to other jobs and additional observers would need to be found and trained. Because trained observers are valuable and difficult to replace, it would take a minimum of three months to locate and train additional observers. Additionally, there would be a loss of income, potentially severe, for observer service providers who employ industry-funded observers for the scallop fishery, if there is a delay in effective date in Amendment 13 resulting in a lapse of an industry-funded observer program. NMFS's current and anticipated funding only provides for minimal observer coverage in the scallop fishery. Delaying the implementation of Amendment 13, and its provision for an industry-funded observer coverage in the scallop fishery, would likely result in less than sufficient observer coverage levels for monitoring the yellowtail flounder bycatch in Scallop Access Areas when they open on June 15, 2007. Scallop Access Areas have restrictive yellowtail flounder bycatch TACs that require close monitoring to achieve specified mortality targets. Observer data are used to calculate yellowtail flounder catch rates in these areas and catch rates are extrapolated to unobserved trips. Observer coverage is essential in order to project TAC attainment and close the Scallop Access Areas. Closing Scallop Access Areas after the yellowtail flounder bycatch TACs for Scallop Access Areas are exceeded could result in exceeding mortality targets for an overfished stock, thereby slowing rebuilding of an overfished stock, and potentially conflicting with requirements of National Standard 1 of the Magnuson-Stevens Act to rebuild overfished stocks within a specified time period. Additionally, observer coverage to monitor interactions between the scallop fishery and sea turtles is particularly important during June through October. Sea turtles are known to occur in areas where the scallop fishery operates during this period and sea turtle takes in scallop trawl and dredge gear have been observed during these months. Delaying the implementation of Amendment 13 would also likely result in less than sufficient observer coverage to document interactions between the scallop fishery and sea turtles in June, and perhaps July. Even though compliance with the Endangered Species Act

(ESA)does not require observer coverage in the Mid-Atlantic scallop fishery because of mandatory gear modifications, observer coverage of the scallop fishery continues to provide important information to advance knowledge of how, where, and to what extent ESA-listed sea turtles interact with dredge and trawl gear used in the scallop fishery. Lastly, the management effects of having minimal observer coverage in the scallop fishery during June, and possibly July could result in negative economic impacts on the scallop industry for the 2007 fishing year. Scallop harvest from Scallop Access Areas is a substantial source of income for the scallop fleet. Should these areas close earlier than necessary because of less reliable data on yellowtail flounder bycatch, the fleet would experience reduced fishing opportunities and reduced harvest. For these reasons, there is good cause to waive the 30-day delay in effectiveness for Amendment 13. The need for this waiver is due to the timing of the amendment's submission by the Council to NMFS. Amendment 13 was adopted by the Council on February 7, 2007, and was submitted to NMFS for review and approval on February 16, 2007. The notice of availability for the amendment published on March 19, 2007, and its required 60-day comment period closed on May 18, 2007. The proposed rule for Amendment 13 published on April 6, 2007, and its 30-day comment period closed on May 7, 2007. A final regulatory flexibility analysis

