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Code · REGISTER · 2007-03-07 · PROPOSED RULES · Agricultural Agricultural Marketing Service RULES Processed fruits, vegetables, and other processed products; inspection and certification fees, 10035-10038 E7-3937 PROPOSED RULES Olives grown in Cali · Unknown

Unknown. Final rule

59,206 words·~269 min read·/register/2007/03/07/07-1013

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-2007-03-07.xml --- 72 44 Wednesday, March 7, 2007 Contents Agricultural Agricultural Marketing Service RULES Processed fruits, vegetables, and other processed products; inspection and certification fees, 10035-10038 E7-3937 PROPOSED RULES Olives grown in California, 10091-10093 E7-3936 NOTICES Meetings: Plant Variety Protection Board, 10112 E7-3939 Agricultural Agricultural Research Service NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive:
Accent Engineering, Inc., 10112 E7-3934 Hepalife Technologies, Inc., 10112-10113 E7-3935 Agriculture Agriculture Department See Agricultural Marketing Service See Agricultural Research Service See Federal Crop Insurance Corporation See Food Safety and Inspection Service See Forest Service See Grain Inspection, Packers and Stockyards Administration Air Force Air Force Department NOTICES Privacy Act; systems of records, 10183-10185 E7-4021 E7-4022 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 10216-10220 E7-3984 E7-3985 E7-3986 Children Children and Families Administration NOTICES Organization, functions, and authority delegations:
Head Start Office, Director Republication, 10220 R7-3306 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration Customs Customs and Border Protection Bureau NOTICES Customs broker license cancellation, suspension, etc., 10236-10237 E7-4006 E7-4024 Defense Defense Department See Air Force Department See Navy Department NOTICES Arms sales notification; transmittal letter, etc., 10173-10178 07-1060 Federal Acquisition Regulation (FAR):
Agency information collection activities; proposals, submissions, and approvals, 10178-10179 07-1064 Meetings: Missile Defense Advisory Committee, 10179 07-1055 Uniform Formulary Beneficiary Advisory Panel, 10179-10180 07-1059 Privacy Act; systems of records, 10180-10183 E7-4023 E7-4025 E7-4030 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.: Elementary and secondary education— Early Reading First Program, 10190-10191 E7-4050 Employee Employee Benefits Security Administration RULES Employee Retirement Income Security Act:
Domestic relations orders; time and order of issuance, 10070-10074 E7-3820 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission Energy Energy Efficiency and Renewable Energy Office RULES Energy conservation: Commercial and industrial equipment; energy efficiency program— Commercial heating, air-conditioning, and water heating equipment standards, 10038-10049 E7-3819 EPA Environmental Protection Agency RULES Pesticides; tolerances in food, animal feeds, and raw agricultural commodities:
Polymer of 2-ethyl-2-(hydroxymethyl)-1,3-propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes, 10074-10077 E7-4083 Superfund program: National oil and hazardous substances contingency plan priorities list, 10078-10084 E7-3908 PROPOSED RULES Superfund program: National oil and hazardous substances contingency plan priorities list, 10105-10111 E7-3903 NOTICES Meetings: Sound Management of Chemicals Working Group; stakeholder meeting, 10209-10210 E7-4032 Pesticide registration, cancellation, etc.:
AgroGreen, 10210-10211 E7-4088 Pesticides, experimental use permits, etc.: Cerexagri, Inc., 10211-10212 E7-3669 Executive Executive Office of the President See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness directives: Airbus, 10057-10059 E7-3855 Cessna, 10049-10052 E7-3834 General Electric Co., 10054-10057 E7-3833 Reims Aviation S.A., 10052-10054 E7-3835 Class E airspace, 10059 E7-3938 PROPOSED RULES Airworthiness directives:
Empresa Brasileira de Aeronautica S.A. (EMBRAER), 10093-10095 E7-3987 NOTICES Aeronautical land-use assurance; waivers: Laurinburg-Maxton Airport; NC, 10291-10292 07-1018 Grants and cooperative agreements; availability, etc.: Airport Improvement Program, 10292 07-1017 Reports and guidance documents; availability, etc.: Advisory circulars; other policy documents, and proposed technical standard orders; availability on agency Web site, 10292 07-1019 FCC Federal Communications Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 10212-10214 E7-4033 E7-4034 E7-4036 Common carrier services:
Interstate Telecommunications Relay Service Fund; video relay service provider eligibility certifications— Hands On Video Relay Services, Inc., 10214-10215 E7-4045 Federal Crop Federal Crop Insurance Corporation NOTICES Grants and cooperative agreements; availability, etc.: Commodity Partnerships for Risk Management Education Program, 10113-10121 E7-4080 Commodity Partnerships Small Sessions Program, 10121-10128 E7-4092 Crop Insurance Education in Targeted States Program, 10128-10135 E7-4079 Federal Emergency Federal Emergency Management Agency NOTICES Disaster and emergency areas:
Louisiana, 10237 E7-3929 New York, 10237-10238 E7-3928 Oregon, 10238 E7-3933 Pennsylvania, 10238-10239 E7-3930 Federal Energy Federal Energy Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 10191-10193 E7-3966 E7-3995 Complaints filed: Californians for Renewable Energy, Inc., 10201 E7-3983 Maine Public Utilities Commission, 10201-10202 E7-3976 Electric rate and corporate regulation combined filings, 10202-10204 E7-3973 E7-3988 Environmental statements; availability, etc.:
California Department of Water Resources, 10204-10205 E7-3997 Idaho Power Co., 10205 E7-3967 Hydroelectric applications, 10205-10207 E7-3978 Meetings: Verdant Power, Inc.; scoping meetings and site visit, 10207-10208 E7-3996 Wholesale power markets competition; conference, 10208-10209 E7-3961 *Applications, hearings, determinations, etc.:* ANR Pipeline Co., 10193 E7-3969 ANR Storage Co., 10193 E7-3971 Bonneville Power Administration, 10193-10194 E7-3994 California Independent System Operator Corp., 10194 E7-3993 Columbia Gas Transmission Corp., 10194 E7-3981 DTE Pontiac North, LLC, 10194-10195 E7-3977 Enbridge Pipelines (KPC), 10195 E7-3991 Entergy Services, Inc., 10195-10196 E7-3964 Honeoye Storage Corp., 10196 E7-3970 Mojave Pipeline Co., 10196 E7-3998 National Fuel Gas Supply Corp., 10196-10197 E7-3972 Nevada Power Co., 10197 E7-3963 North American Electric Reliability Corp., 10197 E7-3962 North Baja Pipeline, LLC, 10198 E7-3979 E7-3982 Northern Border Pipeline Co., 10198-10199 E7-3999 Northern Natural Gas Co., 10199 E7-3975 Northwest Pipeline Corp., 10199 E7-3980 Petal Gas Storage, L.L.C, 10199-10200 E7-4000 Southern Company Services, Inc., 10200 E7-3965 Southern Star Central Gas Pipeline, Inc, 10200-10201 E7-3992 Federal Highway Federal Highway Administration NOTICES Environmental statements; notice of intent:
Hardeman County, TN, 10292-10293 E7-4027 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings; Sunshine Act, 10293 07-1086 Federal Railroad Federal Railroad Administration RULES Practice and procedure: Direct final rulemaking procedures; expedited processing of noncontroversial changes, 10086-10088 E7-3923 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 10215-10216 E7-4043 Formations, acquisitions, and mergers, 10216 E7-4044 Fish Fish and Wildlife Service NOTICES Endangered and threatened species:
Incidental take permits— Bastrop County, TX; Houston toad, 10240-10241 E7-4031 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 10220-10224 E7-3904 E7-3915 Reports and guidance documents; availability, etc.: Drug safety information; FDA communication to the public, 10224-10225 07-1048 Food Food Safety and Inspection Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 10135-10136 E7-4086 Forest Forest Service RULES Oil and gas operations:
Onshore Federal and Indian oil and gas leases; approval of operations (Order No.1), 10308-10338 07-934 NOTICES Environmental statements; notice of intent: Fremont-Winema National Forests, OR, 10136-10137 07-1053 Meetings: Resource Advisory Committees— Pacific Northwest, 10137-10138 07-1054 GSA General Services Administration RULES Federal Management Regulation: Personal property disposition, 10084-10086 E7-3958 NOTICES Federal Acquisition Regulation (FAR): Agency information collection activities; proposals, submissions, and approvals, 10178-10179 07-1064 GIPSA Grain Inspection, Packers and Stockyards Administration NOTICES Agency designation actions:
Various States, E7-4091 10138-10140 E7-4098 Packers and Stockyard Act: Reparation awards; interest calculation methodology, 10140-10141 E7-4095 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health Health Health Resources and Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-3901 10225-10227 E7-3917 E7-3918 National Practitioner Data Bank:
Proactive Disclosure Service Prototype; implementation, 10227-10228 E7-3974 Homeland Homeland Security Department See Customs and Border Protection Bureau See Federal Emergency Management Agency See U.S. Citizenship and Immigration Services Industry Industry and Security Bureau NOTICES Meetings: Deemed Export Advisory Committee, 10141 07-1063 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See National Park Service See Reclamation Bureau IRS Internal Revenue Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 10296-10301 E7-3940 E7-3942 E7-3944 E7-3945 E7-3947 E7-3948 E7-3949 E7-3951 Meetings:
Art Advisory Panel, 10301 E7-3943 International International Trade Administration NOTICES Antidumping: Folding metal tables and chairs from— China, 10141-10142 E7-4048 Forged stainless steel flanges from— India, 10142-10148 E7-4072 Freshwater crawfish tail meat from— China, 10148-10150 E7-4068 Honey from— Argentina and China, 10150-10151 E7-4052 Stainless steel bar from— India, 10151-10158 E7-4057 Wooden bedroom furniture from— China, 10158-10163 E7-4049 E7-4051 Countervailing duties:
Cut-to-length carbon-quality steel plate from— Korea, 10163-10169 E7-4070 International International Trade Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 10257 E7-4013 Import investigations: Pure magnesium from— China, 10258 E7-4012 Judicial Judicial Conference of the United States NOTICES Meetings: Judicial Conference Advisory Committee on— Appellate Procedure Rules, 10258 07-1045 Bankruptcy Procedure Rules, 10259 07-1047 Civil Procedure Rules, 10258 07-1044 Criminal Procedure Rules, 10258 07-1043 Evidence Rules, 10258 07-1042 Practice and Procedure Rules, 10258-10259 07-1046 Justice Justice Department See Justice Programs Office RULES Organization, functions, and authority delegations:
National Security Division, 10064-10070 E7-3755 Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 10259 E7-4016 Labor Labor Department See Employee Benefits Security Administration See Occupational Safety and Health Administration Land Land Management Bureau RULES Oil and gas operations: Onshore Federal and Indian oil and gas leases; approval of operations (Order No.1), 10308-10338 07-934 NOTICES Environmental statements; notice of intent:
Leeville Project, Elko County, NV, 10241 E7-4071 South Operations Area Project, Elko County, NV, 10241-10242 E7-4078 Meetings: McInnis Canyons National Conservation Area Advisory Council, 10242 07-1052 Oil and gas leases: Wyoming, 10242-10243 E7-4093 Resource management plans, etc.: Uncompahgre Basin and San Juan / San Miguel, CO; temporary travel management plan, 10243 E7-4089 Withdrawal and reservation of lands: Colorado, 10243-10244 E7-4069 Minerals Minerals Management Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 10244-10255 E7-3737 NASA National Aeronautics and Space Administration NOTICES Federal Acquisition Regulation (FAR):
Agency information collection activities; proposals, submissions, and approvals, 10178-10179 07-1064 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle safety standards; exemption petitions, etc.: Hankook Tire Co., Ltd., 10293-10295 E7-3925 E7-3926 E7-3927 NIH National Institutes of Health NOTICES Inventions, Government-owned; availability for licensing, 10228-10229 E7-3959 Meetings: National Cancer Institute, 07-1035 10230 07-1036 National Center for Complementary and Alternative Medicine, 10230 07-1039 National Center on Minority Health and Health Disparities, 10230-10231 07-1038 National Eye Institute, 10231 07-1033 National Human Genome Research Institute, 10231 07-1025 National Institute of Allergy and Infectious Diseases, 10231-10234 07-1021 07-1024 07-1037 National Institute of Child Health and Human Development, 10232-10233 07-1027 07-1028 07-1029 National Institute of General Medical Sciences, 10234 07-1040 National Institute of Mental Health, 10231-10233 07-1020 07-1026 07-1031 Research on Women's Health Advisory Committee, 10229-10230 07-1041 Scientific Review Center, 07-1022 10234-10236 07-1023 07-1030 07-1032 07-1034 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management:
Caribbean, Gulf, and South Atlantic fisheries- King mackerel, 10089-10090 07-1015 Gulf of Mexico reef fish; delay of effective date, 10088-10089 07-1013 Western Pacific fisheries— Sea turtles protection; Hawaii-based shallow-set longline fishery 7-day delay; correction, 10090 E7-3902 NOTICES Endangered and threatened species: Anadromous fish take— Santa Clara Valley Water District; Central California Coast coho salmon and steelhead and South-Central California coast steelhead, 10169 E7-3950 Marine mammal permit applications, determinations, etc.:, 10169-10171 E7-3899 E7-3900 Meetings:
Gulf of Mexico Fishery Management Council, 10171-10172 E7-3954 National Park National Park Service NOTICES Concession contracts and permits: Expiring contracts; extension, 10255-10256 07-1051 Environmental statements; availability, etc.: Lake Mead National Recreation Area, NV; Clean Water Coalition Systems Conveyance and Operations Program, 10256-10257 07-1049 National Science National Science Foundation NOTICES Antarctic Conservation Act of 1978; permit applications, etc., 10261 E7-3898 National Telecommunications National Telecommunications and Information Administration NOTICES Grants and cooperative agreements; availability, etc.:
Public Telecommunications Facilities Program, 10172-10173 E7-4017 Navy Navy Department NOTICES Environmental statements; notice of intent: Naval Base Guam; Marine Corps units relocation, 10186-10187 E7-3800 Privacy Act; systems of records, E7-4026 10187-10190 E7-4028 E7-4029 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.: Army Department, Ft McClellan, AL, 10262-10264 E7-4096 *Applications, hearings, determinations, etc.:* USEC, Inc., 10262 E7-4103 Occupational Occupational Safety and Health Administration NOTICES Nationally recognized testing laboratories, etc.:
Canadian Standards Association, 10259-10261 E7-3953 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Public Public Debt Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 10301-10302 E7-4003 E7-4004 Reclamation Reclamation Bureau NOTICES Environmental statements; availability, etc.: Lake Mead National Recreation Area, NV; Clean Water Coalition Systems Conveyance and Operations Program, 10256-10257 07-1049 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes:
American Stock Exchange LLC, 10265-10276 E7-4039 E7-4040 Boston Stock Exchange, Inc., 10276-10277 E7-4041 Fixed Income Clearing Corp., 10277-10278 E7-3932 International Securities Exchange, LLC, 10279-10280 E7-4042 NASDAQ Stock Market LLC, 10280-10283 E7-4038 National Association of Securities Dealers, Inc., 10283-10285 E7-3952 NYSE Arca, Inc., 10285-10287 E7-3883 Philadelphia Stock Exchange, Inc., 10287-10289 E7-3916 E7-3931 SBA Small Business Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 10289 E7-4077 State State Department RULES Nonprocurement debarment and suspension;
