Unknown. Interim rule with request for comments

21,598 words·~98 min read·/register/2007/10/15/07-5066

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-10-15.xml --- 72 198 Monday, October 15, 2007 Contents Actuaries Actuaries, Joint Board for Enrollment See Joint Board for Enrollment of Actuaries Agency Agency for Healthcare Research and Quality NOTICES Meetings: Healthcare Research and Quality National Advisory Council, 58309 07-5057 Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Forest Service See Natural Resources Conservation Service Air Force Air Force Department NOTICES Environmental statements; notice of intent:

Eglin Air Force Base, FL; Joint Strike Fighter Integrated Training Center; establishment, 58296 E7-20278 Animal Animal and Plant Health Inspection Service RULES Exportation and importation of animals and animal products: Bovine spongiform encephalopathy; minimal-risk regions; importation of live bovines and products derived from bovines Correction, 58375 C7-4595 NOTICES User fees: Agricultural quarantine and inspection (2008 FY); commercial vessels, 58283-58284 E7-20224 Coast Guard Coast Guard RULES Drawbridge operations:

Louisiana, 58250-58251 E7-20207 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 58295-58296 E7-20085 Defense Defense Department See Air Force Department NOTICES Meetings: Uniformed Services University of Health Sciences Board of Regents, 58296 07-5064 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-20256 58297-58299 E7-20258 E7-20259 EPA Environmental Protection Agency PROPOSED RULES Water programs:

Oil pollution prevention; spill prevention, control, and countermeasure rule requirements, 58378-58445 E7-19701 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives: Rolls-Royce plc, 58267-58268 E7-20242 FCC Federal Communications Commission NOTICES Radio broadcasting: NCE FM new station applications in October 12-19, 2007 window; application limit, 58299-58300 E7-20300 FDIC Federal Deposit Insurance Corporation NOTICES Meetings;

Sunshine Act, 58300-58301 E7-20175 Federal Highway Federal Highway Administration NOTICES Safe, Accountable, Flexible, Efficient Transportation Equity Act; implementation: Information sharing specifications and data exchange formats, 58347-58359 E7-20273 Federal Motor Federal Motor Carrier Safety Administration NOTICES Driver qualifications; vision requirement exemptions, 58359-58360 E7-20204 Motor carrier safety standards: Driver qualifications; diabetes exemptions, 58360-58362 E7-20206 Driver qualifications; vision requirement exemptions, 58362-58365 E7-20208 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies:

Formations, acquisitions, and mergers, 58301 E7-20247 Permissible nonbanking activities, 58301 E7-20248 FTC Federal Trade Commission NOTICES Prohibited trade practices: Elation Therapy, Inc., 58301-58302 E7-20269 Green Willow Tree LLC, et al., 58302-58303 E7-20272 Health Science International, Inc., et al., 58304-58305 E7-20277 Progesterone Advocates Network, 58305-58306 E7-20276 Springboard and Pro Health Labs, 58306-58307 E7-20275 Women's Menopause Health Center, 58307-58308 E7-20271 Federal Transit Federal Transit Administration NOTICES Grants and cooperative agreements; availability, etc.:

Alternative Transportation in Parks and Public Lands Program, 58365-58370 E7-20213 Fish Fish and Wildlife Service RULES Migratory bird hunting: Federal Indian reservations, off-reservation trust lands, and ceded lands, 58452-58463 E7-20240 PROPOSED RULES Migratory bird hunting: Alaska; 2008 subsistence harvest regulations, 58274-58279 E7-20243 NOTICES Endangered and threatened species permit applications, 58320 E7-20234 Marine mammal permit applications, determinations, etc., 58320-58321 E7-20233 E7-20236 Reports and guidance documents; availability, etc.:

National Wildlife Refuge System— Mosquito and mosquito-borne disease management policy, 58321-58333 E7-20201 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 58309-58310 E7-20291 Meetings: Pediatric Advisory Committee, 58310-58312 E7-20302 E7-20304 Reports and guidance documents; availability, etc.: Antibacterial drug products; noninferiority studies to support approval, 58312 E7-20282 Dietary supplements; adverse event reporting and recordkeeping; industry guidance, 58313-58315 07-5074 Nonprescription human drug products marketed without application approval; adverse event reporting and industry guidance, 58316-58317 07-5073 Forest Forest Service NOTICES Federal Lands Recreation Enhancement Act; implementation:

New site fees, 58284-58285 E7-20232 GSA General Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 58308-58309 E7-20255 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Food and Drug Administration See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services Housing Housing and Urban Development Department PROPOSED RULES HUD program requirements; waivers:

Pet ownership for the elderly and persons with disabilities, 58448-58449 E7-20196 NOTICES Agency information collection activities; proposals, submissions, and approvals, 58319-58320 E7-20195 Indian Indian Affairs Bureau NOTICES Tribal-State Compacts approval; Class III (casino) gambling: Laguna Pueblo, NM, 58333 E7-20197 Industry Industry and Security Bureau NOTICES Meetings: Sensors and Instrumentation Technical Advisory Committee, 58285-58286 07-5067 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Park Service See Reclamation Bureau IRS Internal Revenue Service RULES Income taxes:

Qualified small business stock; deferral of sale gains by partnerships and their partners Correction, 58375 Z7-15948 NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-20186 58371-58373 E7-20190 E7-20192 International International Trade Administration NOTICES Antidumping: Corrosion-resistant carbon steel flat products from— Korea, 58286 E7-20261 U.S. Electronic Education Fairs, China and India; video contest, 58287-58288 E7-20265 *Applications, hearings, determinations, etc.:* Northwestern University et al., 58286 E7-20262 University of— Oklahoma et al., 58286-58287 E7-20263 International International Trade Commission NOTICES Import investigations:

Hard disk drives and components thereof, and components containing same, 58335-58336 E7-20199 Joint Joint Board for Enrollment of Actuaries NOTICES Meetings: Actuarial Examinations Advisory Committee, 58283 E7-20184 Labor Labor Department See Mine Safety and Health Administration Land Land Management Bureau NOTICES Meetings: Resource Advisory Councils— Boise and Twin Falls District, 58333-58334 E7-20226 Mine Mine Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 58336-58338 E7-20237 E7-20238 E7-20239 National Credit National Credit Union Administration RULES Credit unions:

Management official interlocks; threshold change, 58248-58249 E7-20266 National Highway National Highway Traffic Safety Administration PROPOSED RULES Motor vehicle theft prevention standards: Passenger motor vehicle theft data (2005 CY), 58268-58274 07-5022 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Gulf of Alaska groundfish, 58261-58262 07-5066 West Coast States and Western Pacific fisheries— Highly migratory species, 58258-58259 E7-20225 Precious corals, 58259-58261 E7-20228 PROPOSED RULES Fishery conservation and management:

Northeastern United States fisheries— Northeast multispecies, 58280-58282 E7-20279 Marine mammals: Scientific research and enhancement activities— Permits; issuance criteria, 58279-58280 E7-20229 NOTICES Marine mammal permit applications, determinations, etc., 58288-58289 E7-20231 Marine mammals: Incidental taking; authorization letters, etc.— Eglin Air Force Base, FL; Naval Explosive Ordinance Disposal School training operations; Atlantic bottlenose and spotted dolphins, 58290-58293 E7-20230 U.S.

Navy; Surveillance Towed Array Sensor System Low Frequency Active sonar operation, 58289-58290 E7-20227 Meetings: Gulf of Mexico Fishery Management Council, 58293-58294 E7-20168 North Pacific Fishery Management Council, 58294 E7-20170 Pacific Fishery Management Council, 58294 E7-20169 South Atlantic Fishery Council, 58295 E7-20167 National Park National Park Service NOTICES National Register of Historic Places; pending nominations, 58334-58335 E7-20274 National Science National Science Foundation NOTICES Meetings:

President's Committee on National Medal of Science, 58338 E7-20202 NRCS Natural Resources Conservation Service NOTICES Environmental statements; availability, etc.: Sandy Urban Fish Pont/Park Project, UT, 58285 E7-20198 Nuclear Nuclear Regulatory Commission NOTICES Reports and guidance documents; availability, etc.: Digital systems; approaches for using traditional probabilistic risk assessment methods, 58338-58339 E7-20301 Pension Pension Benefit Guaranty Corporation RULES Single-employer plans:

Allocation of assets— Benefits payable in terminated plans; interest assumptions for valuing and paying benefits, 58249-58250 E7-20270 NOTICES Single-employer plans: Interest rates and assumptions, 58339-58340 E7-20268 Personnel Personnel Management Office RULES Federal Employees Dental and Vision Insurance Program: Program administration and explanation of rules, 58243-58248 E7-20193 PROPOSED RULES Absence and leave: Transference of donated annual leave from an agency's voluntary leave bank program to an emergency leave program, 58263-58266 E7-20205 Postal Postal Service RULES Organization and administration:

Purchasing of property and services, 58251-58258 E7-20267 Presidential Presidential Documents PROCLAMATIONS *Special observances:* General Pulaski Memorial Day (Proc. 8189), 58465-58468 07-5108 Reclamation Reclamation Bureau NOTICES Meetings: Yakima River Basin Conservation Advisory Group, 58335 07-5059 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 58340-58341 E7-20215 Meetings; Sunshine Act, 58341 E7-20281 Self-regulatory organizations; proposed rule changes:

Chicago Board Options Exchange, Inc., 58341-58344 E7-20216 New York Stock Exchange LLC, 58344-58345 E7-20214 Sentencing Sentencing Commission, United States See United States Sentencing Commission Social Social Security Administration NOTICES Meetings: Ticket to Work and Work Incentives Advisory Panel, 58346 E7-20245 State State Department NOTICES Culturally significant objects imported for exhibition: Lucien Freud: The Painter's Etchings, 58346-58347 E7-20260 Substance Substance Abuse and Mental Health Services Administration NOTICES Organization, functions, and authority delegations:

Office of Program Services, 58317-58318 07-5060 Surface Surface Transportation Board NOTICES Railroad services abandonment: Kaw River Railroad, Inc., 58370-58371 E7-20113 Thrift Thrift Supervision Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 58373-58374 E7-20218 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration See Federal Transit Administration See National Highway Traffic Safety Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service See Thrift Supervision Office MISSING FOR:

U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 58318-58319 E7-20244 U.S. Sentencing United States Sentencing Commission NOTICES Sentencing guidelines and policy statements for Federal courts, 58345-58346 E7-20264 Separate Parts In This Issue Part II Environmental Protection Agency, 58378-58445 E7-19701 Part III Housing and Urban Development Department, 58448-58449 E7-20196 Part IV Interior Department, Fish and Wildlife Service, 58452-58463 E7-20240 Part V Executive Office of the President, Presidential Documents, 58465-58468 07-5108 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 198 Monday, October 15, 2007 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 894 RIN 3206-AL03 Federal Employees Dental and Vision Insurance Program AGENCY: Office of Personnel Management. ACTION: Interim rule with request for comments.

