Rules and Regulations. Final rule

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BILLING CODE 4830-01-P DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 571 [Docket No. USA-2007-0017] RIN 0702-AA57 Recruiting and Enlistments AGENCY: Department of the Army, DoD. ACTION: Final rule. SUMMARY: The Department of the Army has revised its regulation that prescribes policies and procedures concerning recruiting and enlistment into the Regular Army and its Reserve Components. DATES: *Effective Date:* September 4, 2007. ADDRESSES: Deputy Chief of Staff, G-1, ATTN: DAPE-MPA, 300 Army Pentagon, Washington, DC 20310. FOR FURTHER INFORMATION CONTACT: Denise Mills,

(703)695-9262. SUPPLEMENTARY INFORMATION: A. Background The Administrative Procedure Act, as amended by the Freedom of Information Act, requires publication of certain policies and procedures and other information concerning the Department of the Army in the **Federal Register** . The policies and procedures covered by this part fall into that category. The Army has changed the publications and policies, thus requiring the rules in the **Federal Register** to be updated. The Department of the Army published a proposed rule in the **Federal Register** on May 10, 2007 (72 FR 26576) with the comment period ending on July 9, 2007. The Department of the Army received no comments on the proposed rule. B. Regulatory Flexibility Act The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. C. Unfunded Mandates Reform Act The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the rule does not include a mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or the private sector, of $100 million or more. D. National Environmental Policy Act The Department of the Army has determined that the National Environmental Policy Act does not apply because the rule does not have an adverse impact on the environment. E. Paperwork Reduction Act The Department of the Army has determined that the Paperwork Reduction Act does not apply because the rule does not involve collection of information from the public. F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights) The Department of the Army has determined that Executive Order 12630 does not apply because the rule does not impair private property rights. G. Executive Order 12866 (Regulatory Planning and Review) The Department of the Army has determined that, according to the criteria defined in Executive Order 12866, this rule is not a significant regulatory action. As such, the rule is not subject to Office of Management and Budget review under section 6(a)(3) of the Executive Order. H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks) The Department of the Army has determined that, according to the criteria defined in Executive Order 13045, this rule does not apply. I. Executive Order 13132 (Federalism) The Department of the Army has determined that, according to the criteria defined in Executive Order 13132, this rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Alphonsa D. Green, Chief, Recruiting Policy Branch. List of Subjects in 32 CFR Part 571 Military personnel. For reasons stated in the preamble, the Department of the Army revises 32 CFR part 571 to read as follows: PART 571—RECRUITING AND ENLISTMENTS Subpart A—Recruiting and Enlistment Eligibility Sec. 571.1 General. 571.2 Basic qualifications for enlistment. 571.3 Waiver enlistment criteria. 571.4 Periods of enlistment. 571.5 Enlistment options. Authority: 10 U.S.C. 504, 505, 509, 513, 520, 3262. Subpart A—Recruiting and Enlistment Eligibility § 571.1 General.

(a)*Purpose.* This part gives the qualifications for men and women enlisting in the Regular Army

(RA)or Reserve Components (RC). The procedures simplify and standardize the processing of recruited applicants. The applicant's ability to meet all requirements or exceptions will determine eligibility. This includes obtaining prescribed waivers.

(b)*References* —

(1)*Required Publications.*

(i)AR 601-210, Active and Reserve Components Enlistment Program. (Cited in §§ 571.2, 571.3, and 571.5).

(ii)AR 40-501, Standards of Medical Fitness. (Cited in §§ 571.2 and 571.3).

(iii)AR 600-9, The Army Weight Control Program. (Cited in §§ 571.2 and 571.3).

(2)*Related Publications.*

(i)DOD Directive 1304.26, Qualifications for Enlistment, Appointment, and Induction.

(ii)Army Retention Program.

(c)*Definitions.* The following definitions apply to this part:

(1)*Enlistment.* Voluntary contract (DD Form 4) for military service that creates military status as an enlisted member of the Regular Army or a Reserve Component. This includes enlistment of both non-prior service and prior service personnel.

(2)*Reenlistment.* The second or subsequent voluntary enrollment in the Regular Army or a Reserve Component as an enlisted member.

(3)*United States Army.* The Regular Army, Army of the United States (AUS), Army National Guard of the United States (ARNGUS), and the United States Army Reserve (USAR).

(4)*Regular Army (RA).* The Regular Army is the component of the Army that consists of persons whose continuous service on active duty in both peace and war is contemplated by law and of retired members of the Regular Army.

(5)*Prior Service (PS).* For persons enlisting in the RA, those who have 180 days or more of active duty in any component; or, for persons enlisting in a Reserve Component, those who have 180 days of active duty in any component of the armed forces and who have been awarded an MOS; or former members of an armed forces academy who did not graduate and who served 180 days or more.

(6)*Non-Prior Service (NPS).* Those persons who have never served in any component of the armed forces or who have served less than 180 days of active duty as a member of any component of the armed forces. Reserve Component applicants must not have been awarded an MOS; or have enlisted illegally while underage and been separated for a void enlistment; or be a former member of a service academy who did not graduate and who served fewer than 180 days; or have completed ROTC and served only Active Duty for Training as an officer.

(7)*Delayed Entry Program (DEP).* A program in which Soldiers may enlist and are assigned to a United States Army Reserve

(USAR)Control Group until they enlist in the Regular Army. The Commanding General, United States Army Recruiting Command (USAREC) is authorized by 10 U.S.C. 513 to organize and administer DEP. § 571.2 Basic qualifications for enlistment.

(a)Age requirements for non-prior service and prior service personnel are defined in AR 601-210.

(b)Applicants must meet citizenship requirements as defined in AR 601-210.

(c)Non-prior and prior service applicants must meet medical fitness standards prescribed in AR 40-501. Height and weight standards for non-prior service personnel AR 40-501 and in AR 600-9 for prior service personnel.

(d)Education standards, dependency criteria, and trainability requirements are prescribed in AR 601-210. § 571.3 Waiver enlistment criteria.

(a)*Waiver criteria* —

(1)All persons who process applicants for enlistment in the Army use the utmost care to procure qualified personnel. Eligibility of personnel for enlistment will be based upon their ability to meet all requirements, including procurement of prescribed waivers.

(2)Applicants applying for moral or medical waivers will document their waiver requests, as prescribed by AR 601-210 or AR 40-501.

(3)The approval authorities for various types of waiver requests are set forth in AR 601-210. Commanders at levels below the approval authority may disapprove waivers for applicants who do not meet prescribed standards and who do not substantiate a meritorious case.

(4)Unless otherwise stated in AR 601-210, waivers are valid for 6 months.

(b)Nonwaiver medical, moral, and administrative disqualifications are defined in AR 601-210. § 571.4 Periods of enlistment. Enlistments are authorized for periods of 2, 3, 4, 5, 6, 7, or 8 years. § 571.5 Enlistment options. Personnel who enlist in the Regular Army for 2 or more years may select certain initial assignments or classifications, provided they meet the criteria set forth in AR 601-210 and valid Army requirements exist for the assignments and skills. 1 [FR Doc. E7-15122 Filed 8-2-07; 8:45 am] BILLING CODE 3710-08-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. CGD13-07-025] RIN 1625-AA08 Special Local Regulations, Seattle Seafair, Lake Washington, WA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing temporary special local regulations

(SLR)for the Seattle Seafair, Lake Washington, Washington. These special local regulations limit the movement of non-participating vessels in the regulated race area and provide for a viewing area for spectator craft. This rule is needed to provide for the safety of life on navigable waters during Seafair. The rule adds four hours to the effective time period each day of enforcement of the existing SLR to accommodate the addition of a fireworks display in this year's Seafair and to promote safety for spectators and participants through consistency in enforcement periods. DATES: This rule is effective from 8 p.m. until 11:59 p.m. on August 2-5, 2007 unless sooner cancelled by the Captain of the Port. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD13-07-025 and are available for inspection or copying at the Waterways Management Division, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA 98134, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Steve Kee, c/o Captain of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 98134,

(206)217-6002. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication in the **Federal Register** . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of commercial and recreational vessels in the vicinity of the events on the date and times this rule will be in effect. If normal notice and comment procedures were followed, this rule would not become effective until after the date of the event. On July 2, 2001, the Coast Guard published a final rule (66 FR 34822) modifying the regulations in 33 CFR 100.1301 for the safe execution of the Seattle Seafair Unlimited Hydroplane races on the waters of Lake Washington. This special local regulation

(SLR)provides for a regulated area to protect spectators while providing unobstructed vessel traffic lanes to ensure timely arrival of emergency response craft. Movements are regulated for all vessels in the area as described under 33 CFR 100.1301 or unless otherwise regulated by the COTP or his designee. This temporary final rule is required to increase the length of time affected by the regulation. Background and Purpose For more than 50 years Seafair on Lake Washington has been a Pacific Northwest tradition, entertaining millions of people over that period. However, this entertaining event involves risks to both spectators and participants. During Seafair, the marine congestion associated with the number of boats, swimmers, and spectators on shore challenges even the most experienced seaman. These conditions necessitate the maintenance of a regulated area to protect spectators while providing unobstructed vessel traffic lanes to ensure timely arrival of emergency response craft. The Coast Guard is establishing this regulation to protect vessels and persons from the hazards associated with the fallout of burning embers that will be generated by the fireworks display in this year's Seafair and to promote safety for spectators and participants through consistency in enforcement periods. The regulated area is also intended to protect boaters from the hazards associated with excessive vessel congestion associated with Seafair's activities. Discussion of Rule This rule will control the movement of all vessels in a regulated area on Lake Washington as indicated in section 2 of this Temporary Final Rule. This rule adds four hours to the effective time period each day of enforcement of the existing SLR to accommodate the addition of a fireworks display for this year's Seafair and to promote safety for spectators and participants through consistency in enforcement periods. The Coast Guard, through this action, intends to promote the safety of personnel and vessels in the area. The regulated areas will be enforced by the U.S. Coast Guard. The Captain of the Port may be assisted in the enforcement of the regulations by other federal, state, or local agencies. 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. This change slightly modifies existing safety regulations and should not effect the economic activities of any Seafair participant or spectator. The regulation is established for the benefit and safety of the recreational boating public, and any negative recreational boating impact is offset by the benefits of allowing the fireworks event to occur. This rule is effective from 8 p.m. until 11:59 p.m. on August 2-5, 2007. For the above reasons, the Coast Guard does not anticipate any significant economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard 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. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this portion of Lake Washington during the time this regulation is in effect. The regulations will not have a significant economic impact due to its short duration and small area. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this temporary 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 want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. 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 by the Coast Guard. Collection of Information This 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 rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate. Taking of Private Property This 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 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 concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This Temporary Final Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D, 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 not 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 part 100 of Title 33, Code of Federal Regulations, as follows: PART 100—MARINE EVENTS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. From 8 p.m. through 11:59 p.m. on August 2-5, 2007, a temporary § 100.T13-020 is added to read as follows: § 100.T13-020 Special Local Regulations, Seattle Seafair, Lake Washington, WA.

(a)This section is in effect from 8 p.m. until 11:59 p.m. on August 2-5, 2007 unless sooner cancelled by the Captain of the Port.

(b)The area where the Coast Guard will restrict general navigation by this regulation during the hours it is in effect is: The waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.

(c)The area described in paragraph

(b)of this section has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).

(d)The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Auxiliary Coast Guard vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the period this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.

(e)Only authorized vessels may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by Coast Guard Officers or Petty Officers.

(f)During the times in which the regulation is in effect, swimming, wading, or otherwise entering the water in Zone I by any person is prohibited.

(g)During the times in which the regulation is in effect, any person swimming or otherwise entering the water in Zone II shall remain within ten

(10)feet of a vessel.

(h)During the times this regulation is in effect, rafting to a log boom will be limited to groups of three vessels.

(i)During the times this regulation is in effect, up to six

(6)vessels may raft together in Zone II if none of the vessels are secured to a log boom.

(j)During the times this regulation is in effect, only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.

(k)Vessels permitted to proceed through either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven

(07)miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.

(l)Upon completion of the daily activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven

(07)miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.