OMB guidance; implementation, 10033-10035 E7-3872 Visas; nonimmigrant documentation: Exchange visitors, 10060-10064 E7-3871 PROPOSED RULES Passports: Regulations reorganization, restructuring, and update, 10095-10105 E7-3870 NOTICES Culturally significant objects imported for exhibition: World of 1607, 10289 E7-4047 Meetings: Defense Trade Advisory Group, 10289-10290 E7-4046 Surface Surface Transportation Board NOTICES Railroad services abandonment: Boston and Maine Corp., et al., 10295 E7-3705 TVA Tennessee Valley Authority NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-3955 10290 E7-3956 Trade Trade Representative, Office of United States NOTICES Dominican Republic-Central America-United States Free Trade Agreement:
Discriminatory purchasing requirements; waiver determination, 10264-10265 E7-4020 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See National Highway Traffic Safety Administration See Surface Transportation Board NOTICES Aviation proceedings: Agreements filed; weekly receipts, 10290-10291 E7-4073 E7-4076 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, 10291 E7-4075 Treasury Treasury Department See Internal Revenue Service See Public Debt Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 10295-10296 E7-4082 E7-4084 MISSING FOR:
U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 10239-10240 E7-4018 E7-4019 Veterans Veterans Affairs Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 10302-10304 E7-4007 E7-4008 E7-4009 E7-4010 E7-4011 Meetings: Veterans Disability Benefits Commission, 10305 07-1058 Real property; enhanced use leases: Brecksville, OH;
Louis Stokes Cleveland VA Medical Center, 10305 E7-4014 Butler, PA; VA Medical Center, 10305 E7-4001 Dayton, OH; VA Medical Center, 10305-10306 E7-4015 Separate Parts In This Issue Part II Agriculture Department, Forest Service; Interior Department, Land Management Bureau, 10308-10338 07-934 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 44 Wednesday, March 7, 2007 Rules and Regulations DEPARTMENT OF STATE 2 CFR Part 601 22 CFR Parts 133, 137, and 145 [Public Notice 5710] RIN 1400-AB83 Department of State's Implementation of OMB Guidance on Nonprocurement Debarment and Suspension AGENCY:
Department of State. ACTION: Final rule. SUMMARY: The Department of State
(DOS)is moving its regulations on nonprocurement debarment and suspension from their current location in title 22 of the Code of Federal Regulations
(CFR)to title 2 of the CFR, and is adopting the format established by the Office of Management and Budget
(OMB)in a document of interim final guidance on nonprocurement debarment and suspension published in the **Federal Register** on August 31, 2005. In today's rule, DOS establishes a new 2 CFR part 601 that adopts OMB's final government-wide guidance on nonprocurement debarment and suspension and contains supplemental DOS nonprocurement debarment and suspension provisions. In addition, this rule removes 22 CFR part 137, the existing DOS nonprocurement debarment and suspension regulations and updates references to 22 CFR part 137 in 22 CFR part 145 and 22 CFR part 133 to conform with this change. These changes constitute an administrative simplification that makes no substantive change in DOS policy or procedures for nonprocurement debarment and suspension. EFFECTIVE DATE: This rule is effective March 7, 2007. FOR FURTHER INFORMATION CONTACT: Georgia Hubert, Director, Federal Assistance Division, Office of the Procurement Executive, A/OPE/FA, Department of State, SA-6, Suite 600, Washington, DC 20520; Telephone: 703-812-2526; e-mail: *hubertgk@state* . SUPPLEMENTARY INFORMATION: Background On May 11, 2004, OMB established title 2 of the CFR with two subtitles (69 FR 2627). Subtitle A, ”Government-wide Grants and Agreements,” contains OMB policy guidance to Federal agencies on grants and agreements. Subtitle B, “Federal Agency Regulations for Grants and Agreements,” contains Federal agencies' regulations implementing the OMB guidance, as it applies to grants and other financial assistance agreements and nonprocurement transactions. On August 31, 2005, OMB published interim final guidance for government-wide nonprocurement debarment and suspension in the **Federal Register** (70 FR 51863). The guidance was located in title 2 of the CFR as new subtitle A, chapter 1, part 180. The interim final guidance updated previous OMB guidance that was issued pursuant to Executive Order 12549, “Debarment and Suspension” (February 18, 1986), which gave government-wide effect to each agency's nonprocurement debarment and suspension actions. Section 6 of the Executive order authorized OMB to issue guidance to Executive agencies on nonprocurement debarment and suspension, including provisions prescribing government-wide criteria and minimum due process procedures. Section 3 directed Executive agencies to issue regulations implementing the Executive order that are consistent with the OMB guidelines. The interim final guidance at 2 CFR part 180 conforms the OMB guidance with the Federal agencies' November 26, 2003, update to the common rule on nonprocurement debarment and suspension (see 70 FR 51864). Although substantively the same as the common rule, OMB's interim final guidance was published in a form suitable for agency adoption, thus eliminating the need for each