SUMMARY: The Office of Personnel Management

(OPM)is issuing interim regulations to administer the Federal Employee Dental and Vision Benefits Enhancement Act of 2004, which was enacted December 23, 2004. This law establishes dental and vision benefits programs for Federal employees, annuitants, and their eligible family members. DATES: Interim rules are effective November 14, 2007. OPM must receive comments on or before December 14, 2007. ADDRESSES: Send written comments to Nataya Battle, Senior Policy Analyst, Center for Employee and Family Support Policy, Strategic Human Resources Policy Division, Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415; or deliver to OPM, Room 3415, 1900 E Street, NW., Washington, DC; or FAX to

(202)606-0633. FOR FURTHER INFORMATION CONTACT: Nataya Battle,

(202)606-1874, or e-mail at *nataya.battle@opm.gov* . SUPPLEMENTARY INFORMATION: Background On December 23, 2004, Public Law 108-496, 118 Stat. 4001, was signed into law. This law established a dental benefits and vision benefits program for Federal employees, annuitants, and their eligible family members. The first effective date of coverage was December 31, 2006. Waiver of Notice of Proposed Rulemaking In accordance with section 553(b)(3)(B) of title 5 of the U.S. Code, I find that good cause exists for waiving the general notice of proposed rulemaking for this rule because general notice of proposed rulemaking is unnecessary and would be contrary to the public interest. By law the Federal Employees Dental and Vision Insurance Program became effective in 2006. Congress and the Administration intended for the Program to be available to enrollees as of the end of 2006, and the rules governing the program are effectively established in the existing contracts that OPM has entered into with the dental and vision carriers pursuant to the FEDVIP law. These interim regulations explain the program rules to affected enrollees and the general public, and will assist the administration of the Program. OPM will accept comment on these interim rules, and will consider changes to the Program for future years. Regulatory Flexibility Act I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects dental and vision benefits of Federal employees and annuitants. Executive Order 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. Federalism We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles, and responsibilities of State, local, or Tribal governments. List of Subjects in 5 CFR Part 894 Administrative practice and procedure, Employee benefit plans, Government employees, Reporting and recordkeeping requirements, Retirement. U.S. Office of Personnel Management. Linda M. Springer, Director. For the reasons stated in the Preamble, OPM is adding part 894 to title 5, Code of Federal Regulations, as follows: PART 894—FEDERAL EMPLOYEES DENTAL AND VISION INSURANCE PROGRAM Subpart A—Administration and General Provisions Sec. 894.101 Definitions. 894.102 If I have a preexisting dental or vision condition, may I join FEDVIP? 894.103 How do I enroll? 894.104 Who makes enrollment decisions? 894.105 Who may correct an error in my enrollment? Subpart B—Coverage and Types of Enrollment 894.201 What types of enrollments are available under FEDVIP? 894.202 If I enroll for self plus one, may I decide which family member to cover? 894.203 If I have a self plus one enrollment, when may I change which family member I want to cover or change to self only? 894.204 May I be enrolled in more than one dental or vision plan at a time? Subpart C—Eligibility 894.301 Am I eligible to enroll in FEDVIP? 894.302 What is an excluded position? 894.303 What happens to my enrollment if I transfer to an excluded position? 894.304 Am I eligible to enroll if I'm retired or receiving workers' compensation? 894.305 Am I eligible to enroll if I am a former spouse receiving an apportionment of annuity? 894.306 Are foster children eligible as family members? 894.307 Are disabled children age 22 or over eligible as family members? Subpart D—Cost of Coverage 894.401 How do I pay premiums? 894.402 Do the premiums I pay reflect the cost of providing benefits? 894.403 Are FEDVIP premiums paid on a pre-tax basis? 894.404 May I opt out of premium conversion? 894.405 What happens if I go into nonpay status or if my pay/annuity is insufficient to cover the allotments? Subpart E—Enrolling and Changing Enrollment 894.501 When may I enroll? 894.502 What are the Qualifying Life Events

(QLEs)that allow me to enroll? 894.503 Are belated enrollments or changes allowed? 894.504 When is my enrollment effective? 894.505 Are retroactive premiums paid with pre-tax dollars (premium conversion)? 894.506 How often will there be open seasons? 894.507 After I'm enrolled, may I change from one dental or vision plan or plan option to another? 894.508 When may I increase my type of enrollment? 894.509 What are the QLEs that are consistent with increasing my type of enrollment? 894.510 When may I decrease my type of enrollment? 894.511 What are the QLEs that are consistent with decreasing my type of enrollment? 894.512 What happens if I leave Government and then return? Subpart F—Termination or Cancellation of Coverage 894.601 When does my FEDVIP coverage stop? 894.602 May I cancel my enrollment at any time? 894.603 Is there an extension of coverage and right to convert when my coverage stops or when a covered family member loses eligibility? Subpart G—Annuitants and Compensationers 894.701 May I keep my dental and/or vision coverage when I retire or if I start receiving workers' compensation? 894.702 May I participate in open seasons and make changes to my enrollment as an annuitant or compensationer? 894.703 How long does my coverage as an annuitant or compensationer last? 894.704 What happens if I retire and then come back to work for the Federal Government? Subpart H—Benefits in Underserved Areas 894.801 Will benefits be available in underserved areas? Authority: 5 U.S.C. 8962; 5 U.S.C. 8992. Subpart A—Administration and General Provisions § 894.101 Definitions This part is written as if the reader were an applicant or enrollee. Accordingly, the terms “you,” “your,” etc., refer, as appropriate, to the applicant or enrollee. *Acquiring an eligible child* means one of the following:

(1)Birth of a child;

(2)Adoption of a child;

(3)Acquisition of a foster child as described in § 894.306;

(4)Residence change of the enrollee's stepchild or recognized natural child who moves in with the enrollee;

(5)Establishment of dependency of a recognized natural child as described in § 890.302(b) of this chapter; and

(6)An otherwise eligible child's lose of spouse due to divorce or annulment of marriage, or death. *Administrator* means the entity with which the Office of Personnel Management contracts to manage the enrollment and premium payment process for the Federal Employees Dental and Vision Insurance Program (FEDVIP). *Annuitant* means an individual defined at 5 U.S.C. 8901(3). General, the term means a former employee who is entitled to an immediate annuity or a disability annuity under a retirement system established for employees. The term also generally includes those receiving a survivor annuity due to the death of a Federal employee or annuitant (survivor annuitants) and those receiving compensation from the Office of Workers' Compensation Programs (compensationers). The term does not include former employees who retire with a deferred annuity under 5 U.S.C. 8413, or former spouses of annuitants. *Carrier* means a company with which the Office of Personnel Management contracts to provide dental and/or vision benefits. *Child* means one of the following: (1)(i) A child born within marriage;

(ii)An adopted child;

(iii)A stepchild or foster child who lives with the enrollee in a regular parent-child relationship; or

(iv)A recognized natural child.

(2)This definition does not include a grandchild (unless the grandchild meets all the requirements of a foster child as stated in § 894.306).

(3)The child must be unmarried and under age 22. A child age 22 or over is eligible if the child is incapable of self-support because of a physical or mental disability that existed before the child reached age 22. *Compensation* has the same meaning as found under subchapter I of chapter 81 of title 5, United States Code, which is payable because of an on-the-job injury or disease. *Compensationer* means an individual who is receiving compensation and who the Department of Labor determines is unable to return to duty. *Covered position* means a position in which an employee is not excluded from FEDVIP eligibility by law or regulation. *Days* means calendar days. *Dependent* means an unmarried child who is living with or receiving regular and substantial support from the enrollee. *Employee* means an individual defined in 5 U.S.C. 8901. For the purposes of this subpart, the term employee additionally means an employee of the United States Postal Service and an employee of the District of Columbia courts. *Enrollment reconsideration* means the carriers' administrative review of its initial enrollment decision to determine if it followed the law and regulations correctly in making the initial decision concerning FEDVIP eligibility. *Family member* means a spouse (including a spouse under a valid common law marriage) and/or unmarried dependent child(ren). *OPM* means the Office of Personnel Management. *OWCP* means the Office of Workers' Compensation Programs, U.S. Department of Labor. *Premium conversion* means the payment of FEDVIP premiums using pre-tax dollars. See § 892.102 of this chapter for a discussion of how premium conversion works. *QLE* means a qualifying life event. *Recognized natural child* means a biological child born outside of marriage. A recognized natural child is an eligible family member if the child lives with the enrollee or receives financial support from the enrollee. *Regular parent-child relationship* means that the enrollee is exercising parental authority, responsibility, and control over the child; is caring for, supporting the child; and is making the decisions about the child's education and medical care. *Type of enrollment* means one of the following:

(1)Self only;

(2)Self plus one; or

(3)Self and family. § 894.102 If I have a pre-existing dental or vision condition, may I join FEDVIP? Yes. Pre-existing conditions do not exclude you from coverage under FEDVIP. Carriers may not deny an individual the right to enroll solely because of a preexisting dental or vision condition. § 894.103 How do I enroll? You may enroll through an Administrator contracted by OPM to facilitate the enrollment process. Your Federal agency, retirement system, or OWCP office will advise you of the enrollment process available to you. § 894.104 Who makes enrollment decisions and reconsiderations? The carriers' make enrollment decisions and the carriers review requests for reconsideration of an enrollment decision. The carrier's initial enrollment decision denying enrollment or an opportunity to change coverage must be in writing and must inform you about your right to reconsideration. § 894.105 Who may correct an error in my enrollment?

(a)The Administrator may correct administrative errors about the processing of your enrollment or changes in enrollment.

(b)OPM may order correction of an administrative error if it receives evidence that it would be against equity (fairness) and good conscience not to order the correction. This decision is made at the discretion of OPM and is not subject to review.

(c)If the correction gives you retroactive coverage, you must pay the premiums for all periods of the retroactive coverage. These premiums will not be on a pre-tax basis (they are not subject to premium conversion). Subpart B—Coverage and Types of Enrollment § 894.201 What types of enrollments are available under FEDVIP? FEDVIP has three types of enrollment:

(a)Self only, which covers only the enrolled employee or annuitant;

(b)Self plus one, which covers the enrolled employee or annuitant plus one eligible family member; and

(c)Self and family, which covers the enrolled employee or annuitant and all eligible family members. § 894.202 If I enroll for self plus one, may I decide which family member to cover? Yes, if you enroll for self plus one, you must state at the time you enroll which eligible family member you want to cover under your enrollment. § 894.203 If I have a self plus one enrollment, when may I change which family member I want to cover or change to self only? You may change your covered family member under a self plus one enrollment or change to self only coverage in the following situations:

(a)During the annual open season;

(b)If your covered family member dies during the year; or

(c)If your covered family member loses eligibility during the year. § 894.204 May I be enrolled in more than one dental or vision plan at a time? You may be enrolled in a FEDVIP dental plan and a separate FEDVIP vision plan at the same time. But no one may enroll or be covered as a family member in a FEDVIP dental or vision plan if he or she is covered under another person's FEDVIP dental or vision self plus one or self and family enrollment, except as provided under § 890.302 (a)(2) through

(4)of this chapter, with respect to dual enrollments. Subpart C—Eligibility § 894.301 Am I eligible to enroll in the FEDVIP? You are eligible if you meet the definition of *employee* in 5 U.S.C. 8901(1), unless you are in an excluded position. You are eligible if you are an employee of the United States Postal Service or the District of Columbia courts. § 894.302 What is an excluded position? Excluded positions are described in 5 U.S.C. 8901(1)(i) and 5 CFR 890.102(c), except that employees of the United States Postal Service and District of Columbia courts are not excluded positions. You are in an excluded position if you are:

(a)An employee of a corporation supervised by the Farm Credit Administration, if private interests elect or appoint a member of the board of directors.

(b)An employee who is not a citizen or national of the United States and your permanent duty station is outside the United States. *Exception:* You are eligible if you met the definition of employee on September 30, 1979, by service in an Executive agency, the United States Postal Service, or the Smithsonian Institution in the area that was then known as the Canal Zone.

(c)An employee of the Tennessee Valley Authority.

(d)An individual first employed by the Government of the District of Columbia on or after October 1, 1987, except employees of the District of Columbia Courts and those employees defined at § 890.102(c)(8) of this chapter.

(e)Serving under an appointment limited to 1 year or less. *Exceptions:* You are eligible if:

(1)You are an acting postmaster;

(2)You are a Presidential appointee appointed to fill an unexpired term;

(3)You are an employee with a provisional appointment, as defined in § 316.401 and § 316.403 of this chapter; or

(4)You have completed 1 year of current continuous employment, excluding any break in service of 5 days or less.

(f)You are expected to work fewer than 6 months in each year. *Exception:* You are eligible if you are employed under an OPM-approved career-related work-study program under Schedule B. To qualify, your work-study program must last at least 1 year, and you must be expected to be in pay status for at least one-third of the total period of time from the date of your first appointment to the date you complete the work-study program.

(g)An intermittent employee (a non-full-time employee without a prearranged regular tour of duty).

(h)A beneficiary or patient employee in a Government hospital or home.

(i)Paid on a contract or fee basis. *Exception:* You are eligible if you are a United States citizen, and you are appointed by a contract between you and the Federal employing authority. To qualify, your contract must require your personal service, and you must be paid on the basis of units of time.

(j)Paid on a piecework basis. *Exception:* You are eligible if your work schedule provides for full-time or part-time service, and you have a regularly scheduled tour of duty.

(k)The following positions are not excluded positions:

(1)An employee appointed to perform “part-time career employment,” as defined in section 3401(2) of title 5, U.S.C., and 5 CFR part 430, subpart B; or

(2)An employee serving under an interim appointment established under § 772.102 of this chapter. § 894.303 What happens to my enrollment if I transfer to an excluded position?

(a)If you have FEDVIP coverage and you transfer to a position excluded under § 894.302(a) through (d), your enrollment stops.

(b)If you have FEDVIP coverage and you transfer to a position excluded under § 894.302(e) through

(j)with no break in service of more than 3 days, your enrollment is not affected. If you have a break in service of more than 3 days, your enrollment stops.