(FRFA)was prepared. The FRFA incorporates the IRFA, a summary of the significant issues raised by public comment in response to the IRFA, NMFS responses to those comments, and the corresponding economic analyses prepared for Amendment 13. The contents of these incorporated documents are not repeated in detail here. A copy of Amendment 13 and the IRFA are available upon request (see ADDRESSES ). Statement of Need for This Action The objective of this action is to re-activate the industry-funded observer program for the scallop fishery. Observer coverage is necessary in the scallop fishery to monitor bycatch of finfish and interactions with endangered and threatened species. The need for this action is to provide a mechanism to approve observer service providers so that the set-aside program can be utilized to help defray costs of carrying the necessary level of observers in the scallop fishery. A complete description of the reasons why this action is being implemented, and the objectives of and legal basis for this action, is contained in the preamble to the proposed rule (72 FR 17076, April 6, 2007) and is not repeated here. A Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA, a Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Proposed Rule as a Result of Such Comments As discussed in the preamble, an industry representative commented that the Scallop FMP requirement for industry to pay for observer coverage was intended to provide observer coverage for trips into Scallop Access Areas, but not observer coverage on trips into open areas. The commenter acknowledged that the Scallop FMP's set-aside program generally does have a positive economic effect. However, the commenter cautioned that using the set-aside to pay for observer coverage may become burdensome for the industry if the abundance or price of scallops declines, especially for observer coverage in open areas. The Scallop FMP requirement for industry to pay for observer coverage and the level of set-aside available to help defray the cost of observer coverage are not addressed in Amendment 13. However, they were considered in prior scallop actions, particularly Amendment 10, the action that established the current set-aside program in July 2004. Amendment 13 only implements administrative tools to allow the set-aside to be used; it does not adjust the set-aside program. If this action is implemented, future adjustments to the set-aside program, including adjustments evaluating the commenter's concerns, could be implemented by framework action. No changes to the proposed rule were made as a result of this comment. Description of Small Entities to Which This Action Will Apply The vessels in the scallop fishery could all be considered small business entities because all of them grossed less than $4 million, according to the dealer data, for 2004 to 2006. This action will affect vessels with limited access and general category scallop permits. According to the recent permit data, there were 318 vessels that obtained full-time limited access permits in 2006, including 55 small-dredge and 14 scallop trawl permits. In the same year, there were also 32 part-time and 1 occasional limited access permit in the scallop fishery. In addition, 2,501 permits were issued to vessels in the open access general category and over 500 of these vessels landed scallops during the last 2 years. These numbers could change as the fishing year progresses. There are no large entities participating in this fishery, as defined in section 601 of the RFA. Therefore, there are no disproportionate economic impacts on small entities. Description of Reporting, Recordkeeping, and Other Compliance Requirements This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. This final rule maintains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), previously approved under control number 0648-0546 in conjunction with the emergency action. Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities Was Rejected Approved Action Previous scallop regulatory actions established provisions that impose some cost on vessels that participate in the scallop fishery by requiring vessels to carry and pay for observers on some trips. Compliance costs associated with the observer coverage can be minimized through the set-aside ( *i.e.* , TAC and DAS, depending on fishing area) that will provide compensation to vessel owners that have paid for observers. This action re-activates the mechanism that allows vessels to offset the costs of observer coverage and harvesting additional scallops from the set-aside. The net impacts of the observer program on vessels that participate in the scallop fishery will depend on scallop prices, trip costs, observer costs, and the TAC or reduced DAS accrual rate provided by NMFS. The analyses presented in Amendment 13 showed that, in some circumstances, observer coverage could reduce crew and vessel income by extending the trip and increasing the trip costs, especially for vessels with a lower catch rate per DAS. But in most cases, overall costs due to the observer coverage will be minimized, and may even yield positive economic benefits, due to the compensation that would be provided by NMFS. The average total revenue for a general category vessel was $139,755 for the first 11 months of the 2006 fishing year, $249,167 for fishing year 2005, and $260,942 for fishing year 2004. Assuming that the cost of an observer would be $800 per day-at-sea (or $33.30 per hour, slightly higher than the $775 paid by vessels during the 2006 fishing year), average observer costs per general category vessel were estimated to be about $1,440 per trip in 2006. A cost of $1,400 per vessel for the year, assuming that each vessel carries an observer on only one trip, would amount to about 1 percent of total revenue. Similarly, the average total revenue of a limited access vessel was $803,873 for the first 11 months of the 2006 fishing year, $1,072,991 for fishing year 2005, and $988,401 for fishing year 2004. Average observer costs per limited access vessel were $6,560 per trip in 2006. Again, assuming that each vessel carries an observer on only one trip, observer cost would amount to less than 1 percent of the total revenue. (These are the amounts paid to the observer provider and do not include compensation through TAC or DAS set-asides.) Because of the set-aside, compliance costs to scallop vessels are expected to be considerably less than these amounts, under most circumstances. However, as described previously, if there is no set-aside, or no remaining set-aside, to help pay for the observer coverage, the vessels would be responsible for paying the observer, regardless of whether the vessel lands or sells scallops on that trip. This has been the process since the set-aside program was implemented in 1999, but NMFS usually distributes the set-aside such that the majority, if not all trips with an observer aboard, are at least partially compensated. Economic impacts on scallop vessels, under several scenarios for both limited access and general category vessels, were analyzed in the IRFA for Amendment 13. Scenarios are based on set variables ( *i.e.,* trip costs, cost of observer, and the compensation (either TAC or DAS) provided by NMFS for carrying an observer) and fluctuating variables ( *i.e.,* landings per unit effort, price of scallops). While TAC compensation is provided by NMFS, vessels must incur additional costs to harvest the compensation TAC. Economic impacts on vessels in the scallop fleet are analyzed in the IRFA by considering set variables, fluctuating variables, and whether or not a vessel carries an observer for a trip. Although the IRFA in Amendment 13 analyzes several scenarios, the results are summarized as follows: For limited access vessels, fluctuating variables in the assumptions include: Landings per unit effort