agency to repeat the full text of the OMB government-wide guidance in its implementing regulations. This new approach is intended to make it easier for recipients of covered transactions or respondents in suspension or debarment actions to discern agency-to-agency variations from the common rule language; reduce the volume of Federal regulations in the CFR; and streamline the process for updating the government-wide requirements on nonprocurement debarment and suspension (70 FR 51864). On November 15, 2006, OMB published a final rule adopting the interim final guidance with changes (71 FR 66431). This final rule places DOS's nonprocurement debarment and suspension regulations in subtitle B of title 2 of the CFR, along with other agencies' nonprocurement debarment and suspension rules. This action was required by the OMB interim final guidance, which was made final on November 15, 2006 (see 2 CFR 180.20, 180.25, 180.30 and 180.35). The new CFR part 601 adopts the OMB guidelines with additions and clarifications that DOS made to the common rule on nonprocurement suspension and debarment in the DOS rule published on November 26, 2003 (68 FR 66582-84). The substance of DOS's nonprocurement debarment and suspension regulations is unchanged. DOS is removing 22 CFR part 137, which was added to the CFR as part of the November 2003 common rule. DOS is also amending references in both Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (22 CFR part 145) and Government-wide Requirements for Drug-Free Workplace (22 CFR part 133) to update the reference to DOS's nonprocurement debarment and suspension regulations. Regulatory Findings Executive Order 12866 OMB has determined this rule non-significant. Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)) This regulatory action will not have a significant adverse impact on a substantial number of small entities. Unfunded Mandates Act of 1995 This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year. Paperwork Reduction Act of 1995 This final rule does not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act. Federalism (Executive Order 13132) This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Executive Order 13211 This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. Congressional Review Act The Congressional Review Act, as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. DOS will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective 30 days from the date of publication in the **Federal Register** . List of Subjects 2 CFR Part 601 Administrative practice and procedure, Debarment and suspension, Assistance programs, Reporting and recordkeeping requirements. 22 CFR Part 133 Administrative practice and procedure, Assistance programs, Drug-Free Workplace. 22 CFR Part 137 Administrative practice and procedure, Debarment and suspension, Assistance programs, Suspension and Debarment, Reporting and recordkeeping requirements. 22 CFR Part 145 Administrative practice and procedure, Assistance programs, Reporting and recordkeeping requirements. For the reasons stated in the preamble, under the authority at 22 U.S.C. 2658 and 31 U.S.C. 6101, the Department of State amends Title 2, subtitle B and Title 22, Parts 133, 137, 145 chapter I of the Code of Federal Regulations as follows: 1. Add Chapter 6, consisting of Part 601 to Subtitle B to read as follows: Title 2—Grants and Agreements Chapter 6—Department of State PART 601—NONPROCUREMENT DEBARMENT AND SUSPENSION Sec. 601.10 What does this part do? 601.20 Does this part apply to me? 601.30 What policies and procedures must I follow? Subpart A—General 601.137 Who in the Department of State may grant an exception to let an excluded person participate in a covered transaction? Subpart B—Covered Transactions 601.220 What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions? Subpart C—Responsibilities of Participants Regarding Transactions 601.332 What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business? Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions 601.437 What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435? Subpart E Through H [Reserved] Subpart I—Definitions 601.930 Debarring Official (Department of State supplement to government-wide definition at 2 CFR 180.930. 601.1010 Suspending Official (Department of State supplement to government-wide definition at 2 CFR 180.1010 Subpart J [Reserved] Authority: Sec. 2455, Pub. L. 103-355, 108; Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549; (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3); CFR, 1989 Comp., p. 235). § 601.10 What does this part do? This part adopts the Office of Management and Budget
(OMB)guidance in subparts A through I of 2 CFR part 180, as supplemented by this part, as the DOS policies and procedures for nonprocurement debarment and suspension. It thereby gives regulatory effect for DOS to the OMB guidance as supplemented by this part. This part satisfies the requirements in section 3 of Executive Order 12549, “Debarment and Suspension” (3 CFR 1986 Comp., p. 189); Executive Order 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235); and section 2455 of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355 (31 U.S.C. 6101 note). § 601.20 Does this part apply to me? This part and, through this part, pertinent portions of the OMB guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)) apply to you if you are a—