(c)If you did not elect to enroll in FEDVIP and then transfer to an excluded position, you lose all rights to enroll at that time. § 894.304 Am I eligible to enroll if I'm retired or receiving workers' compensation? If you are retired, receiving workers' compensation, or are a survivor annuitant, you are eligible if you meet the definition of annuitant in 5 U.S.C. 8901(3). § 894.305 Am I eligible to enroll if I am a former spouse receiving an apportionment of annuity? No. Former spouses receiving an apportionment of annuity are not eligible to enroll in FEDVIP. § 894.306 Are foster children eligible as family members? Yes, foster children may be eligible for coverage as family members under FEDVIP. § 894.307 Are disabled children age 22 or over eligible as family members? A child age 22 or over is an eligible family member if the child is incapable of self-support because of a physical or mental disability that existed before the child reached age 22. Subpart D—Cost of Coverage § 894.401 How do I pay premiums?

(a)Employees pay premiums through payroll allotments.

(b)Annuitants and survivor annuitants pay premiums through annuity allotments.

(c)Compensationers pay premiums through allotments from compensation payments.

(d)In limited circumstances, individuals may make direct premium payments. See § 894.405. § 894.402 Do the premiums I pay reflect the cost of providing benefits? The premiums you pay shall reasonably and equitably reflect the cost of the benefits provided. § 894.403 Are FEDVIP premiums paid on a pre-tax basis?

(a)Your FEDVIP premiums are paid on a pre-tax basis (called premium conversion) if you are an active employee, your salary is sufficient to make the premium allotments, and your agency is able to make pre-tax allotments.

(b)Your FEDVIP premiums are not paid on a pre-tax basis if:

(1)You are an employee in nonpay status or an employee whose salary is not high enough to make premium allotments, or your agency is unable to make pre-tax allotments;

(2)You are an annuitant, a survivor annuitant, or a compensationer;

(3)Your enrollment change was made effective retroactively which resulted in additional premium withholdings, unless it is as a result of birth or adoption of a child .

(4)You have been approved to pay premiums directly to the Administrator. § 894.404 May I opt out of premium conversion? No, all enrolled employees whose salary is sufficient to make premium allotments and whose agency is able to make pre-tax allotments must participate in premium conversion. § 894.405 What happens if I go into nonpay status or if my pay/annuity is insufficient to cover the allotments?

(a)If your pay, annuity, or compensation is too low to cover the premium allotments, or if you go into a nonpay status, contact the Administrator to arrange to pay your premiums directly to the Administrator.

(b)If you do not make the premium payments, your FEDVIP coverage will stop. You will not be able to reenroll until the next open season after:

(1)You are in pay status; or

(2)Your pay is sufficient to make the premium allotments. Subpart E—Enrollment and Changing Enrollment § 894.501 When may I enroll? You may enroll:

(a)During the annual open season;

(b)Within 60 days after you first become eligible as:

(1)A new employee;

(2)A previously ineligible employee who transfers to a covered position; or

(3)A new survivor annuitant, if not already covered under FEDVIP.

(c)Within 60 days of when you return to service following a break in service of at least 30 days; or

(d)Within 60 days of a QLE that allows you to enroll. § 894.502 What are the Qualifying Life Events

(QLEs)that allow me to enroll?

(a)You or an eligible family member lose other dental/vision coverage;

(b)Your annuity or compensation is restored after having been terminated; or

(c)You return to pay status after being on leave without pay due to deployment to active military duty. § 894.503 Are belated enrollments or changes allowed?

(a)The time limit for enrolling or changing your enrollment may be extended up to 3 months after the date you became newly eligible or had a QLE or after the end of an open season. To qualify, you must demonstrate to the carrier that you were not able to enroll or change your enrollment on time for reasons beyond your control.

(b)If the carrier allows you to make a belated enrollment or enrollment change, you must enroll or change within 30 days after the carrier notifies you of its determination. § 894.504 When is my enrollment effective?

(a)Open season enrollments are effective on the date set by OPM.

(b)If you enroll when you first become eligible your enrollment is effective the 1st day of the pay period following the one in which the Administrator receives your enrollment, but no earlier than December 31, 2006. (c)(1) A belated open season enrollment is effective retroactive to the date it would have been effective if you had made a timely enrollment or request for a change.

(2)Any other belated enrollment or change is effective retroactive to the 1st day of the pay period following the one in which you became newly eligible or the date of your QLE.

(3)You are responsible for any retroactive premiums due to a belated enrollment or request for a change. § 894.505 Are retroactive premiums paid with pre-tax dollars (premium conversion)? Retroactive premiums are not paid under premium conversion, except when you are changing your enrollment retroactively as a result of birth or adoption of a child. Any additional withholdings for retroactive premiums that are due must be made with after-tax dollars. The Administrator will bill you directly for any retroactive premiums that must be paid with after-tax dollars. § 894.506 How often will there be open seasons? There will be an annual open season for FEDVIP at the same time as the annual FEHB Program open season. § 894.507 After I'm enrolled, may I change from one dental or vision plan or plan option to another?

(a)You may change from one dental and/or vision plan or one plan option to another option in that same plan during the annual open season. (b)(1) If you are enrolled in a dental or vision plan with a geographically restricted service area, and you or a covered eligible family member move out of the service area, you may change to a different dental or vision plan that serves that area.

(2)You may make this change at any time before or after the move, once you or a covered eligible family member has a new address.

(3)The enrollment change is effective the first day of the pay period following the pay period in which you make the change.

(4)You may not change your type of enrollment unless you also have a QLE that allows you to change your type of enrollment. § 894.508 When may I increase my type of enrollment?

(a)You may increase your type of enrollment

(1)During the annual open season; or

(2)If you have a QLE that is consistent with increasing your type of enrollment.

(b)Increasing your type of enrollment means going from:

(1)Self only to self plus one;

(2)Self only to self and family; or

(3)Self plus one to self and family.

(c)You may increase your type of enrollment during the time period beginning 31 days before the QLE and ending 60 days after the QLE.

(d)Your new type of enrollment is effective the 1st day of the pay period following the pay period in which you make the change.

(e)You may not change from one dental or vision plan to another, except as stated in § 894.508(b). § 894.509 What are the QLEs that are consistent with increasing my type of enrollment?

(a)Marriage;

(b)Acquiring an eligible child; or

(c)Loss of other dental or vision coverage by an eligible family member. § 894.510 When may I decrease my type of enrollment?

(a)You may decrease your type of enrollment

(1)During the annual open season; or

(2)If you have a QLE that is consistent with decreasing your type of enrollment.

(b)Decreasing your type of enrollment means going from:

(1)Self and family to self plus one;

(2)Self and family to self only; or

(3)Self plus one to self only.

(c)You may decrease your type of enrollment during the time period beginning 31 days before your QLE and ending 60 days after your QLE.

(d)Your new type of enrollment is effective the 1st day of the pay period following the one in which you make the change.

(e)You may not change from one dental or vision plan or option to another, except as stated in § 894.508(b). § 894.511 What are the QLEs that are consistent with decreasing my type of enrollment?

(a)Loss of an eligible family member due to:

(1)Divorce;

(2)Death; or

(3)Loss of eligibility of a previously enrolled child.

(b)Your spouse deploys to active military duty. § 894.512 What happens if I leave Federal Government and then return?

(a)Your FEDVIP coverage terminates at the end of the pay period in which you separate from government service. *Exception:* If you separate for retirement or while in receipt of workers' compensation as defined in § 894.701, your FEDVIP coverage continues. (b)(1) If you return to Federal service after a break in service of fewer than 30 days, and you were not previously enrolled in FEDVIP, you may not enroll until the next open season or unless you have a QLE that allows you to enroll.

(2)If you return to Federal service after a break in service of fewer than 30 days, and you were previously enrolled in FEDVIP, you may reenroll in the same plan(s) and plan option and with the same type of enrollment you had before you separated. *Exceptions:*

(i)If you were enrolled in a dental or vision plan with a restricted geographic service area, and you have since moved out of the plan's service area, you may change to a different dental or vision plan that serves that area.

(ii)If you have since gained or lost an eligible family member, you may change your type of enrollment consistent with the change in the number of eligible family members.

(3)If you return to Federal service as a new hire after a break in service of 30 days or more, you may enroll if you were not previously enrolled, change your dental or vision plan, and/or change your type of enrollment. Subpart F—Termination or Cancellation of Coverage § 894.601 When does my FEDVIP coverage stop?

(a)If you no longer meet the definition of an eligible employee or annuitant, your FEDVIP coverage stops at the end of the pay period in which you were last eligible.

(b)If you go into a period of nonpay or insufficient pay, and you do not make direct premium payments, your FEDVIP coverage stops at the end of the pay period for which your agency, retirement system, or OWCP last made a premium allotment from your pay.

(c)If you are making direct premium payments, and you stop making the payments, your FEDVIP coverage stops at the end of the pay period for which you last made a payment.

(d)If you cancel your enrollment during an open season, your FEDVIP coverage stops at midnight of the day before the effective date of an open season change as set by OPM.

(e)If you are enrolled with a combination dental and vision carrier with a restricted service area, and you move outside the carrier's service area to a service area that does not offer a combination carrier and you change to a dental only or vision only carrier, your existing combination plan coverage will stop at midnight of the day before the effective date of your new plan coverage.

(f)If your FEDVIP carrier discontinues participation in the program at the end of the contract year, then you must change to another carrier during the open season, unless OPM establishes a different time. If the discontinuance is at a time other than the end of the contract year, OPM will establish a time and effective date for you to change your carrier. If you do not change your carrier within the time set by OPM, your coverage will stop at midnight of the day before the effective date set by OPM for coverage with another carrier. § 894.602 May I cancel my enrollment at any time? No. You may only cancel your enrollment during an open season. *Exceptions:* You may cancel your dental and/or vision enrollment if you transfer to an eligible position with a Federal agency that provides dental and/or vision coverage with 50 percent or more employer-paid premiums. You may also cancel upon deployment to active military duty. These cancellations will become effective at the end of the pay period that you submit your request. § 894.603 Is there an extension of coverage and right to convert when my coverage stops or when a covered family member loses eligibility? No. There is no extension of coverage or right to convert to an individual policy or Temporary Continuation of Coverage

(TCC)when your FEDVIP coverage stops or when a family member loses eligibility under the Program. Subpart G—Annuitants and Compensationers § 894.701 May I keep my dental and/or vision coverage when I retire or start receiving workers' compensation?

(a)Your FEDVIP coverage continues if you retire on an immediate annuity or on a disability annuity, or start receiving compensation from OWCP.

(b)If you retire on a Minimum Retirement Age +10 annuity that you elect to postpone in accordance with 5 U.S.C. 8412(g), your FEDVIP coverage will stop when you separate from service. However, you may enroll again within 60 days of when your annuity starts.

(c)If you retire on a deferred annuity in accordance with 5 U.S.C. 8413, your FEDVIP coverage stops and you are not eligible to enroll. § 894.702 May I participate in open season and make changes to my enrollment as an annuitant or compensationer? Yes. Annuitants and compensationers may participate in open season and make enrollment changes under the same circumstances as active employees. § 894.703 How long does my coverage as an annuitant or compensationer last? Your coverage as an annuitant or compensationer continues as long as you continue receiving an annuity or compensation and pay your premiums, unless you cancel your coverage during an open season or terminate coverage due to insufficient annuity or compensation. § 894.704 What happens if I retire and then come back to work for the Federal Government?

(a)If you have FEDVIP coverage as an annuitant, and you become reemployed in an eligible position in Federal service, you must contact the Administrator so it can send the request for allotments to your agency so your agency can start making the allotments from your pay.

(b)If you did not enroll in FEDVIP coverage as an annuitant and become reemployed in an eligible Federal position, you have 60 days to enroll in FEDVIP.

(c)If you enroll as an employee the Administrator will stop sending requests for allotments from your annuity. Subpart H—Benefits in Underserved Areas § 894.801 Will benefits be available in underserved areas?

(a)Dental and vision plans under FEDVIP will include underserved areas in their service areas and provide benefits to enrollees in underserved areas.

(b)In any area where a FEDVIP dental or vision plan does not meet OPM access standards, including underserved areas, enrollees may receive services from non-network providers.