(LPUE)ranging from 1,800 lb (816.5 kg) per DAS to 800 lb (362.9 kg) per DAS and scallop price ranging from $7.60 per lb to $6.00 per lb. Given the highest LPUE and highest price, a vessel's income could be expected to increase by about $9,280 with an observer onboard (from $61,560 without an observer, to $70,840 with an observer). A vessel's crew income could be expected to increase by about $10,722 with an observer (from $63,540 without an observer, to $72,282 with an observer). The increase in income when carrying an observer is due to the compensation for carrying an observer, either additional pounds (400 lb (181.4 kg) per day) or DAS (0.15 reduced accrual rate in open areas). With an LPUE of 800 lb (362.9 kg) per DAS and a price of $7.60 per lb, a vessel's income could be expected to decline by about $32 with an observer onboard (from $24,624 without an observer to $24,592 with an observer). A vessel's crew income could be expected to decline by about $1,619 with an observer (from $19,566 without an observer, to $17,947 with an observer). These decreases in income result from extended trip lengths to catch the additional pounds to pay for an observer. General category vessels are subject to the industry-funded observer provisions only when fishing in Scallop Access Areas and are compensated with additional pounds per trip. With a compensation of 400 lb (181.4 kg) per day, a vessel would cover observer costs of $1,600 by fishing 2 days and landing 1,200 lb (544.3 kg) of scallops (400 lb (181.4 kg) for the trip and 800 lb (362.9 kg) as compensation). At a price of $6.00 per lb, the vessel would generate $7,200 revenue from scallops, and would increase total crew income by $1,410 and vessel income by $1,440. At a scallop price of $7.60 per lb, vessels and crews could be expected to increase revenues even at a lower compensation rate. By fishing more days, a vessel could experience even more gains in revenue. For example, by fishing 3.5 days and receiving 1,600 lb (725.7 kg) in compensation, total scallop revenue could increase to $15,200 at a price of $7.60 per lb, increasing both crew and vessel income by over $4,000. These positive impacts on vessels are due to the fact that general category vessels are not allowed to land more than 400 lb (181.4 kg) on regular trips and, even at a price of $6.00 per lb, a compensation amount of 400 lb (181.4 kg) could bring $2,400 in revenue, exceeding the cost of the observer and trip costs. However, if compensation pounds were set too low, or if prices decline below $6.00 per lb, the economic gains from compensation for carrying an observer could decline. Observer coverage would improve information that could be used to reduce the amount of finfish bycatch and the level of sea turtle takes in the scallop fishery. This could eliminate the need for more conservative management measures in the future that may potentially have adverse impacts on the scallop industry. For these reasons and the reasons described above, the benefits of the observer program are expected to exceed costs of this program and have positive economic impacts on vessels participating in the scallop fishery. The mechanism to allow adjustment of the observer program through framework action could be used to reduce the differential impacts of this program on some vessels, such as by implementing different TAC amounts and DAS accrual rates for smaller vessels. The adjustments through framework could also provide more flexibility to the program in determining the amount of set-aside or the way the observer costs are shared among the vessels in the scallop fleet. Participation by potential observer service providers is voluntary and, since no Federal action is requiring participation, further assessment of the potential impacts on these entities is not required. No significant quantifiable impacts on scallop prices and change in benefits to the consumers are expected from this action, since the observer program is not expected to impact scallop landings in a significant way. Non-Selected Alternatives This action permanently re-activates the industry-funded observer program in the Scallop FMP through a set-aside program that helps vessel owners defray the cost of carrying observers. The alternatives to this action do not provide for an industry-funded observer program. Under the no action alternative, the emergency rule would expire and no regulations would be implemented allowing for funding in addition to that provided by NMFS under its existing observer program. However, as discussed previously, NMFS's current and anticipated funding would only provide for minimal observer coverage in the scallop fishery. Therefore, under the no action alternative, observer coverage levels would likely be less than sufficient for monitoring the yellowtail flounder bycatch TAC in Scallop Access Areas and interactions between the scallop fishery and sea turtles in the Mid-Atlantic during June through October. Due to implications of having minimal observer coverage ( *e.g.* , earlier closures based on less reliable bycatch estimates), no action would likely result in negative economic impacts ( *e.g.* , reduced fishing opportunity, reduced harvest) for the scallop industry in both the short and long-term. Without an industry-funded observer program, adequate observer coverage for the scallop fishery could only occur if provided wholly by NMFS. However, because of resource constraints, it is not realistically possible for NMFS to wholly fund an adequate level of observer coverage for the scallop fishery. The set-aside program is already an established provision in the scallop regulations and the measures in this final rule only establish a mechanism to enable the set-asides to be utilized by the industry as compensation for having paid for observer coverage. Measures to modify and improve the set-aside program are outside the scope of Amendment 13. During the Council's public hearing on Amendment 13 and public comment on the proposed rule, the scallop industry expressed concern that the proposed action would not provide a complete solution to the economic impacts associated with having to pay for observers under the existing set-aside program. The scallop industry also acknowledged that there were no other alternatives, besides the proposed and no action alternatives, that could be considered in Amendment 13. Based on this public input, this action also establishes a mechanism to allow future modifications to the observer program to be implemented by framework action. Providing for a framework mechanism in the Scallop FMP to make adjustments to the observer program would allow more flexibility to address industry's concerns with the program. Because of the administrative nature of this action, there were no other reasonable alternatives. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. The guide will be sent to all holders of permits issued for the Atlantic scallop fishery. In addition, copies of this final rule and guide ( *i.e.* , permit holder letter) are available from the Regional Administrator, Northeast Region (see ADDRESSES ). This final rule maintains collection-of-information requirements subject to the PRA, previously approved under control number 0648-0546 in conjunction with the emergency action. These requirements apply to entities interested in becoming NMFS-approved observer service providers and to those observer service providers approved by NMFS and providing observer services to the scallop fishery. Public reporting burden for these collections of information are estimated to average as follows: 1. Application for approval of observer service provider—10 hr per response; 2. Applicant response to denial of application for approval of observer service provider—10 hr per response; 3. Observer service provider request for observer training—30 min per response; 4. Observer deployment report—10 min per response; 5. Observer availability report—10 min per response; 6. Safety refusal report—30 min per response; 7. Submission of raw observer data—5 min per response; 8. Observer debriefing—2 hr per response; 9. Biological samples—5 min per response; 10. Rebuttal of pending removal from list of approved observer service providers—8 hr per response; 11. Vessel request to observer service provider for procurement of a certified observer—25 min per response; and 12. Vessel request for waiver of observer coverage requirement—5 min per response. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov,* or fax to