(m)A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard may be assisted by other federal, state and local law enforcement agencies, as well as official Seafair event craft. Dated: July 23, 2007. R.R. Houck, Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District. [FR Doc. E7-15141 Filed 8-2-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 3 [EPA-HQ-OEI-2003-0001; FRL-8449-8] RIN 2025-AA07 Extension of Cross-Media Electronic Reporting Rule Deadline for Authorized Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to amend the Final Cross-Media Electronic Reporting Rule (CROMERR) deadline for authorized programs (states, tribes, or local governments) with existing electronic document receiving systems to submit an application for EPA approval to revise or modify their authorized programs. This action will extend the current October 13, 2007, deadline until October 13, 2008. DATES: This rule is effective on October 2, 2007 without further notice, unless EPA receives relevant adverse comment by September 4, 2007. If EPA receives relevant adverse comment, the Agency will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2003-0001, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail:* *oei.docket@epa.gov* . • *Mail:* CROMERR Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Hand Delivery: EPA Docket Room, EPA West, Room 3334, 1301 Constitution Avenue, Washington, DC, 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OEI-2003-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the CROMERR 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 CROMERR Docket is

(202)566-1752. FOR FURTHER INFORMATION CONTACT: Evi Huffer, Office of Environmental Information (2823T), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;

(202)566-1697; *huffer.evi@epa.gov* , or David Schwarz, Office of Environmental Information (2823T), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;

(202)566-1704; *chwarz.david@epa.gov* . SUPPLEMENTARY INFORMATION: I. What does this Rule do? This rule provides temporary regulatory relief to states, tribes, and local governments with “authorized programs” as defined in 40 Code of Federal Regulations

(CFR)§ 3.3. Any such authorized program that operates an “existing electronic document receiving system” as defined in 40 CFR Section 3.3 will have an additional year to submit an application to revise or modify its authorized program to meet the requirements of 40 CFR part 3. Specifically, this direct final rule amends 40 CFR 3.1000(a)(3) by extending the October 13, 2007, deadline to October 13, 2008. II. Why is EPA Using a Direct Final Rule? EPA is publishing this rule without a prior proposed rule because the Agency views this as a noncontroversial action and anticipates no adverse comment. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements beyond those imposed by the underlying final rule (70 FR 59848, October 13, 2007). Based on what EPA has learned in our consultations with states, the Agency does not believe that extending the current deadline by one year for authorized programs to submit their applications to EPA for approval of their existing electronic reporting systems will negatively impact compliance with CROMERR and will benefit both authorized programs and EPA. Additionally, in the “Proposed Rules” section of today's **Federal Register** , EPA is publishing a separate proposed rule to consider adoption of the time extension contained in this direct final rule should the Agency receive relevant adverse comments regarding this direct final rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this direct final rule or the proposed rule listed elsewhere in today's **Federal Register** must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives relevant adverse comment, the Agency will publish a timely withdrawal in the **Federal Register** informing the public that this direct final rule will not take effect. EPA will address all public comments in any subsequent final rule based on the proposed rule. III. Does This Action Apply to Me? This action will affect states, tribes, and local governments that have an authorized program as defined in 40 CFR 3.3 and also have an existing electronic document receiving system, as defined in 40 CFR 3.3. For purposes of this rulemaking, the term “state” includes the District of Columbia and the United States territories, as specified in the applicable statutes. That is, the term “state” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of Northern Marina Islands, and the Trust Territory of the Pacific Islands, depending on the statute. Category Examples of affected entities Local government Publicly owned treatment works, owners and operators of treatment works treating domestic sewage, local and regional air boards, local and regional waste management authorities, and municipal and other drinking water authorities. Tribe and State governments States, tribes or territories that administer any federal environmental programs delegated, authorized, or approved by EPA under Title 40 of the CFR. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. IV. What Should I Consider as I Prepare My Comments for EPA? *A. Submitting CBI.* Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. *B. Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. V. Statutory and Executive Order Reviews A. *Executive Order 12866: Regulatory Planning and Review* This action is not a “significant regulatory action” under the terms of Executive Order

(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. This direct final rule merely extends the regulatory schedule for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems. There are no costs associated with this rule. B. *Paperwork Reduction Act* This action does not impose any information collection burden. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. However, the Office of Management and Budget

(OMB)has previously approved the information collection requirements contained in the existing regulations (40 CFR part 3) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2025-0003, EPA ICR number 2002.03. A copy of the OMB approved Information Collection Request

(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling

(202)566-1672. The ICR is also available electronically in *http://www.regulations.gov* . 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 prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, a small entity is defined as:

(1)A small business that meets the definition for small businesses based on SBA size standards 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 (Under the RFA definition, States and tribal governments are not considered small governmental jurisdictions.); 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 possibility of economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this direct final rule are small governmental jurisdictions. In determining whether a rule has a significant economic impact on a substantial number of small 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 rule on small entities.” 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. This direct final rule merely extends the current regulatory schedule for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems. EPA has therefore concluded that today's final rule will relieve regulatory burden for all affected small entities. D. *Unfunded Mandates Reform Act* Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, tribe, and local governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to state, tribe, and local governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribes, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, tribe, or local governments or the private sector. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. EPA has determined that this rule does not contain a federal mandate that may result in expenditures of $100 million or more for states, tribes, and local governments, in the aggregate, or the private sector in any one year. Thus, today's action is not subject to the requirements in Sections 202 and 205 of UMRA. EPA has also determined that this action contains no regulatory requirements that might significantly or uniquely affect small governments, as described in the UMRA, and thus this rule is not subject to the requirements in Section 203 of UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” EPA has concluded that this final rule does not have tribal implications. It will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This action merely extends the current due date for submitting applications under CROMERR for authorized programs with existing electronic document. G. Executive Order 13045: Children's Health Protection Executive Order 13045, 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. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it is not an economically significant action as defined by Executive Order 12866 and it does not establish an environmental standard intended to mitigate health or safety risks. This action merely extends the current regulatory schedule for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems, and imposes no additional requirements. H. Executive Order 13211: Energy Effects 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(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) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when the Agency decides not to use available and applicable voluntary consensus standards. Today's action does not involve technical standards. EPA's compliance with 12(d) of the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113, 12(d) (15 U.S.C. 272 note)) has been addressed in the preamble of the underlying final rule (70 FR 59848, October 13, 2007). J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 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. This direct final rule merely extends the current regulatory schedule for submitting applications under CROMERR for authorized programs with existing electronic document receiving systems. 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 become effective on October 2, 2007. List of Subjects in 40 CFR Part 3 Environmental protection, Conflict of interests, Electronic records, Electronic reporting requirements, Electronic reports, Intergovernmental relations. Dated: July 26, 2007. Stephen L. Johnson, Administrator. Therefore, title 40 chapter I of the Code of Federal Regulations is amended as follows: PART 3—CROSS-MEDIA ELECTRONIC REPORTING 1. The authority citation for part 3 continues to read as follows: Authority: 7 U.S.C. 136 to 136y; 15 U.S.C. 2601 to 2692; 33 U.S.C. 1251 to 1387; 33 U.S.C. 1401 to 1445; 33 U.S.C. 2701 to 2761; 42 U.S.C. 300f to 300j-26; 42 U.S.C. 4852d; 42 U.S.C. 6901-6992k; 42 U.S.C. 7401 to 7671q; 42 U.S.C. 9601 to 9675; 42 U.S.C. 11001 to 11050; 15 U.S.C. 7001; 44 U.S.C. 3504 to 3506. Subpart D—Electronic Reporting Under EPA-Authorized State, Tribe, and Local Programs 2. Section 3.1000 is amended by revising paragraph (a)(3) to read as follows: § 3.1000 How does a state, tribe, or local government revise or modify its authorized program to allow electronic reporting?

(a)* * *

(3)*Programs already receiving electronic documents under an authorized program:* A state, tribe, or local government with an existing electronic document receiving system for an authorized program must submit an application to revise or modify such authorized program in compliance with paragraph (a)(1) of this section no later than October 13, 2008. On a case-by-case basis, this deadline may be extended by the Administrator, upon request of the state, tribe, or local government, where the Administrator determines that the state, tribe, or local government needs additional time to make legislative or regulatory changes in order to meet the requirements of this part. [FR Doc. E7-15013 Filed 8-2-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0541; FRL-8449-6] Approval and Promulgation of Air Quality Implementation Plans; Michigan AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving a request submitted by the Michigan Department of Environmental Management

(MDEQ)on March 31, 2006, to revise the Michigan State Implementation Plan

(SIP)to amend R336.1627 and R336.2005, and adopt R336.2004. These changes take place within Part 6, Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions; Delivery Vessels; Vapor Collection Systems; and Part 10, Intermittent Testing and Sampling, respectively. DATES: This rule is effective on October 2, 2007, unless EPA receives adverse written comments by September 4, 2007. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0541 by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *mooney.john@epa.gov.* 3. *Fax:*

(312)886-5824. 4. *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-0541. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://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 legal holidays. We recommend that you telephone Jonathan Nichols, Life Scientist, at

(312)353-7942 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Jonathan Nichols, Life Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)353-7942, *nichols.jonathan@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. Background A. When did the State submit the requested rule revisions to EPA? B. Did Michigan hold public hearings for each of these rule revisions? II. What are the revisions that the State requests be incorporated into the SIP? A. Part 6—Emission Limitations for Existing Sources B. Part 10—Changes to Intermittent Testing and Sampling III. What is EPA's evaluation of the rule? IV. Statutory and Executive Order Reviews I. Background A. When did the State submit the requested rule revisions to EPA? MDEQ submitted the requested rule revisions on March 31, 2006. B. Did Michigan hold public hearings for each of these rule revisions? MDEQ held a public hearing for the rule revisions on October 31, 2005, and did not receive any adverse comments. II. What are the revisions that the State requests be incorporated into the SIP? The State has requested the following revisions: Changes to Part 6, Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions; and changes to Part 10, Intermittent Testing and Sampling. The revisions are described in more detail below. A. Part 6—Emission Limitations for Existing Sources MDEQ is requesting the amendment of Part 6, R336.1627, in order to replace the MDEQ Vapor Tightness Test

(VTT)method with EPA Method 27. The MDEQ VTT method is not an acceptable substitution for the leak test required by the U.S. Department of Transportation (U.S. DOT). Therefore, tank trucks must undergo VTT using both state and federal test methods. As written, EPA Method 27 is more stringent than the leak test required by MDEQ, satisfying both U.S. DOT and MDEQ standards. In addition, MDEQ is requesting an amendment to test submittal requirements in order to provide consistency between U.S DOT and MDEQ requirements with regard to the time period within which tank trucks must be tested. The amendment would require delivery vessels to perform the VTT within one year of the date of the previous test, rather than the existing, narrow time period of April 1 to June 30. Under the amendment, the results of the test would be submitted to MDEQ within 30 days of test completion. Upon successful completion of the required testing, the vessel would be deemed provisionally certified providing the department does not invalidate the certification by issuing disapproval within 45 days of receipt of the results. B. Part 10—Changes to Intermittent Testing and Sampling MDEQ is requesting the amendment of Part 10, Intermittent Testing and Sampling, to incorporate Method 27 by reference at R336.2004, and to amend R336.2005, the reference test method used to detect gasoline vapor leaks by a combustible gas detector. The amendment to R336.2005 removes the VTT component, but leaves the reference test method to detect gasoline vapor leaks by a combustible gas detector intact. Method 27, which is more stringent than the existing state VTT method, is incorporated in R336.2004. III. What is EPA's evaluation of the rule? We are approving revisions to the Michigan SIP in two areas:

(1)To amend R336.1627 of Part 6, Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions; Delivery Vessels; Vapor Collection Systems, by replacing the MDEQ VTT method with EPA Method 27, and to adopt the U.S. DOT annual VTT requirement and test submittal requirements; and,

(2)to amend Part 10, Intermittent Testing and Sampling, through incorporating Method 27 by reference at R336.2004, and to amend R336.2005, the reference test method used to detect gasoline vapor leaks by a combustible gas detector. The main revisions to R336.1627 are the replacement of its VTT test with Method 27 and the requirement to test the delivery vessel within one year of the previous test. Both of these revisions are consistent with EPA guidance. In addition, the following factors add to the effectiveness of this rule:

(1)the testing stations are certified by the Michigan Department of Transportation and the tests that are performed at these stations are spot checked by the MDEQ;

(2)the MDEQ has a history of reviewing all test results, and rejects those that are inadequate, within 30 days; and,

(3)the Michigan gasoline terminals do not accept any tank trucks that are not certified to be in compliance with R336.1627, and are prohibited from accepting uncertified trucks due to the emission limitations found in 40 CFR part 60, subpart XX, which cover the same sources through limits on loading racks at bulk liquid gasoline terminals constructed or modified after December 17, 1980, that deliver liquid product into gasoline tank trucks. These regulations require that a gasoline terminal owner or operator not reload gasoline delivery vessels without documentation indicating that a VTT has been performed. Michigan rule R336.1627 provides that the vessel is deemed to have passed the gasoline vapor leak detection test if Michigan does not notify the owner or operator of the vessel of the vessel's failure to pass the test within 45 days. EPA strongly discourages the use of default approvals. However, we find this rule to be approvable due to the special circumstances described above and also because recertification is required within a year. Nevertheless, should Michigan revise its rules to remove the safeguards described above, EPA will require the State to revise this section of the SIP. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this **Federal Register** publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 2, 2007 without further notice unless we receive relevant adverse written comments by September 4, 2007. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective October 2, 2007. IV. 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 That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy 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 (59 FR 22951, 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 approves a state rule implementing a Federal Standard. 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 October 2, 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: July 24, 2007. Walter W. Kovalick Jr., Acting Regional Administrator, Region 5. 40 CFR part 52 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 X—Michigan 2. In § 52.1170(c) the table is amended as follows: a. Under Part 6 by revising entry “R336.1627”. b. Under Part 10 by revising entries “R336.2004” and “R336.2005”. § 52.1170 Identification of plan.

(c)* * * EPA-Approved Michigan Regulations Michigan citation Title State effective date EPA approval date Comments * * * * * * * Part 6. Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions * * * * * * * R336.1627 Delivery Vessels; Vapor Collection Systems 2/22/06 8/3/07, [Insert page number where the document begins] * * * * * * * Part 10. Intermittent Testing and Sampling * * * * * * * R336.2004 Appendix A; reference test methods; adoption of federal reference test methods 2/22/06 8/3/07, [Insert page number where the document begins] R336.2005 Reference test methods for state-requested tests of delivery vessels 2/22/06 8/3/07, [Insert page number where the document begins] * * * * * * * [FR Doc. E7-15011 Filed 8-2-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R04-OAR-2006-0362-200702; FRL-8449-5] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Kentucky: Redesignation of Boyd County, Kentucky Portion of the Huntington-Ashland 8-Hour Ozone Nonattainment Area to Attainment for Ozone AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is taking final action to approve a request, submitted on September 29, 2006, from the Commonwealth of Kentucky (Kentucky), through the Kentucky Division for Air Quality (KDAQ), to redesignate the Kentucky portion of the bi-state Huntington-Ashland 8-hour ozone nonattainment area to attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The Kentucky portion of the bi-state Huntington-Ashland 8-hour ozone nonattainment area (hereafter referred to as “Boyd County”) is comprised of one county in Kentucky (Boyd County) and two counties in West Virginia (Cabell and Wayne Counties). EPA's approval of Kentucky's redesignation request is based upon the determination that Kentucky has demonstrated that Boyd County has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA), including the determination that the entire (including both the Kentucky and West Virginia counties) bi-state Huntington-Ashland 8-hour ozone nonattainment area has attained the 8-hour ozone standard. Additionally, EPA is approving a revision to the Kentucky State Implementation Plan

(SIP)including the 8-hour ozone maintenance plan for Boyd County that contains the new 2018 motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO X ) and volatile organic compounds (VOCs). Through this action, EPA is also finding the 2018 MVEBs adequate for the purposes of transportation conformity. On May 17, 2006, the State of West Virginia submitted a redesignation request and maintenance plan through a separate action. The final rulemaking approving the West Virginia submittal was published in the **Federal Register** on September 15, 2006. MVEBs for Cabell and Wayne Counties in West Virginia were approved through EPA's September 15, 2006, action. DATES: *Effective Date:* This rule will be effective September 4, 2007. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2006-0362. 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 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 Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Heidi LeSane, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. LeSane can be reached via telephone number at

(404)562-9074 or electronic mail at *LeSane.Heidi@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What is the Background for the Actions? II. What Actions are EPA Taking? III. Why Are We Taking These Actions? IV. What Are the Effects of These Actions? V. Final Action VI. Statutory and Executive Order Reviews I. What is the Background for the Actions? On September 29, 2006, Kentucky, through the KDAQ, submitted a request to redesignate Boyd County to attainment for the 8-hour ozone standard, and for EPA approval of the Kentucky SIP revision containing a maintenance plan for Boyd County. In an action published on May 11, 2007 (72 FR 26759), EPA proposed to approve the redesignation of Boyd County to attainment. EPA also proposed approval of Kentucky's plan for maintaining the 8-hour NAAQS as a SIP revision, and proposed to approve the 2018 state 1 MVEBs for Boyd County that were contained in the maintenance plan. EPA received no comments on the May 11, 2007, proposal. Today's rule is EPA's final action following the May 11, 2007, proposed rule. 1 The term “state” with regard to MVEBs refers to the portion of the area, in a multi-state area, for which the MVEBs apply. In this case, the term “state” indicates that the MVEBs cover Boyd County, and also indicates to transportation conformity implementers in this area that there are separate MVEBs for the West Virginia portion of this area. EPA's Companion Guidance for the July 1, 2004, Final Transportation Conformity Rule: Conformity Implementation in Multi-Jurisdictional Nonattainment and Maintenance Areas for Existing and New Air Quality Standards explains more about the possible geographical extent of an MVEB, how these geographical areas are defined, and how transportation conformity is implemented in these different geographical areas. For the purposes of today's final action, the term “state MVEBs” refers to the Boyd County MVEBs being approved as part of the Boyd County maintenance plan. Today, EPA is also providing information on the status of the Agency's transportation conformity adequacy determination for the new state MVEBs for the year 2018 that are contained in the maintenance plan for Boyd County. The maintenance plan establishes the following state MVEBs for Boyd County. Boyd County 2018 MVEBs [Tons per day] 2018 VOCs 1.18 NO X 1.30 EPA's adequacy public comment period on these budgets (as contained in Kentucky's submittal) began on June 21, 2006, and closed on July 23, 2006. No comments were received during EPA's adequacy public comment period. Through this **Federal Register** notice, EPA is finding the 2018 state MVEBs, as contained in Kentucky's submittal, adequate. These MVEBs meet the adequacy criteria contained in the Transportation Conformity Rule. The new state MVEBs must be used for future transportation conformity determinations. Various aspects of EPA's Phase 1 8-hour ozone implementation rule were challenged in court and on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit Court) vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA,* 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the DC Circuit Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the Rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS, remain effective. The June 8th decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8th decision affirmed the December 22, 2006, decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. The June 8th decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour MVEBs until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. For the reasons set forth in the proposal action for Boyd County, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of Boyd County to attainment. Even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. With respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8th decision clarified that for those areas with 1-hour MVEBs in their 1-hour maintenance plans (in this instance, Boyd County), anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. II. What Actions are EPA Taking? EPA is taking final action to approve Kentucky's redesignation request and to change the legal designation of Boyd County from nonattainment to attainment for the 8-hour ozone NAAQS. The entire bi-state Huntington-Ashland 8-hour ozone nonattainment area is comprised of one county in Kentucky (Boyd County) and two West Virginia Counties (Cabell and Wayne Counties). This final action addresses only Boyd County. EPA has already taken action on the redesignation request and maintenance plan for the West Virginia portion of this area in a separate action. EPA is also approving Kentucky's 8-hour ozone maintenance plan for Boyd County (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to help keep Boyd County in attainment for the 8-hour ozone NAAQS through 2018. These approval actions are based on EPA's determination that Kentucky has demonstrated that Boyd County has met the criteria for redesignation to attainment specified in the CAA, including a demonstration that the entire bi-state Huntington-Ashland Area has attained the 8-hour ozone standard. EPA's analyses of Kentucky's 8-hour ozone redesignation request and maintenance plan are described in detail in the proposed rule published May 11, 2007 (72 FR 26759). Consistent with the CAA, the maintenance plan that EPA is approving today also includes 2018 state MVEBs for NO X and VOCs for Boyd County. In this action, EPA is approving these 2018 MVEBs. For regional emission analysis years that involve years prior to 2018, the applicable budgets, for the purpose of conducting transportation conformity analyses, are the 1-hour ozone maintenance plan state MVEBs. For regional emission analysis years that involve the year 2018 and beyond, the applicable budgets, for the purpose of conducting transportation conformity analyses, are the new 2018 MVEBs. EPA is finding adequate and approving the Boyd County MVEBs for NO X and VOCs in this action. MVEBs for Cabell and Wayne Counties in West Virginia were found adequate and approved through a separate action. III. Why Are We Taking These Actions? EPA has determined that the entire bi-state Huntington-Ashland Area has attained the 8-hour ozone standard and has also determined that Kentucky has demonstrated that all other criteria for the redesignation of Boyd County from nonattainment to attainment of the 8-hour ozone NAAQS have been met. See, section 107(d)(3)(E) of the CAA. EPA is also taking final action to approve the maintenance plan for Boyd County as meeting the requirements of sections 175A and 107(d) of the CAA. Furthermore, EPA is finding adequate and approving the new 2018 state MVEBs contained in Kentucky's maintenance plan because these MVEBs are consistent with maintenance for the entire bi-state Huntington-Ashland Area. In the May 11, 2007, proposal to redesignate Boyd County, EPA described the applicable criteria for redesignation to attainment and its analysis of how those criteria have been met. The rationale for EPA's findings and actions is set forth in the proposed rulemaking and summarized in this rulemaking. IV. What Are the Effects of These Actions? Approval of the redesignation request changes the official designation of Boyd County, Kentucky for the 8-hour ozone NAAQS, found at 40 CFR Part 81. The approval also incorporates into the Kentucky SIP a plan for maintaining the 8-hour ozone NAAQS in Boyd County through 2018. The maintenance plan includes contingency measures to remedy future violations of the 8-hour ozone NAAQS, and establishes state MVEBs for the year 2018 for Boyd County. In a separate action, EPA has already approved 8-hour ozone MVEBs for the West Virginia portions (Cabell and Wayne Counties) of this area. V. Final Action After evaluating Kentucky's redesignation request, EPA is taking final action to approve the redesignation and change the legal designation of Boyd County, Kentucky from nonattainment to attainment for the 8-hour ozone NAAQS. Through this action, EPA is also approving into the Kentucky SIP the 8-hour ozone maintenance plan for Boyd County, which includes the new state 2018 MVEBs of 1.18 tpd for VOCs, and 1.30 tpd for NO X . Within 24 months from the publication date for this final rule, the Kentucky transportation partners will need to demonstrate conformity to these new MVEBs pursuant to 40 CFR 93.104(e) as effectively amended by section 172(c)(2)(E) of the CAA as added by the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), which was signed into law on August 10, 2005. EPA has taken action on the West Virginia SIP through a separate rulemaking, and the transportation partners are currently using the West Virginia 8-hour ozone MVEBs. VI. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely 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.* ). 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). 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). 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 affects the status of a geographical area, does not impose any new requirements on sources or allow a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant and because the Agency does not have reason to believe that the rule concerns an environmental health risk or safety risk that may disproportionately affect children. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the Commonwealth 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 CAA. 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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 2, 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) of the CAA.) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: July 25, 2007. J.I. Palmer, Jr., Regional Administrator, Region 4. 40 CFR part 52 and 81 are 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 S—Kentucky 2. Section 52.920 is amended by adding a new entry at the end of the table for “Huntington-Ashland 8-hour Ozone Maintenance Plan” to read as follows: § 52.920 Identification of plan.