(c)Contracts under FEDVIP shall include access standards as defined by OPM and payment levels for services to non-network providers in areas that do not meet access standards. [FR Doc. E7-20193 Filed 10-12-07; 8:45 am] BILLING CODE 6325-39-P NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 711 Management Official Interlocks Threshold Change AGENCY: National Credit Union Administration (NCUA). ACTION: Final rule. SUMMARY: The NCUA is amending its management interlocks rule to conform it to a change the Financial Services Regulatory Relief Act of 2006 (FSRAA) made in the dollar threshold that triggers the prohibition on management officials serving at unaffiliated depository organizations. This final rule changes the threshold from $20 million to $50 million. DATES: This rule is effective as of October 15, 2007. FOR FURTHER INFORMATION CONTACT: Annette Tapia, Staff Attorney, Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428 or telephone:

(703)518-6540. SUPPLEMENTARY INFORMATION: A. Background The Depository Institution Management Interlocks Act (Interlocks Act) prohibits individuals from simultaneously serving as a management official at two unaffiliated depository institutions or their holding companies (collectively, depository organizations) under certain circumstances. 12 U.S.C. 3201 *et seq.* Section 203(1) of the Interlocks Act prohibits interlocks between unaffiliated depository organizations if each depository organization or its affiliate has an office in the same relevant metropolitan statistical area (RMSA prohibition), unless each of the depository organizations or affiliates involved has total assets below a specified threshold. Before enactment of FSRRA, this asset threshold was $20 million; however, section 610 of FSRRA amended the Interlocks Act by raising this asset threshold to $50 million, effective October 13, 2006. This final rule tracks changes the other federal financial institution regulators have made in their management interlocks rules. 72 FR 38753 (July 16, 2007). B. Regulatory Changes NCUA is amending § 711.3(b) to implement section 610 of FSRRA. Specifically, the final rule modifies the RMSA prohibition to allow a management official of one depository organization to serve as a management official of an unaffiliated depository organization that has an office in the same RMSA as the first organization if each of the depository organizations or affiliates involved has total assets of less than $50 million. C. Regulatory Procedures Final Rule Under the Administrative Procedure Act Generally, the Administrative Procedure Act

(APA)requires a federal agency to provide the public with notice and the opportunity to comment on agency rulemakings. The amendment in this rule is not substantive but technical in that it merely incorporates into NCUA's regulations a statutory increase in the threshold. The APA permits an agency to forego the notice and comment period under certain circumstances, such as when a rulemaking is technical and not substantive. For these reasons, NCUA finds good cause that notice and public comment are unnecessary under Section 553(b)(3)(B) of the APA, 5 U.S.C. 553(b)(3)(B), and also finds good cause to dispense with the 30-day delayed effective date requirement under Section 553(d)(3) of the APA. 5 U.S.C. 553(d)(3). The rule will, therefore, be effective upon publication. Regulatory Flexibility Act The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small entities (those credit unions under ten million dollars in assets). This rule changes NCUA's regulation to conform to a statutory change. This rule will not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required. Paperwork Reduction Act NCUA has determined that this rule will not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget. Executive Order 13132 Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order. The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families The NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998). Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the APA. 5 U.S.C. 551. The Office of Management and Budget is currently reviewing this rule as it pertains to SBREFA. List of Subjects in 12 CFR Part 711 Antitrust, Banks, Banking, Credit unions. By the National Credit Union Administration Board on October 9, 2007. Mary Rupp, Secretary of the Board. For the reasons discussed above, NCUA is amending part 711 as follows: PART 711—MANAGEMENT OFFICIAL INTERLOCKS 1. The authority citation for part 711 continues to read as follows: Authority: 12 U.S.C. 1757 and 3201-3208. 2. Section 711.3(b) is amended by removing the number “20” and adding number “50” in its place. [FR Doc. E7-20266 Filed 10-12-07; 8:45 am] BILLING CODE 7535-01-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4022 and 4044 Benefits Payable in Terminated Single-Employer Plans; Allocation of Assets in Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits AGENCY: Pension Benefit Guaranty Corporation. ACTION: Final rule. SUMMARY: The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in November 2007. Interest assumptions are also published on the PBGC's Web site ( *http://www.pbgc.gov* ). DATES: Effective November 1, 2007. FOR FURTHER INFORMATION CONTACT: Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Three sets of interest assumptions are prescribed:

(1)A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to part 4044),

(2)a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to part 4022), and

(3)a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to part 4022). This amendment

(1)adds to Appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during November 2007,

(2)adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during November 2007, and

(3)adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during November 2007. For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.46 percent for the first 20 years following the valuation date and 5.13 percent thereafter. These interest assumptions represent a decrease (from those in effect for October 2007) of 0.05 percent for the first 20 years following the valuation date and 0.05 percent for all years thereafter. The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent no change from those in effect for October 2007. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022). The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible. Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during November 2007, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication. The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866. Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2). List of Subjects 29 CFR Part 4022 Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements. 29 CFR Part 4044 Employee benefit plans, Pension insurance, Pensions. In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows: PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority: 29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344. 2. In appendix B to part 4022, Rate Set 169, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities (percent) i 1 i 2 i 3 n 1 n 2 * * * * * * * 169 11-1-07 12-1-07 3.25 4.00 4.00 4.00 7 8 3. In appendix C to part 4022, Rate Set 169, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities (percent) i 1 i 2 i 3 n 1 n 2 * * * * * * * 169 11-1-07 12-1-07 3.25 4.00 4.00 4.00 7 8 PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 4. The authority citation for part 4044 continues to read as follows: Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362. 5. In appendix B to part 4044, a new entry for November 2007, as set forth below, is added to the table. Appendix B to Part 4044—Interest Rates Used to Value Benefits For valuation dates occurring in the month— The values of i t are: i t for t = i t for t = i t for t = * * * * * * * November 2007 .0546 1-20 .0513 >20 N/A N/A Issued in Washington, DC, on this 10th day of October 2007. Vincent K. Snowbarger, Deputy Director, Pension Benefit Guaranty Corporation. [FR Doc. E7-20270 Filed 10-12-07; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-07-025] Drawbridge Operation Regulations; Charenton Drainage and Navigation Canal, Baldwin, LA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the BNSF Railway Company Swing Bridge across the Charenton Drainage and Navigational Canal, mile 0.4, at Baldwin, St. Mary Parish, LA. This deviation provides for the bridge to remain closed to navigation for 5 days with three hour openings each day to conduct maintenance repairs to the drawbridge. DATES: This deviation is effective from 8 a.m. on October 22, 2007 through 8 p.m. on October 26, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, Hale Boggs Federal Building, Room 1313, 500 Poydras Street, New Orleans, Louisiana 70130-3310 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is

(504)671-2128. The Bridge Administration Branch maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Bart Marcules, Bridge Administration Branch, telephone

(504)671-2128. SUPPLEMENTARY INFORMATION: The BNSF Railway Company has requested a temporary deviation in order to replace or repair a bent shaft, bearings, and housing that are integral to the safe operation of the swing bridge across the Charenton Drainage and Navigational Canal, mile 0.4, at Baldwin, St. Mary Parish, LA. This bridge opens on signal in accordance with 33 CFR 117.5, but this temporary deviation will allow the bridge to remain in the closed-to-navigation position from 8 a.m. on October 22, 2007 through 8 p.m. on October 26, 2007. BNSF will provide an opening from 8 a.m. till 11 a.m. every day starting October 23, 2007. An alternate route is available through the Berwick Locks. The bridge provides 10 feet of vertical clearance in the closed-to-navigation position. Navigation on the waterway consists of tugs with tows, fishing vessels and recreational craft including sailboats and powerboats. Due to prior experience, as well as coordination with waterway users, and an alternate route through Berwick Locks it has been determined that this closure will not have a significant effect on these vessels. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: October 2, 2007. David M. Frank, Bridge Administrator. [FR Doc. E7-20207 Filed 10-12-07; 8:45 am] BILLING CODE 4910-15-P POSTAL SERVICE 39 CFR Part 601 Purchasing of Property and Services AGENCY: Postal Service. ACTION: Final rule. SUMMARY: The Postal Service TM is making several minor revisions to its regulations governing the purchasing of property and services to comply with certain findings and suggestions of the Government Accountability Office, and to clarify a variety of procedural matters. DATES: This final rule is effective November 14, 2007. FOR FURTHER INFORMATION CONTACT: Paul McGinn,

(202)268-4638, or Syvera O'Pharrow,

(202)268-8110. SUPPLEMENTARY INFORMATION: The Postal Service is making several minor revisions to its regulations governing the purchasing of property and services in order to

(1)comply with some of the findings in the Government Accountability Office's

(GAO)report, GAO-06-190, *U.S. Postal Service: Purchasing Changes Seem Promising, but Revisions to Ombudsman Position are Needed* , and

(2)clarify some procedural matters. In its report, GAO stated that the Postal Service's Ombudsman regulatory provisions and guidance contained in 39 CFR Part 601 were inconsistent with leading Ombudsman principles and practices. In response, the Postal Service benchmarked its supplier disagreement resolution process against a variety of private sector companies, and found that the process conforms to leading business principles and practices. We do agree with GAO that the use of the term Ombudsman is inaccurate, however, and therefore have changed the term to Supplier Disagreement Resolution Official (SDR Official). In addition, several minor procedural changes have been made to the regulations and business processes published in May of 2005, and these are explained in more detail below. Explanation of Changes Section 601.100 *Purchasing Policy* This section has been revised for clarity, specifically by stating that the Postal Service acquires property and services pursuant to the authority of 39 U.S.C. 410. Section 601.101 *Effective Date* This section has been revised to state that the revised regulations will take effect thirty days after publication. Section 601.102 *Revocation of Prior Purchasing Regulations* The reference to section 601.103 has been deleted due to a revision to that section. Section 601.103 *Applicability and Coverage* This section has been revised to state that these regulations apply to all Postal Service acquisitions of property (except real property) and services. Section 601.104 *Postal Purchasing Authority* This section has not been changed. Section 601.105 *Business Relationships* In paragraph (a), the last sentence of the text has been revised to make it clear that the Postal Service reserves the right to decline to accept or consider proposals from a person or organization when that person or organization fails to meet reasonable business expectations. Previous section 601.106 has been revised and included in this section as a new paragraph (b). The first sentence in the new paragraph

(b)has been revised for clarity by indicating under what circumstances the Postal Service reserves the right to decline to accept or consider proposals. Paragraph

(c)has been revised to state that written notices must be by certified mail, return receipt requested. Subparagraph (c)(4) has been revised to require that the written notice to the supplier establish the period of time during which the decision to decline to accept or consider proposals is in effect. Paragraph

(d)has been revised to provide a cross-reference to section 601.108. Section 601.106 *Reserved* As discussed above, the previous text in this section has been combined into a new paragraph

(b)of section 601.105. Section 601.107 *Initial Disagreement Resolution* This section includes a new paragraph

(a)“Definitions”, that provides definition for certain terms that appear throughout the regulations. Paragraph

(b)has been revised to state that all disagreements lodged with the contracting officer must be in writing and to describe the methods in which a person or organization may lodge a business disagreement with the contracting officer and to delineate the timeframe a person or organization has to lodge a disagreement. This section has also been revised to state that the contracting officer's manager may help to resolve the disagreement and that at the conclusion of the ten day resolution period, the contracting officer must communicate, in writing, to the supplier his or her resolution of the disagreement. This section has been further revised by moving the text discussing disagreements not resolved within 10 days to section 601.108(a). The text regarding alternative dispute resolution has been retained and codified in paragraph (c). Section 601.108 *SDR Official Disagreement Resolution* The Ombudsman has been given a new title: Supplier Disagreement Resolution Official (“SDR Official”), and this term is used throughout the regulations. Text regarding disagreements not resolved within 10 days has been moved from section 601.107 to this section under paragraph (a). Because neither 39 U.S.C. 410 nor other public laws apply to the Postal Service's administrative resolution of supplier disagreements, the previous reference to “39 U.S.C. 410, and all other applicable public laws enacted by Congress” has been deleted. The definition of disagreements in paragraph

(b)has been deleted and is now included in the “Definitions” paragraph discussed above. Paragraph

(c)has been expanded to include the address for submitting supplier disagreements. In paragraph (d), new text has been added delineating the timeframes that apply for lodging a disagreement with the SDR Official, and new text has also been added addressing the supplier's filing of a request for an extension of time. Paragraph

(e)has been revised to incorporate guidance on the submission of confidential information. The term “interested parties” now defined in paragraph 601.107(a), replaces “interested persons” throughout section 601.108. Section 601.109 *Contract Claims and Disputes* Paragraph

(a)has been revised to give the supplier the option of using the SDR Official as a mediator for contract performance disagreements prior to bringing a contract claim or dispute under this section. Paragraph (g)(3) has been revised to give the contracting officer the option to request additional information prior to making a decision. Section 601.110 *Payment of Claims* ; Section 601.111 *Interest on Claim Amounts* ; Section 601.112 *Review of Adverse Decisions* These sections have not been changed. Section 601.113 *Debarment, Suspension, and Ineligibility* Paragraph