(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: June 8, 2007. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.10, paragraph (b)(4) is revised to read as follows: § 648.10 DAS and VMS notification requirements.

(b)* * *

(4)*Atlantic sea scallop vessel VMS notification requirements.* Less than 1 hr prior to leaving port, the owner or authorized representative of a scallop vessel that is required to use VMS as specified in paragraph (b)(1) of this section must notify the Regional Administrator by entering the appropriate VMS code that the vessel will be participating in the scallop DAS program, Area Access Program, or general category scallop fishery. VMS codes and instructions are available from the Regional Administrator upon request. 3. In § 648.11, paragraph

(a)is revised, and paragraphs (g), (h), and

(i)are added to read as follows: § 648.11 At-sea sampler/observer coverage.

(a)The Regional Administrator may request any vessel holding a permit for Atlantic sea scallops, NE multispecies, monkfish, skates, Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish, spiny dogfish, Atlantic herring, tilefish, or Atlantic deep-sea red crab; or a moratorium permit for summer flounder; to carry an NMFS-certified fisheries observer. A vessel holding a permit for Atlantic sea scallops is subject to the additional requirements specified in paragraph

(g)of this section.

(1)For the purpose of deploying at-sea observers, sea scallop vessel owners are required to notify NMFS of scallop trips as specified in paragraph

(g)of this section. Unless otherwise notified by the Regional Administrator, owners of scallop vessels shall be responsible for paying the cost of the observer for all scallop fishing trips on which an observer is carried onboard the vessel, regardless of whether the vessel lands or sells sea scallops on that trip, and regardless of the availability of set-aside for an increased possession limit, or reduced accrual rate of DAS.

(2)[Reserved]

(g)*Atlantic sea scallop observer program* —(1) *General* . Unless otherwise specified, owners, operators, and/or managers of vessels issued a Federal scallop permit under § 648.4(a)(2), and specified in paragraph

(b)of this section, must comply with this section and are jointly and severally responsible for their vessel's compliance with this section. To facilitate the deployment of at-sea observers, all sea scallop vessels issued limited access permits fishing in open areas or Sea Scallop Access Areas, and general category vessels fishing under the Sea Scallop Access Area program specified in § 648.60, are required to comply with the additional notification requirements specified in paragraph (g)(2) of this section. All sea scallop vessels issued a VMS general category or Non-VMS general scallop permit that are participating in the Area Access Program specified in § 648.60 are required to comply with the additional VMS notification requirements specified in paragraph (g)(2) of this section. When NMFS notifies the vessel owner, operator, and/or manager of any requirement to carry an observer on a specified trip in either an Access Area or Open Area as specified in paragraph (g)(3) of this section, the vessel may not fish for, take, retain, possess, or land any scallops without carrying an observer. Vessels may only embark on a scallop trip in open areas or Access Areas without an observer if the vessel owner, operator, and/or manager has been notified that the vessel has received a waiver of the observer requirement for that trip pursuant to paragraphs (g)(3) and (g)(4)(ii) of this section.

(2)*Vessel notification procedures* . For the purpose of determining if an observer will be deployed on a vessel for a specific trip, the owner, operator, or manager of a vessel issued a limited access permit fishing in open areas or in the Sea Scallop Access Area program specified in § 648.60, or the owner, operator, or manager of a vessel issued a general category scallop permit and fishing in the Sea Scallop Access Area program specified in § 648.60, is required to comply with the following notification requirement. For each scallop trip, the vessel owner, operator, and/or manager shall notify NMFS by telephone, using the phone number provided by the Regional Administrator in the Small Entity Compliance Guide, and provide the following information: Vessel name and permit number; contact name and number; date and time of departure; port of departure; area to be fished (either open areas or the specific Sea Scallop Access Area); and whether fishing as a scallop dredge, scallop trawl, or general category vessel.