(e)* * * EPA-Approved Kentucky Non-regulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date/effective date EPA approval date Explanation * * * * * * * Huntington-Ashland 8-hour Ozone Maintenance Plan Boyd County 09/29/06 08/03/07 [Insert first page of publication] PART 81—[AMENDED] 3. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 4. In § 81.318, the table entitled “Kentucky-Ozone (8-Hour Standard)” is amended by revising the entry for “Huntington-Ashland, WV-KY:”, “Boyd County” to read as follows: § 81.318 Kentucky. Kentucky-Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Category/classification Date 1 Type * * * * * * * Huntington-Ashland, WV-KY: Boyd County 09/04/07 Attainment * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-14982 Filed 8-2-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 222 and 223 [Docket No. 070712318-7318-01; I.D. 110306A] RIN 0648-AU81 Sea Turtle Conservation; Observer Requirement for Fisheries AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: Pursuant to its authority under the Endangered Species Act of 1973 (ESA), NMFS issues this final regulation to require fishing vessels subject to the jurisdiction of the United States that are identified through the annual determination process specified in the rule to take observers upon NMFS' request. The purpose of this measure is to learn more about sea turtle interactions with fishing operations, to evaluate existing measures to reduce sea turtle takes, and to determine whether additional measures to address prohibited sea turtle takes may be necessary. NMFS and/or interested cooperating entities will pay the direct costs of the observer. Through this rule, NMFS also extends the number of days from 30 to 180 (with a possible 60-day extension) that the agency may place observers in response to a determination by the Assistant Administrator that the unauthorized take of sea turtles may be likely to jeopardize their continued existence under existing regulations. This extension will help the agency address immediate observer needs in response to an emergency sea turtle-related event. DATES: Effective September 4, 2007. ADDRESSES: Requests for copies of the Environmental Assessment and Final Regulatory Impact Review (EA/RIR) prepared for this final rule should be addressed to the Chief, Marine Mammal and Turtle Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Tanya Dobrzynski (ph. 301-713-2322, fax 301-427-2522, email *Tanya.Dobrzynski@noaa.gov* or Therese Conant (ph. 301-713-2322, fax 301-427-2522, email *Therese.Conant@noaa.gov* . SUPPLEMENTARY INFORMATION: Purpose Under the ESA, 16 U.S.C. 1531 *et seq.* , NMFS has the responsibility to implement programs to conserve marine life listed as endangered or threatened. All sea turtles that are found in U.S. waters are listed as either endangered or threatened under the ESA. The Kemp's ridley ( *Lepidochelys kempii* ), leatherback ( *Dermochelys coriacea* ), and hawksbill ( *Eretmochelys imbricata* ) sea turtles are listed as endangered. Loggerhead ( *Caretta caretta* ), green ( *Chelonia mydas* ), and olive ridley ( *Lepidochelys olivacea* ) sea turtles are listed as threatened, except for breeding colony populations of green sea turtles in Florida and on the Pacific coast of Mexico and breeding colony populations of olive ridleys on the Pacific coast of Mexico, which are listed as endangered. While some sea turtle populations have shown signs of recovery, many populations continue to decline. Incidental take, or bycatch, in fishing gear is one of the main sources of sea turtle injury and mortality nationwide. Section 9 of the ESA prohibits the take (including harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting or attempting to engage in any such conduct), including incidental take, of endangered sea turtles. Pursuant to section 4(d) of the ESA, NMFS has issued regulations extending the prohibition of take, with exceptions, to threatened sea turtles (50 CFR 223.205 and 223.206). Section 11 of the ESA authorizes the issuance of regulations to enforce the prohibitions against take. NMFS may grant exceptions to the take prohibitions with an incidental take statement or an incidental take permit issued pursuant to section 7 or 10, respectively, of the ESA. To do so, NMFS must determine that the activity that will result in incidental take is not likely to jeopardize the continued existence of the affected listed species. In some cases, NMFS has been able to make this determination because the fishery is conducted with a modified gear or modified fishing practice that NMFS has been able to evaluate. However, for some Federal fisheries and most state fisheries, NMFS has not granted an exception primarily because we lack information about fishery-turtle interactions. Therefore, any incidental take of sea turtles in those fisheries is unlawful as it has not been exempted from the ESA prohibition on take. The most effective way for NMFS to learn more about sea turtle-fishery interactions is to place observers aboard fishing vessels. NMFS issues this regulation to establish procedures through which each year NMFS will identify, pursuant to specified criteria and after notice and opportunity for comment, those fisheries in which the agency intends to place observers. NMFS and/or interested cooperating entities will pay the direct costs for observers. These include observer salary and insurance costs. NMFS may also evaluate other potential direct costs, should they arise. Once selected, a fishery will be eligible to be observed for five years without further action by NMFS. This will enable NMFS to develop an appropriate sampling protocol to investigate whether, how, when, where, and under what conditions incidental takes are occurring; to evaluate whether existing measures are minimizing or preventing interactions; and to determine whether additional measures are needed to implement ESA take prohibitions and conserve turtles. Other Procedures for Observer Placement Prior to this final rule, NMFS established a regulatory procedure to place observers on vessels contingent upon a determination by the NMFS Assistant Administrator that the unauthorized take of sea turtles may be likely to jeopardize their continued existence (50 CFR 223.206(d)(4)). In that regulation, NMFS limited observer coverage requirements within a fishery to 30 days, with the possibility of renewal for additional periods of 30 days each. NMFS has used this procedure to address immediate observer needs, such as when fishery activity and relatively high sea turtle strandings have occurred simultaneously in a particular area. However, these temporary observer requirements are designed to respond to acute problems, and not to implement monitoring programs that yield statistically rigorous information, which is one of the purposes of this rule. Further, because 30 days does not always provide the opportunity to investigate the cause of an event, such as elevated sea turtle strandings, and renewing the measure for additional 30-day periods can be time-consuming and result in lost opportunities to monitor a critical event, through this rule, NMFS is extending the number of days the observer coverage requirements under 50 CFR 223.206(d)(4) may remain effective from 30 to 180 days, with a possible 60-day extension. The combined 240 days is consistent with the emergency regulatory provision in section 4(b)(7) of the ESA. As a condition of exempting incidental take from the ESA take prohibition in certain fisheries, NMFS has also implemented observer coverage or monitoring requirements under the authority of the ESA on a fishery-by-fishery basis, such as in the shrimp trawl, summer flounder trawl, Virginia pound net, and other fisheries. These requirements were implemented only after data from strandings, temporary observer coverage, or other sources indicated that prohibited sea turtle takes were occurring in those fisheries. NMFS has also placed observers on vessels in federally-managed fisheries under the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act, as amended in 1996 and 2006 (Magnuson-Stevens Act), and the Marine Mammal Protection Act, as amended in 1994 (MMPA), to document fish bycatch and incidental mortality and serious injury of marine mammals, respectively. The Magnuson-Stevens Act authorizes NMFS to require observers on fisheries managed under a Federal fishery management plan, while the MMPA allows NMFS to require observers in both Federal and non-federal commercial fisheries depending on the level of interaction between fisheries and marine mammals. Secondary to collecting information on fish and marine mammal bycatch through placement of observers on fishing vessels via these statutes, NMFS has also collected data on sea turtle interactions in fisheries. Nonetheless, actions taken under the MMPA and Magnuson-Stevens Act do not provide sea turtle bycatch information on a sufficiently comprehensive basis. The Magnuson-Stevens Act only provides NMFS authority to require observers on vessels in fisheries managed under a Federal fishery management plan (16 U.S.C. 1853(b)(8)). Thus, the authority primarily covers fisheries operating in Federal waters, and not state fisheries where sea turtle interactions also occur. The MMPA allows NMFS to require observers on commercial fisheries that have been listed on the annual List of Fisheries as Category I (where incidental mortality and serious injury of marine mammals is considered “frequent”) and Category II (where incidental mortality and serious injury of marine mammals is considered “occasional”), but not Category III (where there is a remote likelihood of or no known incidental mortality and serious injury of marine mammals) (16 U.S.C. 1387), under which the majority of fisheries are listed. Furthermore, the List of Fisheries applies to commercial fisheries, and observers are not placed on recreational vessels, which in some cases use identical gear to commercial fishermen that is known to incidentally take sea turtles. Given that some state, recreational, and Category III fisheries may cause incidental take of sea turtles, neither the Magnuson-Stevens Act nor the MMPA provides broad enough authority to monitor fisheries that may incidentally take sea turtles. Additionally, monitoring programs established under the Magnuson-Stevens Act or MMPA are designed primarily to optimize observation of fish or marine mammal bycatch, respectively, and may only collect sea turtle bycatch information secondarily. This is not optimal since the sampling regime for other species may not adequately cover times and areas where sea turtle interactions are most likely to occur. Thus, to obtain the most representative data on sea turtle takes in various fisheries, NMFS needs to design sampling programs based on sea turtle distribution and abundance and directed toward those gear types and fisheries that are a priority concern for sea turtle recovery. NMFS has also relied on using voluntary observer coverage to obtain data in several non-federally managed fisheries. For example, from November 1 - 20, 1999, 56 dead sea turtles washed ashore in a small area of Pamlico Sound, North Carolina, in the vicinity of Hatteras and Ocracoke Inlets (64 FR 70196, December 16, 1999). Thirty-five of the sea turtles were Kemp's ridleys, the most endangered species of sea turtle. Many sink gillnet fishing vessels were operating in the vicinity. North Carolina state observers were placed on a limited number of the gillnet boats to monitor sea turtle interactions. Because both state and NMFS' observer placement was voluntary, many of the fishermen elected not to carry observers, which resulted in limited information on sea turtle interactions in areas where the interactions were most likely to occur. Adequate sampling occurred only after North Carolina received an ESA section 10(a)(1)(B) incidental take permit (67 FR 67150, November 4, 2002) and observer coverage was a requirement of the permit. These events in North Carolina highlight that a voluntary observer program limits the extent of coverage and hinders the collection of reliable data. Sea Turtle/Fisheries Interactions Sea turtle takes have been documented for numerous gear types/fisheries along the Atlantic, Gulf of Mexico, and Pacific coasts. Both commercial and recreational fisheries in state and federal waters use gear types that may incidentally take sea turtles. Data available on the extent of sea turtle interactions vary by gear type, area, and season. Nonetheless, certain types of gear are more prone to incidentally capturing sea turtles than others, depending on the way the gear is fished and the time and area within which it is fished. Fisheries that use trawls, gillnets, seines, pound nets, traps, pots, dredges, longlines, and hook and line, for example, are potential sources of sea turtle take. Incidental take has been documented in these gear types where the distributions of sea turtles and fisheries overlap. For example, alternative monitoring platforms used to monitor the VA pound net fishery revealed that sea turtle takes are a concern in this fishery. As a result, NMFS implemented management measures aimed at reducing sea turtle interactions in pound net leaders in the southern portion of the Chesapeake Bay from May 6-July 15 of each year, when sea turtles are known to be present and sea turtle strandings are known to occur (71 FR 36024, June 23, 2006). NMFS conducted an ESA section 7 consultation on the pound net fishery and determined that the fishery with the management measures was not likely to jeopardize sea turtles and the agency was able to exempt the fishery from the ESA prohibition on take. While these measures may be reducing the number of sea turtle takes in pound nets, sea turtle strandings in the area have continued despite the management measures. Other fisheries, such as inshore gillnet and purse seine fisheries in the area, may also be contributing to the problem and need to be further evaluated. There are similar examples in other areas around the United States where more comprehensive and targeted observer coverage on fishing vessels is needed to better understand and address the problem of prohibited sea turtle takes incidental to fishing activities, such as the shrimp fishery in the state and Federal waters of the southeast United States and the Gulf of Mexico. This rule would enable NMFS to monitor gear types, such as try nets and skimmer trawls, used in this fishery, which are not currently required to use turtle excluder devices