(a)Participant or principal in a “covered transaction” (see subpart B of 2 CFR part 180 and the definition of “nonprocurement transaction” at 2 CFR 180.970);
(b)Respondent in a DOS suspension or debarment action;
(c)DOS debarment or suspension official; and
(d)DOS grants officer, agreements officer, or other official authorized to enter into any type of nonprocurement transaction that is a covered transaction. § 601.30 What policies and procedures must I follow? The DOS policies and procedures that you must follow are the policies and procedures specified in each applicable section of the OMB guidance in subparts A through I of 2 CFR part 180 and any supplemental policies and procedures set forth in this part. Subpart A—General § 601.137 Who in the Department of State may grant an exception to let an excluded person participate in a covered transaction? The Procurement Executive, Office of the Procurement Executive, DOS, may grant an exception permitting an excluded person to participate in a particular covered transaction. If the Procurement Executive, Office of the Procurement Executive, DOS, grants an exception, the exception must be in writing and state the reason(s) for deviating from the government-wide policy in Executive Order 12549. Subpart B—Covered Transactions § 601.220 What contracts and subcontracts, in addition to those listed in 2 CFR 180.220, are covered transactions? In addition to the contracts covered under 2 CFR 180.220(b) of the OMB guidance, this part applies to any contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the contract is to be funded or provided by the DOS under a covered nonprocurement transaction and the amount of the contract is expected to equal or exceed $25,000. This extends the coverage of the DOS nonprocurement suspension and debarment requirements to all lower tiers of subcontracts under covered nonprocurement transactions, as permitted under the OMB guidance at 2 CFR 180.220(c) (see optional lower tier coverage in the figure in the appendix to 2 CFR part 180). Subpart C—Responsibilities of Participants Regarding Transactions § 601.332 What methods must I use to pass requirements down to participants at lower tiers with whom I intend to do business? You, as a participant, must include a term or condition in lower-tier transactions requiring lower-tier participants to comply with subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this subpart. Subpart D—Responsibilities of Federal Agency Officials Regarding Transactions § 601.437 What method do I use to communicate to a participant the requirements described in the OMB guidance at 2 CFR 180.435? To communicate to a participant the requirements described in 2 CFR 180.435 of the OMB guidance, you must include a term or condition in the transaction that requires the participant's compliance with subpart C of 2 CFR part 180, as supplemented by subpart C of this part, and requires the participant to include a similar term or condition in lower-tier covered transactions. Subpart E Through H [Reserved] Subpart I—Definitions § 601.930 Debarring official (Department of State supplement to government-wide definition at 2 CFR 180.930). The Debarring Official for the Department of State is the Procurement Executive, Office of the Procurement Executive (A/OPE). § 601.1010 Suspending official (Department of Energy supplement to government-wide definition at 2 CFR 180.1010). The Debarring Official for the Department of State is the Procurement Executive, Office of the Procurement Executive (A/OPE). Subpart J [Reserved] Title 22—Foreign Relations Chapter I—Department of State PART 133—[AMENDED] 2. The authority citation for part 133 continues to read as follows: Authority: 22 U.S.C. 2658; 41 U.S.C. 701, *et seq.* § 133.510 [Amended] 3. Section 133.510, paragraph
(c)is amended by revising the citation, “22 CFR part 137” to read: “2 CFR Part 601.” PART 137 [Removed] 4. Part 137 is removed. PART 145 [Amended] 5. The authority citation for part 145 continues to read as follows: Authority: 22 U.S.C. 2658.1; OMB Circular A-110 (64 FR 54926, October 8, 1999). § 145.13 [Amended] 4. Section 145.13 is amended by revising the citation, “22 CFR part 137” to read, “2 CFR 601.” § 145.44 [Amended] 5. Section 145.44 is amended by revising the citation, “22 CFR part 137” to read, “2 CFR 601.” § 145.62 [Amended] 6. Section 145.62 paragraph
(d)is amended by revising the citation, “22 CFR part 137” to read, “2 CFR 601.” Appendix A to Part 145 [Amended] 7. Appendix A to part 145 is amended by revising the second sentence of paragraph
(8)to read, “No contract shall be made to parties listed on the General Services Administration's Excluded Parties List System ( *http://www.epls.gov* ) from Federal Procurement or Nonprocurement Programs in accordance with Executive Orders 12549 and 12689, ‘Debarment and Suspension.’ ” Dated: February 26, 2007. Georgia Hubert, Director, Office of the Procurement Executive, Federal Assistance Division, Department of State. [FR Doc. E7-3872 Filed 3-6-07; 8:45 am] BILLING CODE 4710-24-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 52 [Docket # AMS-FV-07-0025; FV-05-379] RIN 0581-AC56 Processed Fruits and Vegetables AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule revises the regulations governing inspection and certification for processed fruits, vegetables, and processed products by increasing the fees charged for these products by 19 to 26 percent. Furthermore, it revises the regulations so applicants entering into an in-plant inspection contract with the Agricultural Marketing Service