(3)*Selection of scallop fishing trips for observer coverage* . Based on predetermined coverage levels for various sectors of the scallop fishery that are provided by NMFS in writing to all observer service providers approved pursuant to paragraph

(h)of this section, NMFS shall notify the vessel owner, operator, or vessel manager whether the vessel must carry an observer, or if a waiver has been granted, for the specified trip within 24 hr of the vessel owner's, operator's, or vessel manager's notification of the prospective trip, as specified in paragraph (g)(2) of this section. Any request to carry an observer may be waived by NMFS. All waivers for observer coverage shall be issued to the vessel by VMS so as to have on-board verification of the waiver.

(4)*Procurement of observer services by scallop vessels* .

(i)An owner of a scallop vessel required to carry an observer under paragraph (g)(3) of this section must arrange for carrying an observer certified through the observer training class operated by the Northeast Fisheries Observer Program (hereinafter NMFS/NEFOP certified) from an observer service provider approved by NMFS under paragraph

(h)of this section. A list of approved observer service providers shall be posted on the NOAA/NEFOP Web site at *http://www.nefsc.noaa.gov/femad/fsb/* . The owner, operator, or vessel manager of a vessel selected to carry an observer must contact the observer service provider and must provide at least 72-hr notice in advance of the fishing trip for the provider to arrange for observer deployment for the specified trip.

(ii)An owner, operator, or vessel manager of a vessel that cannot procure a certified observer within 72 hr of the advance notification to the provider due to the unavailability of an observer, may request a waiver from NMFS from the requirement for observer coverage for that trip, but only if the owner, operator, or vessel manager has contacted all of the available observer service providers to secure observer coverage and no observer is available. NMFS shall issue such a waiver within 24 hr, if the conditions of this paragraph (g)(4)(ii) are met.

(5)Owners of scallop vessels shall be responsible for paying the cost of the observer for all scallop fishing trips on which an observer is carried onboard the vessel, regardless of whether the vessel lands or sells sea scallops on that trip, and regardless of the availability of set-aside for an increased possession limit or reduced DAS accrual rate. The owners, operators, and/or managers of vessels that carry an observer may be compensated with a reduced DAS accrual rate for open area trips or additional scallop catch per day in access areas in order to help defray the cost of the observer, under the program specified in §§ 648.53 and 648.60. Observer service providers are responsible for setting the daily rate for observer coverage on a vessel. NMFS shall determine any reduced DAS accrual rate and the amount of additional pounds of scallops per day fished in an access area for the applicable fishing year based on the economic conditions of the scallop fishery, as determined by best available information. Vessel owners and observer service providers shall be notified by Small Entity Compliance Guide of any DAS accrual rate and additional pounds of scallops determined by the Regional Administrator. The Regional Administrator may adjust the DAS accrual rate and additional pounds of scallops, if necessary, based on economic conditions of the scallop fishery. Vessel owners and observer providers shall be notified of any such adjustments through a letter.

(6)When the available DAS or TAC set-aside for observer coverage is exhausted, vessels shall still be required to carry an observer as specified in this section, and shall be responsible for paying for the cost of the observer, but shall not be authorized to harvest additional pounds or fish at a reduced DAS accrual rate.

(h)*Observer service provider approval and responsibilities* —(1) *General* . An entity seeking to provide observer services to the Atlantic sea scallop fishery must apply for and obtain approval from NMFS following submission of a complete application to The Observer Program Branch Chief, 25 Bernard St Jean Drive, East Falmouth, MA 02536. A list of approved observer service providers shall be distributed to scallop vessel owners and shall be posted on NMFS's Web page, as specified in paragraph (g)(4) of this section.

(2)[Reserved]

(3)*Contents of application* . An application to become an approved observer service provider shall contain the following:

(i)Identification of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and staff. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.

(ii)The permanent mailing address, phone and fax numbers where the owner(s) can be contacted for official correspondence, and the current physical location, business mailing address, business telephone and fax numbers, and business e-mail address for each office.

(iii)A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, that they are free from a conflict of interest as described under paragraph (h)(6) of this section.

(iv)A statement, signed under penalty of perjury, from each owner or owners, board members, and officers, if a corporation, describing any criminal convictions, Federal contracts they have had, and the performance rating they received on the contract, and previous decertification action while working as an observer or observer service provider.

(v)A description of any prior experience the applicant may have in placing individuals in remote field and/or marine work environments. This includes, but is not limited to, recruiting, hiring, deployment, and personnel administration.

(vi)A description of the applicant's ability to carry out the responsibilities and duties of a scallop fishery observer services provider as set out under paragraph (h)(5) of this section, and the arrangements to be used.

(vii)Evidence of holding adequate insurance to cover injury, liability, and accidental death for observers during their period of employment (including during training). Workers' Compensation and Maritime Employer's Liability insurance must be provided to cover the observer, vessel owner, and observer provider. The minimum coverage required is $5 million. Observer service providers shall provide copies of the insurance policies to observers to display to the vessel owner, operator, or vessel manager, when requested.