(a)has been revised to be consistent with the discussion of the same matter in subparagraph (d)(2). The definition of “Affiliate” under subparagraph (b)(1) has been revised to clarify the definition of control. The definition of “Judicial Officer” originally set forth in subparagraph (b)(6) has been deleted. Subparagraph (c)(1) has been revised because the Postal Service no longer distributes a hardcopy of the list of debarred and suspended suppliers to contracting officers; the list is maintained electronically and is available internally on the Postal Service's Supply Management Web site. Subparagraph (c)(2) has been revised because the original regulations only considered hardcopy versions; GSA no longer publishes hardcopies and the list is maintained electronically on GSA's Web site. Subparagraph (d)(2) has been revised to state clearly that the supplier must review the consolidated GSA list in order to exclude suppliers debarred or suspended by the Postal Service from performing part of a Postal Service contract (the Postal Service list is available internally only). Subparagraph (d)(3) has been changed for consistency with the previous subparagraph. The words “insignificant or significant minor service changes” have been added in subparagraph (d)(5); this requires only major service changes to be approved by the vice president of Supply Management. In subparagraph (e)(3) the term “debarring official” has been replaced with the term “vice president of Supply Management” for consistency. A new subparagraph (e)(v) has been included as a basis for debarment. List of Subjects in 39 CFR Part 601 Government procurement, Postal Service. Accordingly, 39 CFR part 601 is revised to read as follows: PART 601—PURCHASING OF PROPERTY AND SERVICES Sec. 601.100 Purchasing policy. 601.101 Effective date. 601.102 Revocation of prior purchasing regulations. 601.103 Applicability and coverage. 601.104 Postal purchasing authority. 601.105 Business relationships. 601.106 Reserved. 601.107 Initial disagreement resolution. 601.108 SDR Official disagreement resolution. 601.109 Contract claims and disputes. 601.110 Payment of claims. 601.111 Interest on claim amounts. 601.112 Review of adverse decisions. 601.113 Debarment, suspension, and ineligibility. Authority: 39 U.S.C. 401, 404, 410, 411, 2008, 5001-5605. § 601.100 Purchasing policy. The Postal Service acquires property and services pursuant to the authority of 39 U.S.C. 410. § 601.101 Effective date. These regulations are effective November 14, 2007. Solicitations issued and resulting contracts entered into prior to that date will be governed by the regulations in effect at the time the solicitation was issued. § 601.102 Revocation of prior purchasing regulations. All previous postal purchasing regulations, including the *Postal Contracting Manual* , *Procurement Manual* , the *Purchasing Manual* (Issues 1, 2 and 3), and procurement handbooks, circulars, and instructions, are revoked and are superseded by the regulations contained in this part. § 601.103 Applicability and coverage. The regulations contained in this part apply to all Postal Service acquisition of property (except real property) and services. § 601.104 Postal purchasing authority. Only the Postmaster General/CEO; the Postal Service's vice president, Supply Management; contracting officers with written statements of specific authority; and others designated in writing or listed in this part have the authority to bind the Postal Service with respect to entering into, modifying, or terminating any contract regarding the acquisition of property, services, and related purchasing matters. The Postal Service's vice president, Supply Management, or his or her designee, may also delegate in writing local buying authority throughout the Postal Service. § 601.105 Business relationships.

(a)*General.* A person or organization wishing to have a continuing business relationship with the Postal Service in purchasing matters is expected to treat the Postal Service in the same manner as it would other valued customers of similar size and importance. The Postal Service reserves the right to decline to accept or consider proposals from a person or organization when that person or organization fails to meet reasonable business expectations or provide a high level of confidence regarding quality, prompt service, and overall professionalism.

(b)*Declining to accept or consider proposals.* The Postal Service may decline to accept or consider proposals when a person or organization exhibits unacceptable conduct or business practices that do not meet reasonable business expectations or does not provide a high level of confidence about the entity's current or future business relations. Unacceptable conduct or business practices include, but are not limited to:

(1)Marginal or dilatory contract performance;

(2)Failure to deliver on promises made in the course of dealings with the Postal Service;

(3)Providing false or misleading information regarding financial condition, ability to perform, or other material matters, including any aspect of performance on a contract; and

(4)Engaging in other questionable or unprofessional conduct or business practices.

(c)*Notice.* If the Postal Service elects to decline to accept or consider proposals from a person or organization, the vice president, Supply Management, or his or her designee, will provide a written notice to the person or organization *by Certified Mail, return receipt requested* , explaining:

(1)The reasons for the decision;

(2)The effective date of the decision;

(3)The scope of the decision;

(4)The period of time the decision will be in effect, (a matter at the Postal Service's discretion consistent with the circumstances); and

(5)The supplier's right to contest the decision.

(d)*Contesting Decisions.* If a person or organization believes the decision not to accept or consider proposals is not merited, it may contest the matter in accordance with § 601.108. The Postal Service may reconsider the matter and, if warranted, rescind or modify the decision to decline to accept or consider proposals. § 601.106 [Reserved] § 601.107 Initial disagreement resolution.

(a)*Definitions.*

(1)*Days.* Calendar days; however, any time period will run until a day which is not a Saturday, Sunday, or legal holiday.

(2)*Disagreements.* All disputes, protests, claims, disagreements, or demands of whatsoever nature arising in connection with the acquisition of property and services within the scope of § 601.103, above, except those:

(i)That arise pursuant to a contract under the Contract Disputes Act under § 601.109;

(ii)That concern debarment, suspension, or ineligibility under § 601.113; or

(iii)That arise out of the non-renewal of transportation contracts containing other provisions for the review of such decisions.

(3)*Interested parties.* Actual or prospective offerors whose direct economic interests would be affected by the award of, or failure to award, the contract.

(4)*Lodge.* A disagreement is lodged on the date it is received by the Contracting Officer or the Supplier Disagreement Resolution Official, as appropriate.

(5)*SDR Official.* The Supplier Disagreement Resolution Official, an individual designated by the Postal Service to perform the functions established under § 601.108.

(b)*Policy.* It is the policy of the Postal Service and in the interest of its suppliers to resolve disagreements by mutual agreement between the supplier and the responsible contracting officer. *All* disagreements arising in connection with the purchasing process must be lodged with the responsible contracting officer in writing via facsimile, e-mail, hand delivery, or U.S. Mail, within ten days of the date the supplier received notification of award or ten days from the date the supplier received a debriefing. During the supplier-contracting officer ten-day resolution period, the responsible contracting officer's management may help to resolve the disagreement. At the conclusion of the ten-day resolution period, the contracting officer must communicate, in writing, to the supplier his or her resolution of the disagreement.

(c)*Alternative dispute resolution.* Alternative dispute resolution

(ADR)procedures may be used, if agreed to by all interested parties. The use of ADR to resolve the disagreement must be considered, regardless of the nature of the disagreement or when it occurred during the purchasing process. If the use of ADR is agreed upon, the ten-day limitation is suspended; if the parties cannot reach an agreement under ADR, the supplier has ten days to lodge its disagreement with the SDR Official. § 601.108 SDR Official disagreement resolution.

(a)*General.* From time to time, disagreements may arise between suppliers, potential suppliers, and the Postal Service regarding awards of contracts and related matters that are not resolved as set forth in § 601.107 above. If a disagreement under § 601.107 is not resolved within ten days after it was lodged with the contracting officer, if the use of ADR fails to resolve it at any time, or if the supplier is not satisfied with the contracting officer's resolution of the disagreement, or if the decision not to accept or consider proposals under § 601.105 is contested, the SDR Official is available to provide final resolution of the matter. The Postal Service desires to resolve all such disagreements quickly and inexpensively in keeping with the regulations in this part. In resolving disagreements, non-Postal Service procurement rules or regulations will not govern.

(b)*Scope and applicability.* In order to resolve expeditiously disagreements that are not resolved at the responsible contracting officer level, to reduce litigation expenses, inconvenience, and other costs for all parties, and to facilitate successful business relationships with Postal Service suppliers, the supplier community, and other persons, the following procedure is established as the sole and exclusive means to resolve disagreements. All disagreements will be lodged with and resolved, with finality, by the SDR Official under and in accordance with the sole and exclusive procedure established in this section.

(c)*Lodging a disagreement.* The disagreement must be lodged in writing and must state the factual circumstances relating to it, the scope and outcome of the initial disagreement resolution attempt with the contracting officer, and the remedy sought. The address of the SDR Official is: Room 4130 (Attn: SDR Official), United States Postal Service Headquarters, 475 L'Enfant Plaza, SW., Washington, DC 20260-4130. E-mail Address: *SDROfficial@usps.gov.* Fax Number:

(202)268-6234.

(d)*Lodging timeframes.* If a supplier wishes the SDR Official to consider any of the matters identified in § 601.108(a) disagreements must be lodged with that official within the following timeframes:

(1)Disagreements under § 601.107 not resolved with the contracting officer must be lodged with the SDR Official within twenty days after they were lodged with the contracting officer (unless ADR had been used to attempt to resolve them);

(2)Disagreements under § 601.107 for which ADR had been agreed to be used must be lodged with the SDR Official within ten days after the supplier knew or was informed by the contracting officer or otherwise that the matter was not resolved;

(3)Disagreements under § 601.107 resolved by the contracting officer as to which the supplier is unhappy with the resolution must be lodged with the SDR Official within ten days after the supplier first receives notification of the contracting officer's resolution; and

(4)Contests of decisions under § 601.105 to decline to accept or consider proposals must be lodged with the SDR Official within ten days of the supplier's receipt of the written notice explaining the decision.

(5)The SDR Official may grant an extension of time to lodge a disagreement or to provide supporting information when warranted. Any request for an extension must set forth the reasons for the request, be made in writing, and be delivered to the SDR Official on or before the time to lodge a disagreement lapses.

(e)*Decision process.* The SDR Official will promptly provide a copy of a disagreement to the contracting officer, who will promptly notify other interested parties. The SDR Official will consider a disagreement and any response by other interested parties and appropriate Postal Service officials within a time frame established by the SDR Official. The SDR Official may also meet individually or jointly with the person or organization lodging the disagreement, other interested parties, and/or Postal Service officials, and may undertake other activities in order to obtain materials, information, or advice that may help to resolve the disagreement. The person or organization lodging the disagreement, other interested parties, or Postal Service officials must promptly provide all relevant, nonprivileged materials and other information requested by the SDR Official. If a submission contains trade secrets or other confidential information, it should be accompanied by a copy of the submission from which the confidential matter has been redacted. The SDR Official will determine whether any redactions are appropriate and will be solely responsible for determining the treatment of any redacted materials. After obtaining such information, materials, and advice as may be needed, the SDR Official will promptly issue a written decision resolving the disagreement and will deliver the decision to the person or organization lodging the disagreement, other interested parties, and appropriate Postal Service officials.

(f)*Guidance.* In considering and in resolving a disagreement, the SDR Official will be guided by the regulations contained in this part and all applicable public laws enacted by Congress. Non-Postal Service procurement rules or regulations and revoked Postal Service regulations will not apply or be taken into account in resolving disagreements. Failure of any party to provide requested information may be taken into account by the SDR Official in the decision.

(g)*Binding decision.* A decision of the SDR Official will be final and binding on the person or organization lodging the disagreement, other interested parties, and the Postal Service. However, the person or organization that lodged the disagreement or another interested person may appeal the decision of the SDR Official to a federal court with jurisdiction over such claims, but only on the grounds that the decision was procured by fraud or other criminal misconduct, or was obtained in violation of the regulations contained in this part or an applicable public law enacted by Congress.

(h)*Resolution timeframe.* It is intended that this procedure generally will resolve disagreements within approximately thirty days after the receipt of the disagreement by the SDR Official. The time may be shortened or lengthened depending on the complexity of the issues and other relevant considerations. § 601.109 Contract claims and disputes.

(a)*General.* This section implements the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). If ADR is used, the SDR official may serve as a mediator for contract performance disagreements prior to bringing a contract claim or dispute under this part.

(b)*Policy.* It is the Postal Service's intent to resolve contractual claims and disputes by mutual agreement at the level of an authorized contracting officer whenever possible. In addition, the Postal Service supports and encourages the use of alternative dispute resolution as an effective way to understand, address, and resolve conflicts with suppliers. Efforts to resolve differences should be made before the issuance of a final decision on a claim, and even when the supplier does not agree to use ADR, the contracting officer should consider holding informal discussions between the parties in order to resolve the conflict before the issuance of a final decision.

(c)*Supplier claim initiation.* Supplier claims must be submitted in writing to the contracting officer for final decision. The contracting officer must document the contract file with evidence of the date of receipt of any submission that the contracting officer determines is a claim. Supplier claims must be submitted within 6 years after accrual of a claim unless the parties agreed to a shorter time period. The 6-year time period does not apply to contracts awarded prior to October 1, 1995.