(AMS)will incur the costs for the plant survey and sanitation inspection. Finally, the revision provides that applicants entering into a year-round inspection contract, less than year-round (four or more consecutive 40 hour weeks) contract, or lot inspection will incur costs for Sunday differential when an employee works on Sunday. Also affected are the fees charged to persons required to have inspections on imported commodities in accordance with the Agricultural Marketing Agreement Act of 1937. In addition, various editorial changes are being made to enhance clarity. These revisions are necessary in order to recover, as nearly as practicable, the costs of performing inspection services under the Agricultural Marketing Act of 1946 and to ensure the program's financial stability. DATES: Effective April 6, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Terry B. Bane at the Office of the Branch Chief, Processed Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, STOP 0247, Washington, DC 20250-0247, telephone,
(202)720-4693, or e-mail *Terry.Bane@usda.gov* . SUPPLEMENTARY INFORMATION: Executive Order 12866 and Regulatory Flexibility Act This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. Also, pursuant to the requirements of the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. AMS regularly reviews its user fee financed programs to determine if the fees are adequate. The Agency has and will continue to identify and implement appropriate changes to reduce its costs. Such actions can reduce the need for fee increases. The processed fruit and vegetable grading and inspection service administers a number of user fee programs with established fee schedules to offset the cost of the service. The fee schedule for the subject lot, year-round, and less than year-round processed fruit and vegetable inspection programs was last revised on October 30, 2003 (68 FR 61733). However, even with cost control efforts, the existing fee schedule for these programs will not generate sufficient revenues to cover costs and sustain an adequate reserve balance, 4 months of costs, as called for by Agency policy (AMS Directive 408.1). At the start of Fiscal Year
(FY)2006, the processed fruit and vegetable grading and inspection service had a reserve balance of $8 million, of which, the lot, year-round, and less than year-round programs accounted for $3.4 million. AMS projects that the costs for the services covered by this final rule will rise from $15 million in FY 2005 to $15.4 million in FY 2006. Revenues for FY 2006 are projected to be at $15.0 million. The increase in costs is primarily a result of rising employee salaries and benefits. For example, since the last fee schedule change, employees have received a 3.1 and 3.4 percent pay increase effective January 2005 and January 2006, respectively. For FY 2006, the end-of-year reserve balance will decline from $3.4 million to $3.0 million, and the months of reserve will fall from 2.6 months to 2.4 months. For FY 2007, without a fee increase, the end-of-year reserve balance would be $2.5 million; the months of reserve will be 1.9; with the projected costs of $15.8 million and revenues of $15.3 million. With the fee increase, these services will generate sufficient revenue so that by the end of FY 2007, the reserve balance will be $5.3 million and 4.0 months. AMS will perform fee analyses to determine if further fee adjustments in FY 2007 are necessary to maintain an adequate reserve and ensure fiscal stability. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The first action increases user fee revenue generated under the lot inspection program and the year-round and less than year-round inspection programs by an estimated $1.5 million in FY 2007. The second action will recoup the cost for a plant survey and sanitation inspection performed in plants entering into an in-plant inspection contract with AMS. Currently, fees that are charged for a plant survey and sanitation inspection under § 52.48 are credited back to plants entering into an in-plant inspection contract with AMS within 60 days of the survey. There are presently 239 plants with an in-plant inspection contract not being charged for the plant survey and sanitation inspection. Billing for the plant survey and sanitation inspection will increase user fee revenue generated under the year-round and less than year-round inspection programs by approximately $143,000 annually. The third action will recoup the cost for Sunday differential when an employee works on Sunday for plants entering into a year-round in-plant contract, entering into a less than year-round in-plant (four or more consecutive 40 hour weeks) contract, and not under contract. During calendar year 2004, there were 3,562 Sunday differential hours not charged at premium rate to applicants. Billing applicants for Sunday differential will increase user fee revenue generated under the lot inspection program, the year-round inspection program, and the less than year-round inspection program by approximately $35,000 annually. The forth action will change the word “approvement” to “approved” in § 52.2, Inspection Services; types of, paragraph