(TEDs)but that have been documented to interact with sea turtles (Epperly *et al.* 2002; Scott-Denton *et al.* 2007). Both commercial and recreational pots/traps and gillnets have been documented to interact with sea turtles in U.S. waters (Dwyer *et al.* 2002; 67 FR 71895, December 3, 2002; NMFS SEFSC Beaufort Laboratory 2007, unpubl. data); therefore, more information is needed on potential sea turtle interactions in these gear types/fisheries to better evaluate them. In addition, long-term, comprehensive coverage is needed to fill information gaps on sea turtle takes in these and other fisheries and gear types. Thus, through this final rule, NMFS issues ESA regulations to specify that NMFS may place observers on U.S. fishing vessels, either recreational or commercial, operating in U.S. territorial waters, the U.S. exclusive economic zone (EEZ), or on the high seas, or on vessels that are otherwise subject to the jurisdiction of the U.S. Consistent, regular monitoring via placement of observers on fishing vessels is needed to gather data on sea turtle takes and, where necessary, to evaluate existing measures and develop new management measures in certain gear types and/or fisheries to implement the prohibition on take of sea turtles. This action, issued under the authority of the ESA, is a necessary step in the process of implementing the prohibition on take of listed species and to conserve sea turtles listed as threatened or endangered. Observer Program Design The design of any observer program implemented under this rule, including how observers would be allocated to individual vessels, would vary among fisheries, fishing sectors, gear types, and geographic regions and would ultimately be determined by the individual NMFS Regional Office, Science Center, and/or observer program. During the program design, NMFS would be guided by the following standards in the distribution and placement of observers among fisheries identified in annual determinations and vessels in those particular fisheries:

(1)The requirements to obtain the best available scientific information;

(2)The requirement that observers be assigned fairly and equitably among fisheries and among vessels in a fishery;

(3)The requirement that no individual person or vessel, or group of persons or vessels, be subject to inappropriate, excessive observer coverage; and

(4)The need to minimize costs and avoid duplication, where practicable. Consistent with 16 U.S.C. 1881(b), vessels where the facilities for accommodating an observer or carrying out observer functions are so inadequate or unsafe (due to size or quality of equipment, for example) that the health or safety of the observer or the safe operation of the vessel would be jeopardized, would not be required to take observers under this rule. Nonetheless, per 50 CFR 600.746, a vessel that would otherwise be required to carry an observer, but is inadequate or unsafe for purposes of carrying an observer and for allowing operation of normal observer functions, is prohibited from fishing without observer coverage. Failure to comply with the requirements under this rule may result in civil or criminal penalties under the ESA. Observer programs designed or carried out in accordance with this regulation would be required to be consistent with existing observer-related NOAA policies and regulations, such as those under the Fair Labor and Standards Act (29 U.S.C. 201 *et seq.* ), the Service Contract Act (41 U.S.C. 351 *et seq.* ), Observer Health and Safety regulations (50 CFR 600), and other relevant policies. Annual Determination Process The Assistant Administrator for Fisheries, NOAA (AA), in consultation with Regional Administrators and Fisheries Science Center Directors, will make an annual proposed determination identifying which fisheries are required to carry observers, if requested, to monitor potential interactions with sea turtles. Any final determination will be made after an opportunity for public comment. The determination will be based on the best available scientific, commercial, or other information regarding sea turtle-fishery interactions; sea turtle distribution; sea turtle strandings; fishing techniques, gears used, target species, seasons and areas fished; or qualitative data from logbooks or fisher reports. The AA will use the most recent version of the annually published MMPA List of Fisheries

(LOF)as the comprehensive list of commercial fisheries for consideration in addition to known information on non-commercial fisheries in a given area. The LOF includes all known state and federal commercial fisheries that occur in U.S. waters. The categorization scheme of fisheries on the LOF would not be relevant to this process. Unlike the LOF process, recreational fisheries likely to interact with sea turtles on the basis of the best available information may also be included in the determination of fisheries to be monitored under this rule. NMFS will consult with appropriate state or federal fisheries officials and other entities to identify which recreational fisheries should be considered in the annual determination. Notice of the final determination will be made in writing to individuals permitted for each fishery identified for monitoring. NMFS will also notify state agencies and provide notification through publication in local newspapers, radio broadcasts, and other means, as appropriate. Once included in the final determination, a fishery will remain eligible for observer coverage for five years to enable the design of an appropriate sampling program and to ensure collection of sufficient scientific data for analysis. If NMFS determines that more than five years are needed to obtain sufficient scientific data, NMFS will include the fishery in the AA's annual proposed determination again prior to the end of the fifth year. As part of its annual determination, NMFS will include, to the extent practicable, information on the fisheries or gear types to be sampled, geographic and seasonal scope of coverage, or any other relevant information. A 30-day delay in effective date for implementing observer coverage will follow the annual determination, except for those fisheries included in earlier annual determinations within the previous five years or where the AA has determined that there is good cause pursuant to the Administrative Procedure Act to make the rule effective without a 30-day delay. The timing of this process should be coordinated to the extent possible with the annual LOF publication process, as specified in 50 CFR 229.8. Comments and Responses NMFS received fourteen substantive comment letters during the comment period on the ESA observer proposed rule. These letters came from commercial fishing industry organizations, conservation organizations, states, and private individuals. In addition, approximately twenty letters of similar content were received from concerned citizens. Comments in Support of the Rule *Comment 1:* Several commenters stated that the flexibility provided in this rule would lead to better understanding of the impact of bycatch on sea turtles, particularly in state waters, where it is currently lacking. Many commenters also agreed with the need to extend the maximum number of monitoring days after declaration of an “emergency” event (e.g., a stranding) from 30 to 180, stating that greater sampling levels would provide more accurate estimates of interaction rates. *Response:* For the reasons stated in the preamble, NMFS has decided to proceed with development of a final rule for this action. *Comment 2:* One commenter supported the broadest application of this rule, including to all commercial and recreational fishing vessels operating in state and federal waters, as well as U.S. fishing vessels operating outside the territorial seas and exclusive economic zone of the U.S. *Response:* Section 9 of the ESA, and its implementing regulations, prohibits the take of endangered or threatened species by any person subject to the jurisdiction of the U.S. Accordingly, this regulation applies to U.S. commercial or recreational fishing vessels, or vessels otherwise subject to the jurisdiction of the U.S., operating in U.S. territorial waters, in the U.S. exclusive economic zone, or on the high seas. NMFS has clarified the preamble and regulatory text to reflect this. Comments Concerning Try Nets *Comment 3:* One commenter stated that increasing observer coverage for try nets should not be a priority because:

(a)try nets larger than 12 feet require TEDs, and smaller try nets have a low probability of catching a turtle;

(b)the shrimp fishery has declined by over 58 percent in recent years due to increasing fuel costs, shrimp imports, and hurricane effects; and there is a moratorium on federal shrimp permits. *Response:* The annual determination process specified in this final rule requires NMFS to identify those fisheries it intends to observe. The selection criteria include the extent of overlap between the fishing operation and sea turtle presence, type of gear used, documented or reported interactions, and available funds. Given limited resources, NMFS will prioritize fisheries to observe, including the shrimp fishery and trynets. Factors such as the probability of an interaction, past coverage, and fishing trends will be considered. Comments Concerning Recreational Fisheries Monitoring *Comment 4:* Some commenters said the rule does not place adequate emphasis on the need to monitor and observe recreational fisheries, stating that NMFS needs to demonstrate an equal commitment to observe recreational and commercial fisheries. One commenter stated that this rule should not be finalized until a specific process to implement and achieve statistically valid observer coverage in the recreational sector has been identified. *Response:* There is a need to address sea turtle bycatch in both recreational and commercial fisheries. For this reason, NMFS is providing a mechanism to monitor recreational fisheries in this rule. Nonetheless, given the diffuse nature of recreational fisheries and the lack of licensing systems in place to track participants in many recreational fisheries, NMFS recognizes that it will take time to get systems in place that allow for better tracking and understanding of the extent and impact of recreational fisheries. NMFS will consult with appropriate state and/or Federal fisheries officials and other entities to identify which recreational fisheries should be considered in the annual determination. *Comment 5:* One commenter noted that recreational fisheries have grown enormously in the recent past and in many cases use the same gear as is used in the commercial sector and therefore should be considered a source of sea turtle bycatch. *Response:* NMFS has provided a mechanism to monitor sea turtle bycatch in the recreational sector via this rulemaking. Comments Concerning Observer Safety *Comment 6:* One commenter pointed out that the Regulatory Impact Review correctly notes the revenue cost of lost bunk space. However, the greatest impact of lost bunk space is the increase in physical labor and/or loss of sleep for the crew. Lost bunk space reduces safety of life at sea. National Standard 10 and other provisions of the Magnuson-Stevens Act require promotion of safety at sea. This should be considered under ESA rules as well. *Response:* Safety at sea is a critical consideration in placing observers on a vessel. If fewer crew are onboard, the vessel master must accommodate any change in crew capability to ensure safety. NMFS will work closely with the fishing industry, fishery management councils, and states to identify any safety issues that may arise as a result of observer placement under this rule. *Comment 7:* One commenter stated that observers themselves should determine the safety of a vessel before making a trip decision. *Response:* Observers conduct pre-trip safety checks and decide whether or not to board a vessel, in accordance with 50 CFR 600.746. *Comment 8:* One commenter disagreed with the statement, “Vessels too small to accommodate an observer will not be required to take an observer under this rule.” The commenter felt there is no minimum vessel size to take an observer. Observers should be trained to work on small vessels. Small vessels can have a great impact on sea turtles and should not be excluded. *Response:* Small vessels can have an impact on sea turtles, and steps should be taken to quantify and address those impacts. Safety for both the observer and crew are serious considerations in observer placement and observers monitoring small vessels receive special training so they are prepared to address those challenges. While the deployment of observers is still seen as one of the most effective approaches, there are other options that may be considered. Recent advances in technology, such as digital video and imaging, have made remote electronic monitoring a viable alternative in some cases. Additionally, alternate platforms have been used successfully to monitor Virginia pound nets and other fisheries. *Comment 9:* One commenter supports the requirement that vessel owners should comply with observer health and safety requirements. Alternative monitoring systems (e.g., electronic, remote platforms) should be established for fisheries with exceedingly small vessels to be monitored so that a representative sample of vessels can be maintained. *Response:* See response to comment 8. *Comment 10:* One commenter noted that the reference to observer safety requirements is incorrect and should be changed to 50 CFR 600.725 and 50 CFR 600.746. *Response:* NMFS has changed the reference accordingly. Comments Concerning the Duration of Selection of a Fishery for Monitoring under this Rule *Comment 11:* One commenter requested a mechanism to review the designation of a fishery for monitoring consideration more frequently than after the five-year period of inclusion on the list expires. The commenter contended that observer coverage would not necessarily be warranted after a year or season of coverage showed no turtle interactions. *Response:* Due to resource constraints, NMFS will focus the annual determinations on priority fisheries. Nonetheless, NMFS needs the flexibility of a five-year period to monitor a fishery for sea turtle interactions to account for interannual variability in sea turtle bycatch rates and events, as well as in fishing effort. One year of observer coverage that shows no sea turtle interactions would not necessarily rule out that prohibited sea turtle takes occur in the observed fishery, if that year were anomalous for some reason. Furthermore, low take levels in one year or even over several years do not necessarily mean that monitoring of a fishery should discontinue, because changes in fishing or sea turtle distribution or fishing effort may necessitate reconsidering a fishery for monitoring. There will be a comment period associated with each year=s proposed determination of fisheries to monitor, which will provide an opportunity for public input on fisheries proposed for monitoring under this regulation. *Comment 12:* One commenter requested that NMFS institute a transparent process based on specific criteria for removing a fishery from the monitoring list after five years. The commenter noted this should be based on whether the fishery is believed to interact with sea turtles rather than an arbitrary time period. A fishery should remain on the list unless NMFS proves it does not interact with sea turtles. Then NMFS should propose de-listing the fishery and open that decision for public comment. *Response:* NMFS believes five years will most often enable it to compile necessary information on sea turtle takes in a fishery. If after five years, NMFS feels it needs additional time to monitor the fishery, the rule provides a mechanism to reinstate the five-year period for that particular fishery. The rule states, “If NMFS wishes to continue observations beyond the fifth year, NMFS must include the fishery in the proposed annual determination and seek comment, prior to the expiration of the fifth year.” NMFS will notify the public whether a fishery will be removed from the annual determination, after the fifth year in that year's proposed annual determination, which will be open for public comment. Comments Concerning Impacts on Fishermen *Comment 13:* One commenter recommended the proposed rule include a section explaining fishermen's rights and options related to accommodating observers. The commenter requested that NMFS address the following questions:

(a)Will fishers be apprised of how many times they will be required to have observers?;

(b)What options exist for vessel owners to select date/times/locations?; What options are there for refusal?;

(d)What is the penalty for non-compliance?; and

(e)What can/cannot the observer do relative to vessel operations? *Response:* An observer is not required to board, or stay aboard, a vessel that is unsafe or inadequate. Written notification of the final annual determination will be mailed to the owners or operators of fishing vessels. In the notification, NMFS will make every effort to provide information on the fishing sector, and temporal and geographic scope of coverage. NMFS will select optimal days, times, and locations to observe the vessel, based on appropriate sampling design and collection of scientific data regarding takes of sea turtles, and will notify fishermen accordingly. Failure to comply with the requirements under this rule may result in civil and/or criminal penalties as prescribed by the ESA. Observers may only observe and record data, and may not be required to perform duties normally performed by crew members. *Comment 14:* One commenter said NMFS should consider the social and economic impacts of sea turtle observer coverage under this rule in combination with all other observer coverage requirements (e.g., for fish population assessment, other protected species monitoring) with which fishermen must comply and should establish a maximum cap on total observer trips for individual or groups of vessels at a given homeport. *Response:* The standards for placing observers as specified in the final rule will ensure that cumulative social and economic burdens will be minimized. NMFS will ensure that assignment of observers is fair and equitable, and that no individual person or vessel, or group of persons or vessels, is subject to inappropriate, excessive observer coverage. NMFS will also minimize costs and avoid duplication, where practicable. Comments Concerning Coordination with States *Comment 15:* One state requested that it be directly notified of the annual proposed determination of fisheries eligible for sea turtle bycatch monitoring. Another state offered its help in identifying fisheries that should be targeted for monitoring based on the level of sea turtle interactions. *Response:* Effective implementation of this rule will require regular communication and coordination with coastal states. As stated in the regulatory text at § 222.402(b), “The Assistant Administrator shall publish the proposed determination in the **Federal Register** notice and seek comment from the public. Additionally, NMFS will notify state agencies and provide notification through publication in local newspapers, radio broadcasts, and any other means as appropriate.” NMFS appreciates and encourages assistance from states in identifying fisheries that should be monitored for turtle interactions. Comments Concerning Status of Sea Turtles *Comment 16:* One commenter noted that recent analyses by the state of Florida of 17 years of loggerhead turtle ( *Caretta caretta* ) nesting data in Florida indicate a 22.3-percent decline in nests during this period. Threats to reproductive adult populations or earlier life stages on feeding grounds (e.g., fishing interactions), as opposed to threats on land, are likely the cause of decline. The commenter contends the doubling of loggerhead strandings in Florida over the past decade supports this claim. *Response:* NMFS is concerned about the recent data on loggerhead nesting trends from Florida. The Turtle Expert Working Group, a group of scientists and managers focused on turtle population assessment issues, is currently reviewing the status of loggerhead turtles, including the Florida nesting information, to try to determine the status of the species and sources of the decline. This final rule will allow for more comprehensive monitoring of sea turtle interactions in state, federal, and recreational fisheries and will help identify previously unknown sources of turtle interactions with fishing gear. *Comment 17:* One commenter expressed that NMFS is putting the cart before the horse and should first determine and provide statistically valid, accurate scientific data on the actual status and population trends of turtles along the east coast before addressing turtle bycatch. The commenter claimed NMFS needs population information to determine what constitutes a significant take rate for a particular population of sea turtle. The commenter inquired how NMFS will conduct jeopardy determinations and ESA section 7 consultations without population status information. *Response:* Section 9 of the ESA prohibits the take (including harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting or attempting to engage in any such conduct), including incidental take, of an endangered species. Additionally, pursuant to section 4(d) of the ESA, NMFS has issued regulations extending the prohibition of take, with exceptions, to threatened sea turtles (50 CFR 223.205 and 223.206). Thus, take of any level is prohibited unless it is specifically exempted from the ESA take prohibition. NMFS also has an obligation under Sec. 4(f)(1) of the ESA to develop and implement recovery plans to promote the conservation and recovery of endangered and threatened species. In collaboration with NMFS scientists and other scientists knowledgeable in sea turtle biology and population structure, NMFS is conducting sea turtle population assessments. For instance, NMFS completed assessments on the Kemp's ridley and loggerhead in 1998 and 2000 (Turtle Expert Working Group, “An Assessment of the Kemp's Ridley and Loggerhead Sea Turtle Populations in the Western North Atlantic,” NOAA Technical Memorandum NMFS-SEFSC-409, 96 pp (1998); Turtle Expert Working Group, “Assessment Update for the Kemp's Ridley and Loggerhead Sea Turtle Populations in the Western North Atlantic,” NOAA Technical Memorandum NMFS-SEFSC-444, 115 pp (2000)), and the leatherback in 2007 (Turtle Expert Working Group, “An Assessment of the Leatherback Population in the Atlantic Ocean,” NOAA Technical Memorandum NMFS-SEFSC-555, 116 pp. (2007)). NMFS is currently reassessing the loggerhead population, given the recent data from Florida. NMFS uses these data and other sources of best available scientific data in ESA section 7 consultations and as the basis for other management decisions. Comments Concerning Recommended Information Collection *Comment 18:* Commenters recommended that NMFS observers collect as much data as possible on the nature of the sea turtle take, including information on the location, number, time of day, catch per unit effort, and water temperature associated with the take; and the size, genetic identity, general health (e.g., appearance of fibropapillomatosis), and behavior of the sea turtles taken. Collecting information on these parameters will help NMFS limit regulations to the appropriate parameters and not unnecessarily burden fishermen. *Response:* It is important to collect all the above information, and NMFS will design observer programs to collect as much relevant information on sea turtles as possible within legal limits in order to best address prohibited sea turtle takes. Comments Concerning Observer Coverage *Comment 19:* One commenter thought it was good to extend the emergency monitoring authority currently in 50 CFR 223.206(d)(4) from 30 to 180 days, with a possible 60-day extension to 240 days, but thought the proposed regulatory language would limit the total amount of time an observer may be deployed, which current regulations do not. The commenter recommends retaining the language in the current regulation so that it does not limit total coverage under this provision to a maximum of 240 days. *Response:* The 240-day maximum is consistent with ESA section 4(b)(7) and other emergency regulations that NMFS has promulgated under the ESA. Furthermore, NMFS believes that public notice and comment is appropriate if observer placement requirements are proposed for continuance after the 240-day maximum. *Comment 20:* One commenter recommended that observer programs take seasons and water temperatures into account when allocating resources and observers, given that sea turtle distribution can vary seasonally, particularly at higher latitudes. *Response:* Sampling designs must reflect the biology and distribution of the species to optimize monitoring of sea turtle bycatch events and increase the precision of the estimates of sea turtle interactions. NMFS' estimates of sea turtle bycatch will be enhanced by this final rule, as it eliminates the reliance on obtaining sea turtle-fishing gear interaction data through observer programs designed to monitor marine mammal or fish bycatch. *Comment 21:* One commenter stated that the South Carolina shad gillnet fishery should not be included in the annual determination of fisheries for monitoring because it operates in winter when sea turtles are not present. *Response:* The annual determination process specified in this final rule requires NMFS to identify those fisheries it intends to observe given concerns regarding interactions with sea turtles. The selection criteria include the extent of overlap between the fishing operation and sea turtle distribution, type of gear used, documented or reported interactions, incidence of sea turtle strandings in an area where a particular fishery operates, and available funds. Thus, where and when a fishery operates will be a factor in selection for monitoring. While sea turtles, depending on the species, are generally south or further offshore of South Carolina in the winter months, annual variability exists and sea turtles have been documented in South Carolina waters during the winter months. NMFS will work with South Carolina to determine if there is any overlap between the shad gillnet fishery and sea turtle distribution and whether monitoring of this fishery is warranted under this rule. *Comment 22:* One commenter noted that sea turtle interactions in try nets and pots/traps are incredibly rare and that observer coverage would have to be extremely high to yield any information. In some fisheries, the occurrence of bycatch is so rare that placing observers would be meaningless. Therefore, NMFS should select fisheries that have a “reasonable chance” of observing an interaction. *Response:* As stated in response to Comment 21, the annual determination process specified in this final rule requires NMFS to identify those fisheries it intends to observe given concerns regarding interactions with sea turtles. The selection criteria include the extent of overlap between the fishing operation and sea turtle distribution, type of gear used, documented or reported interactions, incidence of sea turtle strandings in an area where a particular fishery operates, and available funds. Once a fishery is selected, coverage levels are determined based on several factors, including spatial and temporal variability in the fisheries and the distribution of the species being observed. Where warranted, target coverage levels for rare events are much higher than for common events. In some currently observed fisheries (e.g., Hawaii shallow set longline fishery for swordfish) where interactions are rare, the coverage level is 100 percent to allow for accurate information to be collected. For new observer programs, a pilot study is often initiated to provide information on variability of bycatch species within the fishery. The information collected during this pilot study is then used to more accurately determine the target observer coverage necessary to provide accurate bycatch estimates (typically measured as a coefficient of variation around the bycatch estimate). If appropriate, monitoring of catch or bycatch through electronic means or alternate platforms may be evaluated during the pilot study. *Comment 23:* NMFS should make every effort to obtain adequate observer coverage for all fisheries on the list, including requesting the appropriate amount of funding in the budget process. *Response:* NMFS is committed to achieving adequate observer coverage, and that means making every effort to request, identify, and allocate funds. Part of the decision for placing a fishery on the list is the extent of anticipated funds. However, there are many competing needs for limited funds, and priorities could change over the time a fishery is on the list. Comments Concerning the Annual Determination Process *Comment 24:* One commenter stated that the rule must specify that the annual review by the Assistant Administrator shall include consideration of applicable past observer coverage before final categorization of a given fishery. Such a pre-listing review, the commenter contends, would exclude many New Jersey gillnet fisheries from listing. *Response:* Past monitoring of a particular fishery, and the resulting data and its present applicability, will be taken into consideration in the development of an annual determination of fisheries to be monitored under this rule, as appropriate. However, prior monitoring of a fishery does not necessarily mean it will be excluded from the annual determination if, for example, NMFS needs to obtain additional sea turtle interaction information to improve data accuracy and precision, if fishing practices or effort have changed, or if sea turtle distribution has changed based on environmental conditions. *Comment 25:* Some commenters recommended that the annual determination of fisheries to be monitored not be limited by resources as indicated in one of NMFS' criteria for inclusion on the list: “The extent to which NMFS intends to monitor the fishery and anticipates that it will have the funds to do so.” Instead, the determination should be as inclusive as possible, for instance, by including all fisheries with unknown levels of sea turtle interaction, and should be determined by sea turtle conservation needs and priorities rather than available funding. *Response:* This process will be driven by the need to identify those fisheries in which sea turtle takes occur, so that existing management measures to reduce sea turtle takes may be evaluated and a determination made as to whether any additional measures may be necessary to implement the prohibition on take of sea turtles. Sea turtle conservation and recovery priorities will also be considered. However, NMFS included this criterion to help prioritize fisheries for monitoring. Additionally, this criterion will assist in notifying the public of NMFS' intent to monitor a given fishery. *Comment 26:* One commenter stated that the rule should include a public comment process between proposed and final annual determinations of fisheries to be monitored. *Response:* The final rule at § 222.402(b) states: “The Assistant Administrator shall publish the proposed determination and any final determination in the **Federal Register** . Public comment will be sought at the time of publication of the proposed determination.” *Comment 27:* One commenter notes that listing a fishery under the annual determination simply based on similarity to other listed fisheries is inappropriate. This process should occur on a fishery by fishery basis and be examined for temporal and spatial overlap with sea turtles, regional distinctions in fishing practices, and past observer coverage. *Response:* In many cases, similarities of fishing gear to gear known to take sea turtles can make it a potential threat to sea turtles if the fishery overlaps with turtles in time and space. Nonetheless, NMFS will take fishing gear deployment or other characteristics (e.g., average tow time of gear) into account, as appropriate, when proposing fisheries in the annual determination. NMFS will also attempt to design observer programs to optimize sea turtle bycatch monitoring, for instance, by deploying observers during seasons and in locations when sea turtle bycatch is believed to be most problematic. This is an important cost-effective measure. *Comment 28:* One commenter asked what terms and conditions will be specified in the written annual determination of fisheries to be monitored under this rule. *Response:* As stated in § 222.402(b) of the proposed and final rules, “The proposed and final determinations will include, to the extent practicable, information on fishing sector, targeted gear type, target fishery, temporal and geographic scope of coverage, or other information, as appropriate.” *Comment 29:* One commenter recommended that NMFS take advantage of other associated and independent assessments of sea turtle bycatch being undertaken by the Strategy for Sea Turtle Conservation and Recovery in Relation to Atlantic and Gulf of Mexico Fisheries (Strategy) and Project GLOBAL at Duke University. *Response:* NMFS acknowledges the comment. Comments Concerning the Use of Best Available Science *Comment 30:* One commenter pointed out that the proposed rule does not specify how it will develop sampling programs that yield best available science. It should be clarified that best available science refers to information specifically about sea turtle conservation, including but not limited to, the catch rates of sea turtles in specific gear types, regions, and seasons. Resources should be allocated to yield statistically valid results. The best available science should be explicitly outlined in a published sampling design for each observed fishery that includes methodologies for maximizing precision and accuracy while minimizing bias. *Response:* Observer program manuals providing details on data collection protocols are provided on each of the regional observer websites as well as on the National Observer Program