(d)*Postal Service claim initiation.* The contracting officer must issue a written decision on any Postal Service claim against a supplier, within six years after accrual of a claim, unless the parties agreed in writing to a shorter time period. The 6-year time period does not apply to contracts awarded prior to October 1, 1995, or to a Postal Service claim based on a supplier claim involving fraud.

(e)*Certified claims.* Each supplier claim exceeding $100,000 must be accompanied by a certification in accordance with the supplier's contract.

(f)*Misrepresentation or fraud.* When the contracting officer determines that the supplier is unable to support any part of the claim and there is evidence or reason to believe the inability is attributable to either misrepresentation of fact or fraud on the supplier's part, the contracting officer must deny that part of the claim and refer the matter to the Office of Inspector General.

(g)*Decision and appeal* —(1) *Contracting officer's authority.* A contracting officer is authorized to decide or settle all claims arising under or relating to a contract subject to the Contract Disputes Act, except for:

(i)Claims or disputes for penalties or forfeitures prescribed by statutes or regulation that a Federal agency administers; or

(ii)Claims involving fraud.

(2)*Contracting officer's decision.* The contracting officer must review the facts pertinent to the claim, and may obtain assistance from assigned counsel and other advisors, and issue a final decision in writing. The decision must include a description of the claim or dispute with references to the pertinent contract provisions, a statement of the factual areas of agreement and disagreement, and a statement of the contracting officer's decision with supporting rationale.

(3)*Insufficient information.* When the contracting officer cannot issue a decision because the supplier has not provided sufficient information, the contracting officer may request the required information. Further failure to provide the requested information is an adequate reason to deny the claim.

(4)*Furnishing Decisions.* The contracting officer must furnish a copy of the decision to the supplier by Certified Mail TM , return receipt requested, or by any other method that provides evidence of receipt.

(5)*Decisions on claims for $100,000 or less.* If the supplier has asked for a decision within sixty days, the contracting officer must issue a final decision on a claim of $100,000 or less within sixty calendar days of its receipt. The supplier may consider the contracting officer's failure to issue a decision within the applicable time period as a denial of its claim, and may file a suit or appeal on the claim.

(6)*Decisions on certified claims.* For certified claims over $100,000, the contracting officer must either issue a final decision within sixty days of their receipt or notify the supplier within the 60-day period of the time when a decision will be issued. The time period established must be reasonable, taking into account the size and complexity of the claim, the adequacy of the supplier's supporting data, and any other relevant factors.

(7)*Wording of decisions.* The contracting officer's final decision must contain the following paragraph: “This is the final decision of the contracting officer pursuant to the Contract Disputes Act of 1978 and the clause of your contract entitled Claims and Disputes. You may appeal this decision to the Postal Service Board of Contract Appeals by mailing or otherwise furnishing written notice (preferably in triplicate) to the contracting officer within ninety days from the date you receive this decision. The notice should identify the contract by number, reference this decision, and indicate that an appeal is intended. Alternatively, you may bring an action directly in the United States Court of Federal Claims within twelve months from the date you receive this decision.”

(8)*Additional wording for decisions of $50,000 or less.* When the claim or claims denied total $50,000 or less, the contracting officer must add the following to the paragraph: “In taking an appeal to the Board of Contract Appeals, you may include in your notice of appeal an election to proceed under the Board's small claims (expedited) procedure, which provides for a decision within approximately 120 days, or an election to proceed under the Board's accelerated procedure, which provides for a decision within approximately 180 days. If you do not make an election in the notice of appeal, you may do so by written notice anytime thereafter.”

(9)*Additional wording for decisions over $50,000 up to $100,000.* When the claim or claims denied total $100,000 or less, but more than $50,000, the contracting officer must add the following to the paragraph: “In taking an appeal to the Board of Contract Appeals, you may include in your notice of appeal an election to proceed under the Board's accelerated procedure, which provides for a decision within approximately 180 days. If you do not make an election in the notice of appeal, you may do so by written notice anytime thereafter.”

(10)*Information and resources.* Contracting officers must have sufficient information available at the time a final decision is issued on a claim so resolution of an appeal within the period set for an expedited disposition will not be delayed. Once an appeal is docketed, and expedited disposition is elected, contracting officers must devote sufficient resources to the appeal to ensure the schedule for resolution is met. Nothing in this part precludes an effort by the parties to settle a controversy after an appeal has been filed, although such efforts to settle the controversy will not suspend processing the appeal, unless the Board of Contract Appeals so directs. § 601.110 Payment of claims. Any claim amount determined in a final decision to be payable, less any portion previously paid, should be promptly paid to the supplier without prejudice to either party in the event of appeal or action on the claim. In the absence of appeal by the Postal Service, a board or court decision favorable in whole or in part to the supplier must be implemented promptly. In cases when only the question of entitlement has been decided and the matter of amount has been remanded to the parties for negotiation, a final decision of the contracting officer must be issued if agreement is not reached promptly. § 601.111 Interest on claim amounts. Interest on the amount found due on the supplier's claim must be paid from the date the contracting officer received the claim (properly certified, if required) or from the date payment would otherwise be due, if that date is later, until the date of payment. Simple interest will be paid at the rate established by the Secretary of the Treasury for each 6-month period in which the claim is pending. Information on the rate at which interest is payable is announced periodically in the *Postal Bulletin* . § 601.112 Review of adverse decisions. Any party may seek review of an adverse decision of the Board of Contract Appeals in the Court of Appeals for the Federal Circuit or in any other appropriate forum. § 601.113 Debarment, suspension, and ineligibility.

(a)*General.* Except as provided otherwise in this part, contracting officers may not solicit proposals from, award contracts to, or, when a contract provides for such consent, consent to subcontracts with debarred, suspended, or ineligible suppliers.

(b)*Definitions* —(1) *Affiliate.* A business, organization, person, or individual connected by the fact that one controls or has the power to control the other or by the fact that a third party controls or has the power to control both. Indications of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, contractual relationships, common use of employees, or a business entity organized following the debarment, suspension, or proposed debarment of a supplier which has the same or similar management, ownership, or principal employees as the supplier that was debarred, suspended, or proposed for debarment. Franchise agreements are not conclusive evidence of affiliation if the franchisee has a right to profit in proportion to its ownership and bears the risk of loss or failure.

(2)*Debarment.* An exclusion from contracting and subcontracting for a reasonable, specified period of time commensurate with the seriousness of the offense, failure, or inadequacy of performance.

(3)*General Counsel.* This includes the General Counsel's authorized representative.

(4)*Indictment.* Indictment for a criminal offense. An information or other filing by competent authority charging a criminal offense is given the same effect as an indictment.

(5)*Ineligible.* An exclusion from contracting and subcontracting by an entity other than the Postal Service under statutes, executive orders, or regulations, such as the Davis-Bacon Act, the Service Contract Act, the Equal Employment Opportunity Acts, the Walsh-Healy Public Contracts Act, or the Environmental Protection Acts and related regulations or executive orders, to which the Postal Service is subject or has adopted as a matter of policy.

(6)*Suspension.* An exclusion from contracting and subcontracting for a reasonable period of time due to specified reasons or the pendency of a debarment proceeding.

(7)*Supplier.* For the purposes of this part, a supplier is any individual, person, or other legal entity that:

(i)Directly or indirectly (e.g., through an affiliate) submits offers for, is awarded, or reasonably may be expected to submit offers for or be awarded, a Postal Service contract, including a contract for carriage under Postal Service or commercial bills of lading, or a subcontract under a Postal Service contract; or

(ii)Conducts business or reasonably may be expected to conduct business with the Postal Service as a subcontractor, an agent, or as a representative of another supplier.

(c)*Establishment and maintenance of lists* —(1) The vice president, Supply Management will establish, maintain, and make available a list of suppliers debarred or suspended by the Postal Service to contracting officers.

(2)The General Services Administration

(GSA)compiles and maintains a consolidated list of all persons and entities debarred, suspended, proposed for debarment, or declared ineligible by Federal agencies or the Government Accountability Office. GSA posts the list on the Internet.

(3)The vice president, Supply Management will notify the GSA of any Postal Service debarment, suspension, and change in the status of suppliers, including any of their affiliates, on the Postal Service list.

(d)*Treatment of suppliers on Postal Service or GSA lists.*

(1)Contracting officers will review the Postal Service and GSA lists before making a contract award.

(2)Suppliers on the Postal Service list are excluded from receiving contracts and subcontracts, and contracting officers may not solicit proposals or quotations from, award contracts to, or, when a contract provides for such consent, consent to subcontracts with such suppliers, unless the vice president, Supply Management, or his or her designee, after consultation with the General Counsel, has approved such action. Suppliers on the Postal Service list may not provide goods or services to other persons or entities for resale, in whole or part, to the Postal Service and such other persons or entities are obligated to review the consolidated GSA list in order to exclude suppliers debarred or suspended by the Postal Service from performing any part of a Postal Service contract.

(3)Suppliers on the GSA list are assigned a code by GSA which is related to the basis of ineligibility. The vice president, Supply Management maintains a table describing the Postal Service treatment assigned to each code. Suppliers on the GSA list who are coded as ineligible are excluded from receiving contracts and subcontracts, and contracting officers may not solicit proposals or quotations from, award contracts to, or, when the contract provides for such consent, consent to subcontracts with such suppliers, unless the vice president, Supply Management, or designee, after consultation with the General Counsel, has approved such action. Suppliers on the GSA list may not provide goods or services to other persons or entities for resale, in whole or part, to the Postal Service, and such other persons or entities are obligated to review the consolidated GSA list in order to exclude debarred or suspended suppliers from performing any part of a Postal Service contract.

(4)Suppliers on the GSA list are assigned codes for which the table provides other Postal Service guidance, and are considered according to that guidance. When so indicated on the table, contracting officers must obtain additional information from the entity responsible for establishing the supplier's ineligibility, if such information is available.

(5)The debarment, suspension, or ineligibility of a supplier does not, of itself, affect the rights and obligations of the parties to any valid, pre-existing contract. The Postal Service may terminate for default a contract with a supplier that is debarred, suspended, or determined to be ineligible. Contracting officers may not add new work to any contract with a supplier that is debarred, suspended, or determined to be ineligible by supplemental agreement, by exercise of an option, or otherwise (unless the work is classified as an insignificant or significant minor service change to a mail transportation contract), except with the approval of the vice president, Supply Management, or designee.

(e)*Causes for debarment* —(1) The vice president, Supply Management, with the concurrence of the General Counsel, may debar a supplier, including its affiliates, for cause such as the following:

(i)Conviction of a criminal offense incidental to obtaining or attempting to obtain contracts or subcontracts, or in the performance of a contract or subcontract.

(ii)Conviction under a Federal antitrust statute arising out of the submission of bids or proposals.

(iii)Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property.

(iv)Violation of a Postal Service contract so serious as to justify debarment, such as willful failure to perform a Postal Service contract in accordance with the specifications or within the time limit(s) provided in the contract; a record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more Postal Service contracts occurring within a reasonable period of time preceding the determination to debar (except that failure to perform or unsatisfactory performance caused by acts beyond the control of the supplier may not be considered a basis for debarment); violation of a contractual provision against contingent fees; or acceptance of a contingent fee paid in violation of a contractual provision against contingent fees.

(v)Any other offense indicating a lack of business integrity or business honesty.

(vi)Any other cause of a serious and compelling nature that debarment is warranted.

(2)The existence of a conviction in paragraph (e)(1)(i) or

(ii)of this section can be established by proof of a conviction in a court of competent jurisdiction. If appeal taken from such conviction results in a reversal of the conviction, the debarment may be removed upon the request of the supplier, unless another cause or another basis for debarment exists.

(3)The existence of any of the other causes in paragraphs (e)(1)(iii), (iv),(v), or

(vi)of this section can be established by a preponderance of the evidence, either direct or indirect, in the judgment of the vice president of Supply Management.

(4)The criminal, fraudulent, or improper conduct of an individual may be imputed to the firm with which he or she is or has been connected when an impropriety was committed. Likewise, when a firm is involved in criminal, fraudulent, or other improper conduct, any person who participated in, knew of, or had reason to know of the impropriety may be debarred.

(5)The fraudulent, criminal, or other improper conduct of one supplier participating in a joint venture or similar arrangement may be imputed to other participating suppliers if the conduct occurred for or on behalf of the joint venture or similar arrangement, or with the knowledge, approval, or acquiescence of the supplier. Acceptance of the benefits derived from the conduct will be evidence of such knowledge, approval, or acquiescence.

(f)*Mitigating factors* —(1) The existence of any cause for debarment does not necessarily require that a supplier be debarred. The decision to debar is within the discretion of the vice president, Supply Management, with the concurrence of the General Counsel, and must be made in the best interest of the Postal Service. The following factors may be assessed in determining the seriousness of the offense, failure, or inadequacy of performance, and may be taken into account in deciding whether debarment is warranted:

(i)Whether the supplier had established written standards of conduct and had published internal control systems at the time of the activity that constitutes cause for debarment or had adopted such procedures prior to any Postal Service investigation of the activity cited as a cause for debarment.