(viii)Proof that its observers, either contracted or employed by the service provider, are compensated with salaries that meet or exceed the Department of Labor

(DOL)guidelines for observers. Observers shall be compensated as Fair Labor Standards Act

(FLSA)non-exempt employees. Observer providers shall provide any other benefits and personnel services in accordance with the terms of each observer's contract or employment status.

(ix)The names of its fully equipped, NMFS/NEFOP certified observers (with resumes) on staff or a list of its training candidates (with resumes) and a request for a NMFS/NEFOP Sea Scallop Observer Training class. The NEFOP training has a minimum class size of eight individuals; which may be split among multiple vendors requesting training. Requests for training classes with fewer than eight individuals will not be processed until further requests make up the full training class size.

(x)An Emergency Action Plan

(EAP)describing its response to an “at sea” emergency with an observer, including, but not limited to, personal injury, death, harassment, or intimidation.

(4)*Application evaluation* .

(i)NMFS shall review and evaluate each application submitted under paragraphs (h)(2) and (h)(3) of this section. Issuance of approval as an observer provider shall be based on completeness of the application, and a determination by NMFS of the applicant's ability to perform the duties and responsibilities of a sea scallop fishery observer service provider as demonstrated in the application information. A decision to approve or deny an application shall be made by NMFS within 15 days of receipt of the application by NMFS.

(ii)If NMFS approves the application, the observer service provider's name will be added to the list of approved observer service providers found on NMFS's Web site specified in paragraph (g)(4) of this section and in any outreach information to the industry. Approved observer service providers shall be notified in writing and provided with any information pertinent to their participation in the sea scallop fishery observer program.

(iii)An application shall be denied if NMFS determines that the information provided in the application is not complete or NMFS concludes that the applicant does not have the ability to perform the duties and responsibilities of a sea scallop fishery observer service provider. NMFS shall notify the applicant in writing of any deficiencies in the application or information submitted in support of the application. An applicant who receives a denial of his or her application may present additional information, in writing, to rectify the deficiencies specified in the written denial, provided such information is submitted to NMFS within 30 days of the applicant's receipt of the denial notification from NMFS. In the absence of additional information, and after 30 days from an applicant's receipt of a denial, an observer provider is required to resubmit an application containing all of the information required under the application process specified in paragraph (h)(3) of this section to be re-considered for being added to the list as an approved observer service provider.

(5)*Responsibilities of observer service providers.*

(i)An observer service provider must provide observers certified by NMFS/NEFOP pursuant to paragraph

(i)of this section for deployment in the sea scallop fishery when contacted and contracted by the owner, operator, or vessel manager of a vessel fishing in the scallop fishery, unless the observer service provider does not have an available observer within 72 hr of receiving a request for an observer from a vessel owner, operator, and/or manager, or refuses to deploy an observer on a requesting vessel for any of the reasons specified at paragraph (h)(5)(viii) of this section. An approved observer service provider must maintain in its employ a minimum of eight NMFS/NEFOP certified observers in order to remain approved. Should a service provider's employed NMFS/NEFOP certified observers drop below eight, the provider must supply the appropriate number of candidates to the next available training class. Failure to do so shall be cause for suspension of the provider's approved status, until rectified.

(ii)An observer service provider must provide to each of its observers:

(A)All necessary transportation, including arrangements and logistics, of observers to the initial location of deployment, to all subsequent vessel assignments, and to any debriefing locations, if necessary;

(B)Lodging, per diem, and any other services necessary for observers assigned to a scallop vessel or to attend a NMFS/NEFOP Sea Scallop Observer Training class;

(C)The required observer equipment, in accordance with equipment requirements listed on NMFS's Web site specified in paragraph (g)(4) of this section under the Sea Scallop Program, prior to any deployment and/or prior to NMFS observer certification training; and

(D)Individually assigned communication equipment, in working order, such as a cell phone or pager, for all necessary communication. An observer service provider may alternatively compensate observers for the use of the observer's personal cell phone or pager for communications made in support of, or necessary for, the observer's duties.

(iii)*Observer deployment logistics.* Each approved observer service provider must assign an available certified observer to a vessel upon request. Each approved observer service provider must provide for access by industry 24 hr per day, 7 days per week, to enable an owner, operator, or manager of a vessel to secure observer coverage when requested. The telephone system must be monitored a minimum of four times daily to ensure rapid response to industry requests. Observer service providers approved under paragraph

(h)of this section are required to report observer deployments to NMFS daily for the purpose of determining whether the predetermined coverage levels are being achieved in the scallop fishery.

(iv)*Observer deployment limitations.* Unless alternative arrangements are approved by NMFS, an observer provider must not deploy any observer on the same vessel for two or more consecutive deployments, and not more than twice in any given month. A certified observer's first deployment and the resulting data shall be immediately edited, and approved, by NMFS prior to any further deployments of that observer.

(v)*Communications with observers.* An observer service provider must have an employee responsible for observer activities on call 24 hr a day to handle emergencies involving observers or problems concerning observer logistics, whenever observers are at sea, stationed shoreside, in transit, or in port awaiting vessel assignment.