(NOP)Web site ( *http://www.st.nmfs.gov/st4/nop/Observer_training_resources.html* ). The program manuals do not specifically provide information on sampling design, however, the sampling designs for all regional observer programs are published in many different forums, including peer reviewed journals and NMFS stock assessment reports. Sampling designs for all NMFS observer programs are developed to provide statistically valid information and to produce results that will contribute to the body of best available science. The sampling design will vary depending on many factors, including the fishery to be observed, the spatial and temporal variability in the fishery and species observed, and the overall goals of the observer program. Once a fishery is selected for observer coverage, a sampling design will be developed to yield statistically valid results. The issue of minimizing bias was addressed by the National Observer Program through a vessel selection bias workshop held in May 2006. Workshop recommendations to reduce bias included assessing the accuracy of estimated metrics used to compare observed vessels with the general fleet; selecting vessels and trips with equal probability within the sector for which bycatch are to be estimated; and identifying fishing regulations and other factors that may encourage vessel operators to alter fishing behavior when observers are present. These and other recommendations will be implemented by all regional observer programs to evaluate and minimize vessel selection and observer bias. The vessel selection bias workshop report is available online at *http://www.st.nmfs.noaa.gov/st4/nop/documents/Vessel_Selection _Bias_Report_final.pdf.* Comments Concerning Regulatory Language *Comment 31:* One commenter thought that Science Center Directors should also have authority to require fishing vessels to carry an observer, since many NMFS observer programs are operated out of Science Centers. *Response:* As stated in the preamble to the proposed rule at 71 FR 76268 (December 20, 2006), and clarified in this final rule, on an annual basis, the Assistant Administrator, in consultation with Regional Administrators and Science Center Directors, will determine which fisheries NMFS intends to monitor. Thus, Regional Offices and Science Centers, both of which administer observer programs depending on the NMFS region, will be integral to the process of identifying fisheries for monitoring as well as implementing observer coverage once those fisheries have been identified. *Comment 32:* One commenter recommended that NMFS delete the statement in the proposed regulatory text, “NMFS will pay direct costs for the observer,” stating that it could preclude the establishment of non-NMFS-funded programs through this regulation. *Response:* Partnerships with interested cooperating entities external to NMFS could enhance the potential for obtaining sea turtle bycatch information under this regulation. NMFS has changed the regulatory and preamble text to reflect this. General Comments and Questions on the Proposed Rule *Comment 33:* One commenter asked whether the agency plans to use observer information to implement broad-based measures across similar gear types or specially designed measures for specific fisheries known to interact with sea turtles. *Response:* Any management measures to implement the prohibitions of take will be based on the data collected from each fishery and gear type and the recommendations of NMFS and the states in which those fisheries interactions occur. Affected states may elect to develop and apply for an ESA section 10(a)(1)(B) incidental take permit to manage their own fisheries that are known to interact with sea turtles. Alternately, NMFS has implemented ESA regulations in state waters over large geographic areas such as in the shrimp fishery. Any future measures will be fully vetted through the public rulemaking process. *Comment 34:* One commenter noted that the proposed rule mentions bycatch as a leading threat to sea turtle populations worldwide but questioned what the other threats to sea turtle populations were and what type of observer programs are applied to those threats. The commenter wondered whether there were equal standards for all industries that threaten sea turtles. *Response:* Information on both fishery and non-fishery threats to sea turtles is available in the sea turtle recovery plans at *http://www.nmfs.noaa.gov/pr/species/esa/turtles.htm* . Generally speaking, threats include coastal construction, poaching, power plant entrainment, and many other activities. Federal agencies whose activities affect sea turtles must consult under ESA section 7. Private and state entities whose activities affect sea turtles consult with NMFS and/or the U.S. Fish and Wildlife Service pursuant to ESA section 7 as a result of applying for a section 10(a)(1)(B) incidental take permit. As a result of those consultations, many agencies, such as the Army Corps of Engineers in their harbor maintenance program, must monitor the effects of their actions. Measures to minimize and mitigate the effects of human activities on sea turtle populations depend on the extent, frequency, and severity of the effect. Given the high level of variability in these factors, standard measures cannot be applied across industries. *Comment 35:* One commenter stated that NMFS should not limit its efforts to data collection but should cap and control sea turtle take by setting meaningful bycatch limits that are enforced in a timely manner. *Response:* Data collection is integral to implementing the prohibitions of take under the ESA, but is merely one step in the process. This action will also allow NMFS to better address sea turtle conservation and recovery by helping NMFS identify, quantify, and ultimately develop measures, where necessary, to reduce incidental sea turtle take in fishing gear. Voluntary and mandatory self-reporting have limited utility and the current observer requirements do not allow NMFS to sufficiently address sea turtle bycatch, as the preamble describes. To address sea turtle bycatch in fishing gear on a more comprehensive level, NMFS implemented the Sea Turtle Strategy referenced in comment 29 above. The Strategy is seeking to address prohibited sea turtle bycatch on a per-gear basis rather than a target fishery basis. Monitoring undertaken through this final rule will help provide a baseline assessment of fisheries that may be a concern, which, in combination with sea turtle population studies and other information, will help prioritize and focus measures for sea turtle conservation. *Comment 36:* One commenter noted that sea turtles in shallow water zones (e.g., along the Atlantic shelf) are highly vulnerable to fisheries, especially those using trawls and dredges. *Response:* This final rule will allow for more comprehensive monitoring of sea turtle interactions along the Atlantic shelf and other areas where sea turtles are found. *Comment 37:* One commenter suggested NMFS continue to use alternative platforms to monitor fisheries when they are difficult to cover with observers. *Response:* See response to comment 8 above. *Comment 38:* One commenter questioned who qualifies and provides observers and how observers are authorized before being placed on vessels. *Response:* The majority of regional observer programs operate under government contract with private observer service providers. Several programs, including the North Pacific Groundfish Observer Program, West Coast Off-shore hake observer program, and the Northeast sea scallop observer program, obtain observers through NMFS-permitted observer service providers. These providers operate through direct contracts with the fishing vessel and provide qualified observers to NMFS. The observer service providers interview, hire, and deploy the observers on fishing vessels as required either through the government contract or through NMFS regulations for the industry funded programs. NMFS has developed national observer eligibility standards to ensure that all NMFS observers have consistent minimum qualifications, including standards for education and experience, training, conflict of interest, physical condition, communication skills, and citizenship or ability to work legally in the U.S. They will be implemented by all regional observer programs. All regional observer programs provide formal observer training and all observers must pass an exam prior to deployment. Comments on the Draft Environmental Assessment *Comment 39:* One commenter supported Alternative 3 (“Require Observer Programs in All Incidental Take Permits (Section 10(a)(1)(b)) Related to Fisheries”) of the Draft Environmental Assessment accompanying the proposed rule. The commenter said this alternative would enable the most accurate bycatch monitoring and reporting, improve understanding of recreational and commercial bycatch, and be a critical step toward developing a national comprehensive bycatch program. *Response:* NMFS rejected this Alternative because a comprehensive, coast-wide monitoring program is needed as an initial baseline assessment to further address sea turtle bycatch. Under this Alternative, individual states would need to assess and make determinations on whether to apply for an incidental take permit under the ESA. The onset of observer programs may vary greatly, and geographic gaps in coverage may result. Each state's fisheries monitoring program may consist of different protocols for sampling and data collection, which may hinder the ability to compare and analyze data. NMFS believes this final rule will provide a more systematic and comprehensive framework for collecting bycatch data in fisheries of concern than would be achieved under Alternative 3. Nonetheless, this final rule does not preclude the authorities and responsibilities of ESA section 10(a)(1)(b). NMFS will work closely with states in implementing this final rule and on long-term measures to address prohibited takes of sea turtles. Summary of Changes from the Proposed Rule This section details and explains notable changes made to the final rule from the proposed rule. NMFS has changed language in the preamble and regulatory text to clarify that NMFS and/or interested cooperating entities will pay direct costs for the observer. NMFS made this change in response to a comment, described above, that the rule should not preclude interested cooperating entities from supporting observer coverage for certain fisheries, as appropriate. Such partnerships exist in observer programs around the country and may help enhance coverage levels where needed. NMFS changed language in the regulatory text at § 222.401 to clarify that the NMFS Assistant Administrator will work with both Science Center Directors and Regional Administrators to identify fisheries that should be observed for sea turtle interactions under this regulation. This is appropriate since observer programs are administered at both the Science Center and Regional office level, depending on the specific region. NMFS clarified language in the preamble and regulatory text describing the appropriate application of the rule to U.S. fishing vessels operating inside waters of the U.S. (territorial waters and waters within the U.S. EEZ) as well as on the high seas. The rule clarifies that NMFS may place observers on either recreational or commercial U.S. fishing vessels operating within U.S. waters or on the high seas, or on vessels that are otherwise subject to the jurisdiction of the United States. NMFS corrects an error in § 222.402(b) that states: “In addition, a written notification of the proposed determination will be sent to the addresses specified for the vessel in either the NMFS or state fishing permit application, or to the address specified for registration or documentation purposes, or upon written notification otherwise served on the owners or operators of a vessel” (emphasis added). NMFS intended this step to occur at the final, not proposed, determination stage, where such notification would be more appropriate and cost-effective. NMFS clarifies in the final rule the exceptions to the 30-day delay in the effective date for implementing observer coverage following a final annual determination. The Classification section of the proposed rule stated, “A 30-day delay in effective date for implementing observer coverage will follow the annual notification, except for those fisheries that were listed in the preceding annual notification or where the AA has determined there is good cause [pursuant to the Administrative Procedure Act] to make the rule effective without a 30-day delay.” NMFS, however, did not include the “good cause” portion of the exception in the regulatory text of the proposed rule due to an oversight. Thus, NMFS adds this exception to the 30-day delay in effective date to the final rule. NMFS corrects the citation to the observer health and safety requirements in § 222.401 of the final rule. References Dwyer, K.L., C.E. Ryder, and R. Prescott. 2002. Anthropogenic mortality of leatherback sea turtles in Massachusetts waters. 2002. In: Proceedings of the Twenty-Second Annual Symposium on Sea Turtle Conservation and Biology. NOAA Tech Memo. NMFS-SEFSC-503, p.260. Epperly, S., Avens,L., Garrison, L., Henwood, T., Hoggard, W., Mitchell, J., Nance, J., Poffenberger, J., Sasso, C., Scott-Denton, E., and Yeung, C. 2002. Analysis of sea turtle. Bycatch in the commercial shrimp fisheries of Southeast U.S. waters and the Gulf of Mexico. NOAA Technical Memorandum NMFS-SEFSC-490, 88p. National Marine Fisheries Service, Southeast Fisheries Science Center, Beaufort Laboratory. 2007. Sea Turtle Sightings Database, unpublished. Scott-Denton, Elizabeth; Cryer, Pat; Gocke, Judith; Harrelson, Mike; Nance, James; Smith, Rebecca; and Williams, Jo Anne. CCB-0702. 2007. Incidental capture of sea turtles in the U.S. southeastern shrimp trawl fishery. Classification An informal Section 7 consultation was prepared for the proposed rule. It found that this action is not likely to adversely affect species listed as threatened or endangered or their associated critical habitat under the ESA. This action has been determined to be not significant for purposes of Executive Order 12866. The AA prepared an environmental assessment for this rule, which resulted in a Finding of No Significant Impact. A copy of the EA is available (see ADDRESSES ). The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant impact on a substantial number of small entities. The factual basis for this certification is as follows: For the purpose of this certification, all fishermen affected by this rule will be considered individual small entities. Given the nature of sampling programs and limited NMFS resources, this rule will likely affect fewer than one hundred fishermen at any given time. Individual small entities will not be required to incur direct costs for complying with this observer requirement as NMFS and/or cooperating entities will pay the direct costs associated with observer coverage. Direct costs include observer salary and insurance costs. Potential indirect costs to individual small entities required to take observers under this rule may include: lost space on deck for catch, lost bunk space, and lost fishing time due to time needed to process bycatch data. For all these potential indirect costs, it is important to note that, due to limited resources and sampling protocols, effective monitoring will rotate observers among a limited number of vessels in a fishery at any given time. Thus, the potential indirect costs to individual small entities further described below are expected to be minimal since observer coverage would only be required for a small percentage of an individual's total annual fishing time. Lost space on deck for catch is a potential indirect cost to small entities. The indirect costs would potentially be less room to store catch or to house another active fishermen. However, in accordance with Observer Health and Safety standards, vessels too small to safely accommodate an observer will not be required to take an observer under this rule. Thus, the individuals most likely to be affected by this indirect cost, will not likely be required to accommodate an observer. Lost bunk space is a potential cost in that a vessel may need to limit the number of working fishermen onboard to accommodate an observer for overnight trips. While this could result in lost fishing effort, and therefore lost catch, this would only be a potential cost to that subset of fishing vessels for which overnight fishing trips are a regular occurrence. Furthermore, given that larger vessels are usually used for fishing involving multi-day trips, the circumstances in which an observer would significantly displace fishing effort due to lost bunk space are not expected to occur with frequency. Thus, for this and the reasons stated above, the potential indirect cost of lost bunk space to individual small entities resulting from this rule is expected to be minimal. Lost fishing time due to time needed to process sea turtle bycatch data is another potential indirect cost to fishermen of this observer requirement. However, while individually significant, sea turtle bycatch events are generally rare occurrences. Thus, the need to process such data is not expected to occur on a frequent basis, rendering this an insignificant impact on individual fishermen. This rule includes an annual notification process whereby the Assistant Administrator for Fisheries