(ii)Whether the supplier brought the activity cited as a cause for debarment to the attention of the Postal Service in a prompt, timely manner.

(iii)Whether the supplier promptly and fully investigated the circumstances involving debarment and, if so, made the full results of the investigation available to appropriate officials of the Postal Service.

(iv)Whether the supplier cooperated fully with the Postal Service during its investigation into the matter.

(v)Whether the supplier paid or agreed to pay all criminal, civil, and administrative liability and other costs arising out of the improper activity, including any investigative or administrative costs incurred by the Postal Service, and made or agreed to make full restitution.

(vi)Whether the supplier took appropriate disciplinary action against the individual(s) responsible for the activity that could cause debarment.

(vii)Whether the supplier implemented and/or agreed to implement remedial measures, including those identified by the Postal Service.

(viii)Whether the supplier instituted and/or agreed to institute new and/or revised review and control procedures and ethics programs.

(ix)Whether the supplier had adequate time to eliminate circumstances within the supplier's organization that could lead to debarment.

(x)Whether the supplier's senior officers and mid-level management recognize and understand the seriousness of the misconduct giving rise to debarment.

(2)The existence or nonexistence of mitigating factors or remedial measures such as those above is not determinative whether or not a supplier should be debarred. If a cause for debarment exists, the supplier has the burden of demonstrating, to the satisfaction of the vice president, Supply Management that debarment is not warranted or necessary.

(g)*Period of debarment* —(1) When an applicable statute, executive order, or controlling regulation of other agencies provides a specific period of debarment, that period applies. In other cases, debarment by the Postal Service should be for a reasonable, definite, stated period of time, commensurate with the seriousness of the offense or the failure or inadequacy of performance. Generally, a period of debarment should not exceed three years. When debarment for an additional period is deemed necessary, notice of the proposed additional period of debarment must be furnished to the supplier as in the case of original debarment.

(2)Except as precluded by an applicable statute, executive order, or controlling regulation of another agency, debarment may be removed or the period may be reduced by the vice president, Supply Management when requested by the debarred supplier and when the request is supported by a reasonable justification, such as newly discovered material evidence, reversal of a conviction, bona fide change of ownership or management, or the elimination of the causes for which debarment was imposed. The vice president, Supply Management may, at his or her discretion, deny any request or refer it to the Judicial Officer for a hearing and for findings of fact, which the vice president, Supply Management will consider when deciding the matter. When a debarment is removed or the debarment period is reduced, the vice president, Supply Management must state in writing the reason(s) for the removal of the debarment or the reduction of the period of debarment.

(h)*Procedural requirements for debarment* —(1) After securing the concurrence of the General Counsel, the vice president, Supply Management will initiate a debarment proceeding by sending the supplier a written notice of proposed debarment. The notice will be served by sending it to the last known address of the supplier by Certified Mail, return receipt requested. A copy of the notice will be furnished to the Office of Inspector General. The notice will state that debarment is being considered; the reason(s) for the proposed debarment; the anticipated period of debarment and the proposed effective date; and that, within thirty days of the notice, the supplier may submit, in person or in writing, or through a representative, information and argument in opposition to the proposed debarment. In the event a supplier does not submit information or argument in opposition to the proposed debarment to the vice president, Supply Management within the time allowed, the debarment will become final with no further review or appeal.

(2)If the proposed debarment is based on a conviction or civil judgment, the vice president, Supply Management, with the concurrence of the General Counsel, may decide whether debarment is merited based on the conviction or judgment, including any information received from the supplier. If the debarment is based on other circumstances or if there are questions regarding material facts, the vice president, Supply Management may seek additional information from the supplier and/or other persons, and may request the Judicial Officer to hold a fact-finding hearing on such matters. The hearing will be governed by rules of procedure promulgated by the Judicial Officer. The vice president, Supply Management may reject any findings of fact, in whole or in part, when they are clearly erroneous.

(3)When the vice president, Supply Management proposes to debar a supplier already debarred by another government agency for a period concurrent with such debarment, the debarment proceedings before the Postal Service may be based entirely upon the record of evidence, facts, and proceedings before the other agency, upon any additional facts the Postal Service deems relevant, or on the decision of another government agency. In such cases, the findings of facts by another government agency may be considered as established, but, within thirty days of the notice of proposed debarment, the supplier may submit, in person or in writing, or through a representative, any additional facts, information, or argument to the vice president, Supply Management, and to explain why debarment by the Postal Service should not be imposed.

(4)Questions of fact to be resolved by a hearing before the Judicial Officer will be based on the preponderance of the evidence.

(5)After consideration of the circumstances and any information and argument submitted by the supplier, the vice president, Supply Management, with the concurrence of the General Counsel, will issue a written decision regarding whether the supplier is debarred, and, if so, for the period of debarment. The decision will be mailed to the supplier by Certified Mail, return receipt requested. A copy of the decision will be furnished to the Office of the Inspector General. The decision will be final and binding, unless the decision was procured by fraud or other criminal misconduct, or the decision was obtained in violation of the regulations contained in this part or an applicable public law enacted by Congress.

(i)*Causes for suspension.* The vice president, Supply Management, may suspend any supplier, including any of its affiliates:

(1)If the supplier commits, is indicted for, or is convicted of fraud or a criminal offense incidental to obtaining, attempting to obtain, or performing a government contract, violates a Federal antitrust statute arising out of the submission of bids and proposals, or commits or engages in embezzlement, theft, forgery, bribery, falsification or destruction of records, or receipt of stolen property, or any other offense indicating a lack of business integrity or business honesty;

(2)For any other cause of such serious and compelling nature that suspension is warranted; or

(3)If the Postal Service has notified a supplier of its proposed debarment under this Part.

(j)*Period of suspension.* A suspension will not exceed one year in duration, except a suspension may be extended for reasonable periods of time beyond one year by the vice president, Supply Management. The termination of a suspension will not prejudice the Postal Service's position in any debarment proceeding. A suspension will be superseded by a decision rendered by the vice president, Supply Management, under paragraph (h)(5) of this section.

(k)*Procedural requirements for suspension* —(1) The vice president, Supply Management will notify a supplier of a suspension or an extension of a suspension and the reason(s) for the suspension or extension in writing sent to the supplier by Certified Mail, return receipt requested, within ten days after the effective date of the suspension or extension. A copy of the notice will be furnished to the Office of the Inspector General.

(2)The notice will state the cause(s) for the suspension or extension.

(3)Within thirty days of notice of suspension or an extension, a supplier may submit to the vice president, Supply Management, in writing, any information or reason(s) the supplier believes makes a suspension or an extension inappropriate, and the vice president, Supply Management, in consultation with the General Counsel, will consider the supplier's submission, and, in their discretion, may revoke a suspension or an extension of a suspension. If a suspension or extension is revoked, the revocation will be in writing and a copy of the revocation will be sent to the supplier by Certified Mail, return receipt requested. A copy of the revocation will be furnished to the Office of the Inspector General. Stanley F. Mires, Chief Counsel, Legislative. [FR Doc. E7-20267 Filed 10-12-07; 8:45 am] BILLING CODE 7710-12-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 0612243162-7541-02; I.D. 032607A] RIN 0648-AU77 Fisheries Off West Coast States; Highly Migratory Species Fisheries Agency: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues a final rule to implement daily bag limits for sport-caught albacore tuna ( *Thunnus alalunga* ) and bluefin tuna ( *Thunnus orientalis* ) in the Exclusive Economic Zone

(EEZ)off California under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). This final rule is implemented as a conservation measure as part of the 2007-2009 biennial management cycle as established in the HMS FMP Framework provisions for changes to routine management measures. DATES: This final rule is effective November 14, 2007. ADDRESSES: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802 4213. FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries Division, NMFS, 760-431-9440, ext. 303. SUPPLEMENTARY INFORMATION: On April 7, 2004, NMFS published a final rule to implement the HMS FMP (69 FR 18444) that codified annual specification guidelines at 50 CFR 660.709. These guidelines establish a process for the Pacific Fishery Management Council (Council) to take final action at its regularly-scheduled November meeting on any necessary harvest guideline, quota, or other management measure and recommend any such action to NMFS. At their November 12-17, 2006, meeting, the Council adopted a recommendation to establish daily bag limits for sport-caught albacore and bluefin tuna harvested in the EEZ off of California as a routine management measure for the 2007-2009 biennial management cycle. Based in part on the Council's recommendation, NMFS published a proposed rule on June 27, 2007, to establish daily bag limits for albacore and bluefin tuna harvested by recreational fishing in the U.S. EEZ off the coast of California (72 FR 35213). NMFS is implementing this final rule pursuant to procedures established at 50 CFR 660.709(a)(4) of the implementing regulations for the HMS FMP. This final rule establishes a daily bag limit of 10 albacore tuna harvested by recreational fishing in the U.S. EEZ south of Point Conception (34° 27′ N. latitude) to the U.S.-Mexico border and a daily bag limit of 25 albacore tuna harvested by recreational fishing in the U.S. EEZ north of Point Conception to the California-Oregon border. This rule also establishes a daily bag limit of 10 bluefin tuna harvested by recreational fishing in the U.S. EEZ off the entire California coast. The two bag limits for albacore tuna are intended to accommodate differences in fishing opportunity in the two regions south and north of Point Conception. The 25 fish albacore tuna bag limit north of Point Conception is consistent with the current albacore tuna bag limit established by the State of Oregon for recreational fisheries in its waters and recognizes the more frequent weather-related loss of fishing opportunity in these waters compared to waters south of Point Conception. California State regulations allow, by special permit, the retention of up to three daily bag limits for a trip occurring over multiple, consecutive days. California State regulations also allow for two or more persons angling for finfish aboard a vessel in ocean waters off California to continue fishing until boat limits are reached. NMFS and the Council consider these additional state restrictions to be consistent with Federal regulations implementing the HMS FMP, including this final rule. The final rule has been modified to clarify that recreational fisherman are generally subject to the same daily bag limits (10 or 25 albacore tuna south or north of Point Conception; 10 bluefin tuna off California) regardless of the number of days a fishing trip lasts unless operating under a California multi-day possession permit, in which case the daily bag limits may be multiplied pursuant to the restrictions of that program. Language has also been added to the final rule to clarify that a fisherman must comply with the most strict bag limit applicable to all areas fished during a given trip (e.g., if any part of a fishing trip takes place in the EEZ south of Point Conception, the 10-albacore bag limit applies even if the port of departure and landing or fishing takes place north of Point Conception). The designation of paragraphs in 50 CFR 660.721 has been revised from the proposed rule to reduce complexity and make the regulations easier to read. This final rule will stay in effect until such time as the Council and/or NMFS proposes further modifications as part of the HMS FMP biennial management cycle process. The State of California has informed NMFS that it intends to implement companion regulations to impose daily albacore and bluefin bag limits applicable to recreational angling and possession of fish in state waters (0-3 nm). Comments and Responses During the comment period for the proposed rule, NMFS received two comments. *Comment 1:* The Science and Policy Coordinator for the Tag-A-Giant Foundation wrote in support of the proposed rule to implement a bag limit for Pacific bluefin tuna off the California coast but requested that NMFS reduce the bag limit from the proposed 10 fish per day to six fish per day. The stated rationale for the reduced daily bag limit request was to prevent expansion of the recreational fishery and potential overfishing that could result. The Coordinator also requested the daily bag limit be consistently applied in federal waters off the coasts of Oregon and Washington as well given the documented presence of bluefin tuna in these waters, particularly during El Nino years. *Response:* Establishing a six fish per day bag limit is unnecessary given the very minor catch of bluefin tuna in the recreational fisheries of all three West Coast states. Based on the best available science, bluefin tuna populations in the North Pacific Ocean

(NPO)are not experiencing overfishing nor are they overfished. NMFS is involved in cooperative research and monitoring efforts for the NPO populations of bluefin tuna and will, in conjunction with the Pacific Council, take necessary steps in the future to implement appropriate conservation measures if warranted, including the potential for additional regulations to address both commercial and recreational fisheries impacts. In a similar vein, expanding the daily bluefin tuna bag limit to all three West Coast states is unnecessary based on the limited window of recreational catch and effort of bluefin tuna in Federal waters off Oregon and Washington. *Comment 2:* The Manager of the Marine Resources Program for the Oregon Department of Fish and Wildlife wrote in support of the proposed rule stating that the dual limit for tuna off California would make the limit off northern California consistent with the limit off Oregon. *Response:* The current Oregon daily bag limit is an aggregate of 25 fish of offshore pelagic species, which includes all the species of tunas found to occur in Oregon waters. NMFS hereby implements daily bag limits that are geographically consistent thereby facilitating more efficient and enforceable regulations. Classification The Administrator, Southwest Region, NMFS, determined that the FMP regulation is necessary for the conservation and management of the U.S. West Coast Fisheries for Highly Migratory Species and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. List of Subjects in 50 CFR Part 660 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: October 9, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: PART 660—FISHERIES OFF THE WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. A new paragraph

(qq)is added to section 660.705 to read as follows: § 660.705 Prohibitions.