(vi)*Observer training requirements.* The following information must be submitted to NMFS to request a certified observer training class at least 30 days prior to the beginning of the proposed training class: Date of requested training; a list of observer candidates, with a minimum of eight individuals; observer candidate resumes; and a statement signed by the candidate, under penalty of perjury, that discloses the candidate's criminal convictions, if any. All observer trainees must complete a basic cardiopulmonary resuscitation/first aid course prior to the beginning of a NMFS/NEFOP Sea Scallop Observer Training class. NMFS may reject a candidate for training if the candidate does not meet the minimum qualification requirements as outlined by NMFS National Minimum Eligibility Standards for observers as described in paragraph (i)(1) of this section.

(vii)*Reports* —(A) *Observer deployment reports.* The observer service provider must report to NMFS/NEFOP when, where, to whom, and to what fishery (open or closed area) an observer has been deployed, within 24 hr of the observer's departure. The observer service provider must ensure that the observer reports back to NMFS its Observer Contract (OBSCON) data, as described in the certified observer training, within 12 hr of landing. OBSCON data are to be submitted electronically or by other means as specified by NMFS. The observer service provider shall provide the raw (unedited) data collected by the observer to NMFS within 72 hr of the trip landing.

(B)*Safety refusals.* The observer service provider must report to NMFS any trip for which the deployment of an observer has been refused due to safety issues, e.g., failure to hold a valid USCG Commercial Fishing Vessel Safety Examination Decal, or failure to meet the safety requirements of the observer's pre-trip vessel safety checklist, within 24 hr of the refusal.

(C)*Biological samples.* The observer service provider must ensure that biological samples, including whole marine mammals, sea turtles, and sea birds, are stored/handled properly and transported to NMFS within 7 days of landing.

(D)*Observer debriefing.* The observer service provider must ensure that the observer remains available to NMFS, either in-person or via phone, at NMFS's discretion, including NMFS Office for Law Enforcement, for debriefing for at least 2 weeks following any observed trip. An observer that is at sea during the 2-week period must contact NMFS upon his or her return, if requested to do so by NMFS.

(E)*Observer availability report.* The observer service provider must report to NMFS any occurrence of inability to respond to an industry request for observer coverage due to the lack of available observers on staff by 5:00 p.m., Eastern Standard Time, of any day on which the provider is unable to respond to an industry request for observer coverage.

(F)*Other reports.* The observer provider must report possible observer harassment, discrimination, concerns about vessel safety or marine casualty, or observer illness or injury; and any information, allegations, or reports regarding observer conflict of interest or breach of the standards of behavior, to NMFS/NEFOP within 24 hr of the event or within 24 hr of learning of the event.

(viii)*Refusal to deploy an observer.* —(A) An observer service provider may refuse to deploy an observer on a requesting scallop vessel if the observer service provider does not have an available observer within 72 hr of receiving a request for an observer from a vessel.

(B)An observer service provider may refuse to deploy an observer on a requesting scallop vessel if the observer service provider has determined that the requesting vessel is inadequate or unsafe pursuant to the reasons described at § 600.746.

(C)The observer service provider may refuse to deploy an observer on a scallop vessel that is otherwise eligible to carry an observer for any other reason, including failure to pay for previous observer deployments, provided the observer service provider has received prior written confirmation from NMFS authorizing such refusal.

(6)*Limitations on conflict of interest.* An observer service provider:

(i)Must not have a direct or indirect interest in a fishery managed under Federal regulations, including, but not limited to, a fishing vessel, fish dealer, fishery advocacy group, and/or fishery research;

(ii)Must assign observers without regard to any preference by representatives of vessels, other than when an observer will be deployed; and

(iii)Must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who conducts fishing or fishing related activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the official duties of observer providers.

(7)*Removal of observer service provider from the list of approved observer service providers.* An observer provider that fails to meet the requirements, conditions, and responsibilities specified in paragraphs (h)(5) and (h)(6) of this section shall be notified by NMFS, in writing, that it is subject to removal from the list of approved observer service providers. Such notification shall specify the reasons for the pending removal. An observer service provider that has received notification that it is subject to removal from the list of approved observer service providers may submit written information to rebut the reasons for removal from the list. Such rebuttal must be submitted within 30 days of notification received by the observer service provider that the observer service provider is subject to removal and must be accompanied by written evidence rebutting the basis for removal. NMFS shall review information rebutting the pending removal and shall notify the observer service provider within 15 days of receipt of the rebuttal whether or not the removal is warranted. If no response to a pending removal is received by NMFS within 30 days of the notification of removal, the observer service provider shall be automatically removed from the list of approved observer service providers. The decision to remove the observer service provider from the list, either after reviewing a rebuttal, or automatically if no timely rebuttal is submitted, shall be the final decision of the Department of Commerce. Removal from the list of approved observer service providers may not prevent such observer service provider from obtaining an approval in the future if a new application is submitted that demonstrates that the reasons for removal are remedied. Certified observers under contract with an observer service provider that has been removed from the list of approved service providers must complete their assigned duties for any scallop trips on which the observers are deployed at the time the observer service provider is removed from the list of approved observer service providers. An observer service provider removed from the list of approved observer service providers is responsible for providing NMFS with the information required in paragraph (h)(5)(vii) of this section following completion of the trip. NMFS may consider, but is not limited to, the following in determining if an observer service provider may remain on the list of approved observer service providers:

(i)Failure to meet the requirements, conditions, and responsibilities of observer service providers specified in paragraphs (h)(5) and (h)(6) of this section;

(ii)Evidence of conflict of interest as defined under paragraph (h)(6) of this section;

(iii)Evidence of criminal convictions related to:

(A)Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; or

(B)The commission of any other crimes of dishonesty, as defined by state law or Federal law, that would seriously and directly affect the fitness of an applicant in providing observer services under this section;

(iv)Unsatisfactory performance ratings on any Federal contracts held by the applicant; and

(v)Evidence of any history of decertification as either an observer or observer provider.

(i)*Observer certification.*

(1)To be certified, employees or sub-contractors operating as observers for observer service providers approved under paragraph

(h)of this section must meet NMFS National Minimum Eligibility Standards for observers. NMFS National Minimum Eligibility Standards are available at the National Observer Program Web site: *http://www.st.nmfs.gov/st4/nop/.*

(2)*Observer training.* In order to be deployed on any scallop vessel, a candidate observer must have passed a NMFS/NEFOP Sea Scallop Fisheries Observer Training course. If a candidate fails training, the candidate shall be notified in writing on or before the last day of training. The notification will indicate the reasons the candidate failed the training. A candidate that fails training shall not be able to enroll in a subsequent class. Observer training shall include an observer training trip, as part of the observer's training, aboard a scallop vessel with a trainer. A certified observer's first deployment and the resulting data shall be immediately edited, and approved, by NMFS prior to any further deployments of that observer.

(3)*Observer requirements.* All observers must:

(i)Have a valid NMFS/NEFOP fisheries observer certification pursuant to paragraph (i)(1) of this section;

(ii)Be physically and mentally capable of carrying out the responsibilities of an observer on board scallop vessels, pursuant to standards established by NMFS. Such standards are available from NMFS Web site specified in paragraph (g)(4) of this section and shall be provided to each approved observer service provider;

(iii)Have successfully completed all NMFS-required training and briefings for observers before deployment, pursuant to paragraph (i)(2) of this section; and

(iv)Hold a current Red Cross (or equivalent) cardiopulmonary resuscitation/first aid certification.

(4)*Probation and decertification.* NMFS has the authority to review observer certifications and issue observer certification probation and/or decertification as described in NMFS policy found on the Web site at: *http://www.nefsc.noaa.gov/femad/fsb/.*

(5)*Issuance of decertification.* Upon determination that decertification is warranted under paragraphs (i)(1) through

(3)of this section, NMFS shall issue a written decision to the observer containing the decertification and to the approved observer service provider via certified mail at their most current address provided to NMFS. The decision shall identify whether a certification is revoked and shall identify the specific reasons for the action taken. Decertification is effective immediately as of the date of issuance, unless the decertification official notes a compelling reason for maintaining certification for a specified period and under specified conditions. Decertification is the final decision of the Department of Commerce. 4. In § 648.14, paragraph (h)(17) is revised and (i)(15) is added to read as follows: § 648.14 Prohibitions.

(h)* * *

(17)Fail to comply with the notification requirements specified in § 648.11(g)(2) or refuse or fail to carry an observer after being requested to carry an observer by the Regional Administrator or Regional Administrator's designee.

(i)* * *

(15)Fail to comply with the notification requirements specified in § 648.11(g)(2) or refuse or fail to carry an observer after being requested to carry an observer by the Regional Administrator or Regional Administrator's designee. 5. In § 648.51, paragraphs (c)(4) and (e)(3)(iii) are added to read as follows: § 648.51 Gear and crew restrictions.

(c)* * *

(4)A certified at-sea observer is on board, as required by § 648.11(g).

(e)* * *

(3)* * *

(iii)A certified at-sea observer is on board, as required by § 648.11(g). 6. In § 648.55, paragraph (e)(31) is revised, and paragraph (e)(32) is added to read as follows: § 648.55 Framework adjustments to management measures.

(e)* * *

(31)Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations.

(32)Any other management measures currently included in the FMP. 7. In § 648.60, paragraph (a)(2) is revised to read as follows: § 648.60 Sea scallop area access program requirements.

(a)* * *

(2)Vessels participating in the Sea Scallop Access Area Program must comply with the trip declaration requirements specified in § 648.10(b)(4) and vessel notification requirements specified in § 648.11(g) for observer deployment. [FR Doc. 07-2928 Filed 6-8-07; 2:52 pm]

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