(AA)would make an annual determination identifying which fisheries require observer coverage for the purpose of monitoring potential sea turtle takes. The determination will be based on the best available commercial, biological, and other data. NMFS will publish a proposed notice in the **Federal Register** for public comment. A 30-day delay in effective date for implementing observer coverage will follow the **Federal Register** publication of any final annual notification, except for those fisheries that were listed in the preceding annual notification or where the AA has determined that there is good cause pursuant to the Administrative Procedure Act to make the rule effective without a 30-day delay. Annual notification will include, but not be limited to, information on the fisheries to be sampled, geographic and seasonal scope, and level of coverage. For the reasons stated herein, the rule to establish mandatory observer coverage is not likely to impose a significant economic impact on a substantial number of small entities. This rule does not contain a collection-of-information requirement subject to the Paperwork Reduction Act. This rule contains policies with federalism implications as that term is defined in Executive Order 13132. The Assistant Administrator for NMFS notified state environmental management directors of this rule via a formal letter and detailed fact sheet describing the rule. NMFS will continue to solicit input from the appropriate officials of affected state, local, and/or tribal governments to solicit their input on the development of relevant observer programs under this rule. List of Subjects 50 CFR Part 222 Administrative Practice and Procedure, Endangered and threatened species, Exports, Imports, Marine mammals. 50 CFR Part 223 Endangered and threatened species, Exports, Imports, Transportation. Dated: July 30, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 222 and 223 are amended as follows: PART 222—GENERAL ENDANGERED AND THREATENED MARINE SPECIES 1. The authority citation for part 222 is revised to read as follows: Authority: 16 U.S.C. 1531 *et seq.* ; 16 U.S.C. 742a *et seq.* 2. New subpart D to part 222 is added to read as follows: Subpart D—Observer Requirement Sec. 222.401 Observer requirement. 222.402 Annual determination of fisheries to be observed; notice and comment. 222.403 Duration of selection; effective date. 222.404 Observer program sampling. Subpart D—Observer Requirement § 222.401 Observer requirement. Any United States fishing vessel, either commercial or recreational, which operates within the territorial seas or exclusive economic zone of the United States or on the high seas, or any fishing vessel that is otherwise subject to the jurisdiction of the United States, operating in a fishery that is identified through the annual determination process specified in § 222.402 must carry aboard a NMFS-approved observer upon request by the NMFS Assistant Administrator, in consultation with NMFS Regional Administrators and Science Center Directors, as appropriate. NMFS and/or interested cooperating entities will pay direct costs for the observer. Owners and operators must comply with observer safety requirements specified at 50 CFR 600.725 and 50 CFR 600.746 and the terms and conditions specified in the written notification. § 222.402 Annual determination of fisheries to be observed; notice and comment.

(a)The Assistant Administrator, in consultation with Regional Administrators and Science Center Directors, will make an annual determination identifying which fisheries the agency intends to observe. This determination will be based on the extent to which:

(1)The fishery operates in the same waters and at the same time as sea turtles are present;

(2)The fishery operates at the same time or prior to elevated sea turtle strandings; or

(3)The fishery uses a gear or technique that is known or likely to result in incidental take of sea turtles based on documented or reported takes in the same or similar fisheries; and

(4)NMFS intends to monitor the fishery and anticipates that it will have the funds to do so.

(b)The Assistant Administrator shall publish the proposed determination and any final determination in the **Federal Register** . Public comment will be sought at the time of publication of the proposed determination. In addition, a written notification of the final determination will be sent to the address specified for the vessel in either the NMFS or state fishing permit application, or to the address specified for registration or documentation purposes, or such notification will be otherwise served on the owners or operator of the vessel. Additionally, NMFS will notify state agencies and provide notification through publication in local newspapers, radio broadcasts, and any other means as appropriate. The proposed and any final determinations will include, to the extent practicable, information on fishing sector, targeted gear type, target fishery, temporal and geographic scope of coverage, or other information, as appropriate.

(c)Fisheries listed on the most recent annual Marine Mammal Protection Act List of Fisheries in any given year, in accordance with 16 U.S.C. 1387, will serve as the comprehensive set of commercial fisheries to be considered for inclusion in the annual determination. Recreational fisheries may also be included in the annual determination.

(d)Publication of the proposed and final determinations should be coordinated to the extent possible with the annual Marine Mammal Protection Act List of Fisheries process as specified at 50 CFR 229.8.

(e)Inclusion of a fishery in a proposed or final determination does not constitute a conclusion by NMFS that those participating in the fishery are illegally taking sea turtles. § 222.403 Duration of selection; effective date.

(a)Fisheries included in the final annual determination in a given year will remain eligible for observer coverage under this rule for five years, without need for NMFS to include the fishery in the intervening proposed annual determinations, to enable the design of an appropriate sampling program and to ensure collection of scientific data. If NMFS wishes to continue observations beyond the fifth year, NMFS must include the fishery in the proposed annual determination and seek comment, prior to the expiration of the fifth year.

(b)A 30-day delay in effective date for implementing observer coverage will follow the annual notification, except for those fisheries that were included in a previous determination within the preceding five years or where the AA has determined that there is good cause pursuant to the Administrative Procedure Act to make the rule effective without a 30-day delay. § 222.404 Observer program sampling.

(a)During the program design, NMFS would be guided by the following standards in the distribution and placement of observers among fisheries and vessels in a particular fishery:

(1)The requirements to obtain the best available scientific information;

(2)The requirement that assignment of observers is fair and equitable among fisheries and among vessels in a fishery;

(3)The requirement that no individual person or vessel, or group of persons or vessels, be subject to inappropriate, excessive observer coverage; and

(4)The need to minimize costs and avoid duplication, where practicable.

(b)Consistent with 16 U.S.C. 1881(b), vessels where the facilities for accommodating an observer or carrying out observer functions are so inadequate or unsafe (due to size or quality of equipment, for example) that the health or safety of the observer or the safe operation of the vessel would be jeopardized, would not be required to take observers under this rule. PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 3. The authority citation for part 223 continues to read as follows: Authority: 16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 *et seq.* ; 16 U.S.C. 5503(d) for § 223.206(d)(9). 4. In § 223.206, the second sentence of paragraph (d)(4)(iv) is revised to read as follows: § 223.206 Exceptions to prohibitions relating to sea turtles.

(d)* * *

(4)* * *

(iv)*Procedures.* * * * An emergency notification will be effective for a period of up to 30 days and may be renewed for additional periods of up to 30 days each, except that emergency placement of observers will be effective for a period of up to 180 days and may be renewed for an additional period of 60 days. * * * [FR Doc. E7-15145 Filed 8-2-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 070726420-7421-01] RIN 0648-XB74 Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule. SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, announces temporary restrictions consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing regulations. These regulations apply to lobster trap/pot and anchored gillnet fishermen in an area totaling approximately 3,530 nm 2 (12,108 km 2 ), southeast of Chatham, Massachusetts, for 15 days. The purpose of this action is to provide protection to an aggregation of northern right whales (right whales). DATES: Effective beginning at 0001 hours August 5, 2007, through 2400 hours August 19, 2007. ADDRESSES: Copies of the proposed and final Dynamic Area Management

(DAM)rules, Environmental Assessments (EAs), Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may also be obtained by writing Diane Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 01930. FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected Resources, 301-713-2322. SUPPLEMENTARY INFORMATION: Electronic Access Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP Web site at *http://www.nero.noaa.gov/whaletrp/* . Background The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act

(MMPA)to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result). On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may:

(1)require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period;

(2)allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or

(3)issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period. A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm2 (1.85 km2). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting. On July 24, 2007, an aerial survey reported three aggregations of right whales, totaling thirty individuals in the proximity of 41° 23′ N latitude and 68° 50′ W longitude. The positions lie approximately 54nm southeast of Chatham, MA. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP. Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data. NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule. The DAM Zone is bound by the following coordinates: 42° 00′ N., 69° 24′ W (NW Corner) 42° 00′ N., 68° 08′ W 40° 58′ N., 68° 08′ W 40° 58′ N., 69° 24′ W 42° 00′ N., 69° 24′ W (NW Corner) In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Special note for gillnet fisherman: A portion of this DAM zone overlaps the year-round Closure Area I for Northeast Multispecies found at 50 CFR 648.81(a). Due to this closure, sink gillnet gear is prohibited from this portion of the DAM zone. Lobster Trap/Pot Gear Fishermen utilizing lobster trap/pot gear within the portion of the Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys. Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area and Great South Channel Restricted Lobster Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys. Anchored Gillnet Gear Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area, Great South Channel Restricted Gillnet Area, and Great South Channel Sliver Restricted Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per string; 4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends; 5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and 6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string. The restrictions will be in effect beginning at 0001 hours August 5, 2007, through 2400 hours August 19, 2007, unless terminated sooner or extended by NMFS through another notification in the **Federal Register** . The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA. Classification In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator

(AA)for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales. Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request. NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable. For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the **Federal Register** . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the **Federal Register** processes the document for publication. NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state. The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ). The rule implementing the DAM program has been determined to be not significant under Executive Order 12866. Authority: 16 U.S.C. 1361 *et seq.* and 50 CFR 229.32(g)(3) Dated: July 30, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. 07-3810 Filed 7-31-07; 3:13 pm]

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