(qq)Take and retain, possess on board, or land, fish in excess of any bag limit specified in § 660.721. 3. Subpart K is amended by adding a new section 660.721 to read as follows: § 660.721 Recreational fishing bag limits. This section applies to recreational fishing for HMS management unit species in the U.S. EEZ off the coast of California, Oregon, and Washington and in the adjacent high seas areas. In addition to individual fishermen, the operator of a vessel that fishes in the EEZ is responsible for ensuring that the bag limits of this section are not exceeded. The bag limits of this section apply on the basis of each 24-hour period at sea, regardless of the number of trips per day. The provisions of this section do not authorize any person to take more than one daily bag limit of fishing during one calendar day. Federal recreational HMS regulations are not intended to supersede any more restrictive state recreational HMS regulations relating to federally-managed HMS. The bag limits include fish taken in both state and Federal waters.

(a)*Albacore Tuna Daily Bag Limit.* Except pursuant to a multi-day possession permit referenced in paragraph

(c)of this section, a recreational fisherman may take or retain no more than:

(1)Ten albacore tuna if any part of the fishing trip occurs in the U.S. EEZ south of a line running due west true from 34°27′ N. latitude (at Point Conception, Santa Barbara County) to the U.S.-Mexico border.

(2)Twenty-five albacore tuna if any part of the fishing trip occurs in the U.S. EEZ north of a line running due west true from 34°27′ N. latitude (at Point Conception, Santa Barbara County) to the California-Oregon border.

(b)*Bluefin Tuna Daily Bag Limit.* A recreational fisherman may take or retain no more than 10 bluefin tuna in the U.S. EEZ off the coast of California.

(c)*Possession Limits.* If the State of California requires a multi-day possession permit for albacore or bluefin tuna harvested by a recreational fishing vessel and landed in California, aggregating daily trip limits for multi-day trips would be deemed consistent with Federal law.

(d)*Boat Limits* Off the coast of California, boat limits apply, whereby each fisherman aboard a vessel may continue to use recreational angling gear until the combined daily limits of HMS for all licensed and juvenile anglers aboard has been attained (additional state restrictions on boat limits may apply). Unless otherwise prohibited, when two or more persons are angling for HMS species aboard a vessel in the EEZ, fishing may continue until boat limits are reached. [FR Doc. E7-20225 Filed 10-12-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 0612242929-7490-02] RIN 0648-AT93 Fisheries in the Western Pacific; Precious Corals Fisheries AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: Black coral resources in the Au'au Channel, Hawaii, have declined, possibly due to fishing pressure and an alien invasive soft coral. Current fishing regulations require minimum sizes for the harvest of living black coral colonies of 48 inches (122 cm) in height or one inch (2.54 cm) in stem diameter. Current regulations also exempt certain fishermen from the minimum stem diameter requirement, allowing the harvest of black coral with a smaller 3/4 inch (1.91 cm) stem diameter by anyone who had reported black coral harvests to the State of Hawaii within the five years prior to April 17, 2002. This final rule removes that exemption to reduce the impacts of fishing on Au'Au Channel black coral resources. DATES: This final rule is effective November 14, 2007. ADDRESSES: Copies of the fishery management plan

(FMP)and the regulatory amendment may be obtained from Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council (Council), 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, or via the World Wide Web at *www.wpcouncil.org* . FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR,

(808)944-2271. SUPPLEMENTARY INFORMATION: Electronic Access This **Federal Register** document is also accessible via the World Wide Web at the Office of the **Federal Register** : *www.gpoaccess.gov/fr/index.html.* Background The fishery for black coral in Federal waters around Hawaii is managed under the Fishery Management Plan for Precious Corals of the Western Pacific Region (FMP). The FMP was developed by the Council under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Regulations implementing the FMP appear at subpart F of 50 CFR part 665 and subpart H of 50 CFR part 600. Black corals are slow-growing and have low rates of natural mortality and recruitment. Natural populations are relatively stable and a wide range of age classes is generally present. These life-history characteristics (longevity and many year classes) have two important consequences with respect to exploitation: the response of the population to over-harvesting is drawn out over many years, and, because of the longevity of individuals and the associated slow rates of turnover in the populations, a long period of reduced fishing effort is required to restore the ability of the stock to produce at the maximum sustainable yield

(MSY)if a stock has been over-exploited for several years. Since the harvesting of Hawaii black coral began in the late 1950s, generally fewer than 10 fishermen have been active in the fishery at any time. Participation has probably been limited by the relatively small market for black coral in Hawaii, and by the dangers of fishing operations--harvesting is done by hand using scuba at depths as great as 230 ft (70 m). Most of the catch comes from the Au'Au Channel, south of Maui. Three commercial black coral harvesters are currently permitted by the State of Hawaii. Nonetheless, landings of black coral have increased over the past two decades, and landings from 1999-2005 were about 55,000 lb (25,000 kg), which is about 58 percent of the total catch since 1985. Black coral biomass in the Au'Au Channel decreased almost 25 percent between 1976 and 2001. The causes of the reduction in biomass appear to be a combination of fishing pressure and the invasion of *Carijoa riisei* , an alien species of snowflake coral that smothers black coral colonies. The purpose of this final rule is to reduce the impacts of fishing on black coral resources in Federal waters of the Au'Au Channel. Surveys in 2006 suggest that the impact of *C. riisei* has stabilized or even improved, and monitoring will continue. Current regulations at 50 CFR 665.86(b)(1) contain minimum size requirements for the harvest of black coral colonies in the Exclusive Economic Zone

(EEZ)around Hawaii. Colonies must be 48 inches (122 cm) tall or one inch (2.54 cm) in stem diameter. The stem measurement must be made no closer than one inch (2.54 cm) from the top of the living holdfast. Current regulations also contain a provision at 50 CFR 665.86(b)(2) that exempts certain fishermen from the minimum stem diameter requirement, allowing the harvest of black coral with a 3/4 inch (1.91 cm) stem diameter by anyone who reported harvests to the State of Hawaii within the five years prior to April 17, 2002. In response to concerns about the declining black coral resource, the Council recommended that NMFS amend the regulations governing the minimum size requirements for the black coral fishery in Hawaii to remove the stem diameter exemption. The Council prepared a regulatory amendment that contains background information on the issue, biological and economic impact analyses, and proposed regulatory changes. The revised regulations require that all harvested living black coral have a stem diameter of one inch (2.54 cm) or a height of 48 inches (122 cm). Comments and Responses On August 8, 2007, NMFS published in the **Federal Register** a proposed rule (72 FR 44074). The public comment period ended on September 6, 2007. NMFS received two public comments generally supporting the proposed rule. Changes to the Proposed Rule No changes to the proposed rule were made in this final rule. Classification The Regional Administrator, NMFS Pacific Islands Region, determined that this regulatory amendment is necessary for the conservation and management of the precious coral fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. There are no recordkeeping or reporting requirements associated with this final rule. Consistent with section 604 of the Regulatory Flexibility Act, NMFS prepared a final regulatory flexibility analysis

(FRFA)for the regulatory amendment, as described below. NMFS prepared this FRFA for the final rule. This FRFA incorporates the initial regulatory flexibility analysis (IRFA). The Classification section in the proposed rule included a detailed summary of the analysis contained in the IRFA, and that discussion is not repeated in its entirety here. The need for and the objectives of the action are explained in the preambles to the proposed rule and final rule, and are not repeated here. No comments were received on the IRFA, or on the economic impacts of the proposed rule. There are three permitted vessels in the fishery, but only two have reported landings in Hawaii. These vessels are considered to be small entities under the Small Business Administration's definition of a small entity, i.e., they are engaged in the business of fish harvesting, are not independently-owned or operated, are not dominant in their field of operation, and have average annual gross receipts not in excess of $4 million. There are no disproportionate impacts between vessels participating in the fishery based on home port, vessel size, or gear type. The preferred Alternative 3, which would remove the exemption from minimum size requirements, and Alternative 6, which would implement a 5-year moratorium on black coral landings, would cause adverse economic impacts to the three entities that comprise the current fishery because they would not be allowed to harvest black coral in the way they are now allowed under the current management regime, thus potentially limiting their landings. Because Federal waters account for approximately 15 percent of total landings, black coral harvesters would be impacted by an estimated reduction of approximately 15 percent gross receipts under Alternative 6, and could be impacted by as much as a 15 percent reduction in gross receipts under the preferred Alternative 3. A 15 percent reduction would occur only if all corals currently harvested in Federal waters are harvested under the base requirement exemption. Otherwise, gross receipt reductions of 0 to 15 percent would occur under the preferred alternative depending upon the relative contribution of currently exempted products to the overall harvest. Excluding the no-action Alternative 1, which represents no change in net benefits to the affected small entities, all other alternatives considered (and described in detail in the IRFA accompanying the proposed rule) could yield potential beneficial impacts to the fishery because they eliminate certain size requirements for black coral harvest. However, these alternatives were not chosen since they would not be consistent with the objectives of the FMP and the MSA in that they would weaken the regulatory protection to black corals resources by removing size restrictions. Small Business Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders was prepared that also serves as a small entity compliance guide, which will be sent to all holders of permits for the precious coral fishery. Copies of the small business compliance guide are available from William L. Robinson, NMFS Pacific Islands Region, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814, or from the NMFS PIRO web site *www.fpir.noaa.gov* . List of Subjects in 50 CFR Part 665 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaii, Hawaiian Natives, Northern Mariana Islands, Reporting and recordkeeping requirements. Dated: October 9, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 665 is amended as follows: PART 665—FISHERIES IN THE WESTERN PACIFIC 1. The authority citation for part 665 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 665.86, paragraph

(b)is revised to read as follows: § 665.86 Size restrictions.

(b)*Black coral.* Live black coral harvested from any precious coral permit area must have attained either a minimum stem diameter of 1 inch (2.54 cm), or a minimum height of 48 inches (122 cm). [FR Doc. E7-20228 Filed 10-12-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070213032-7032-01] RIN 0648-XD33 Fisheries of the Economic Exclusive Zone Off Alaska; Trawl Gear in the Gulf of Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; modification of a closure. SUMMARY: NMFS is opening directed fishing for groundfish by vessels using trawl gear in the Gulf of Alaska (GOA), effective 1200 hrs, Alaska local time, October 10, 2007. This action is necessary to fully use the 2007 Pacific halibut prohibited species catch

(PSC)limit specified for vessels using trawl gear in the GOA. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), October 10, 2007, through 2400 hrs, A.l.t., December 31, 2007. Comments must be received at the following address no later than 4:30 p.m., A.l.t., October 25, 2007. ADDRESSES: You may submit comments, identified by “RIN 0648-XD33,” by any one of the following methods: • Mail to: P.O. Box 21668, Juneau, AK 99802; • Hand delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, Alaska; • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* • FAX to 907-586-7557, Attn: Ellen Sebastian • Mail to the Federal Building, 709 West 9th Street, Room 420A, Juneau, Alaska • Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska Management Area

(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2007 Pacific halibut bycatch allowance specified for trawl gear in the GOA is 2,000 metric tons

(mt)as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007, as corrected by 72 FR 13217, March 21, 2007). NMFS closed directed fishing for groundfish by vessels using trawl gear in the GOA under § 679.21(d)(7)(i) on October 8, 2007 (published on October 11, 2007 in the **Federal Register** ). As of October 9, 2007, NMFS has determined that 330 metric tons of the 2007 Pacific halibut bycatch allowance for the fishery remains. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2007 Pacific halibut PSC limit specified for vessels using trawl gear in the GOA, NMFS is terminating the previous closure and is opening directed fishing for groundfish by vessels using trawl gear in the GOA, effective 1200 hrs, A.l.t., October 10, 2007. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and

(f)apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the groundfish fishery by vessels using trawl gear in the GOA. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 9, 2007. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. Without this inseason adjustment, NMFS could not allow the fishery for groundfish by vessels using trawl gear in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 25, 2007. This action is required by § 679.25 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: October 9, 2007. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 07-5066 Filed 10-10-07; 2:01 pm]

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