(d)Pack certification. These actions are authorized under the AMA of 1946 [7 U.S.C. 1622(h)] which provides that the Secretary of Agriculture assess and collect “such fees as will be reasonable and as nearly as may be to cover the costs of services rendered * * *” There are more than 1,250 users of Processed Products Branch's lot, year-round, and less than year-round inspection services (including applicants who must meet import requirements, 1 inspections which amount to under two percent of all lot inspections performed). A small portion of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). 1 Section 8e of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-604), requires that whenever the Secretary of Agriculture issues grade, size, quality or maturity regulations under domestic marketing orders for certain commodities, the same or comparable regulations on imports of those commodities must be issued. Import regulations apply only during those periods when domestic marketing order regulations are in effect. Currently, there are 4 processed commodities subject to 8e import regulations: Canned ripe olives, dates, prunes, and processed raisins. A current listing of the regulated commodities can be found in 7 CFR Parts 944 and 999. There are no additional reporting, recordkeeping, or other compliance requirements imposed upon small entities as a result of this rule. AMS has not identified any other federal rules which may duplicate, overlap, or conflict with this final rule. The impact on all businesses, including small entities, is very similar. Further, even though fees will be increased, the amount of the increase should not significantly affect these entities. This fee increase moves the program towards an adequate reserve and financial stability. Considering the alternatives, without the fee increase, this result would not be accomplished. Finally, except for those applicants who are required to obtain inspections in connection with certain imports, these businesses are under no obligation to use these inspection services. Executive Order 12988 The rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect and doesn't preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this final rule. Final Action The AMA authorizes official inspection, grading, and certification for processed fruits, vegetables, and processed products made from them. The AMA provides that the Secretary collect reasonable fees from the users of the services to cover, as nearly as practicable, the costs of the services rendered. This final rule amends the schedule for fees for inspection services rendered to the processed fruit and vegetable industry to reflect the costs necessary to operate the program. AMS regularly reviews its user fee programs to determine if the fees are adequate. While AMS continues to pursue opportunities to reduce its costs, the existing fee schedule will not generate sufficient revenues to cover lot, year-round, and less than year-round inspection program costs while maintaining an adequate reserve balance. Based on the Agency's analysis of increasing program costs, AMS is
(1)increasing the fees relating to lot, year-round, and less than year-round inspection services,
(2)billing in-plant applicants for plant survey and sanitation inspection, and
(3)billing applicants for Sunday differential when applicable. At the start of FY 2006, the processed fruit and vegetable grading and inspection service had a reserve balance of $8 million, of which, the lot, year-round, and less than year-round programs accounted for $3.4 million. AMS projects that the costs for the services covered by this final rule will rise from $15 million in FY 2005 to $15.4 million in FY 2006. Revenues for FY 2006 are projected to be at $15.0 million. The increase in costs is primarily a result of rising employee salaries and benefits. For example, since the last fee schedule change, employees have received a 3.1 and 3.4 percent pay increase effective January 2005 and January 2006, respectively. For FY 2006, the end-of-year reserve balance will decline from $3.4 million to $3.0 million, and the months of reserve will fall from 2.6 months to 2.4 months. For FY 2007, without a fee increase, the end-of-year reserve balance would be $2.5 million; the months of reserve would be 1.9; with the projected costs of $15.8 million and revenues of $15.3 million. With the fee increase these services will generate sufficient revenue so that by the end of FY 2007, the reserve balance will be $5.3 million and 4.0 months. AMS will perform fee analyses to determine if further fee adjustments in FY 2007 are necessary to maintain an adequate reserve and ensure fiscal stability. For inspection services charged on a contract basis under § 52.51, overtime work will also continue to be charged as provided in that section. The following fee schedule compares current fees and charges with final fees and charges for processed fruit and vegetable inspection as found in 7 CFR 52.42-52.51. Unless otherwise provided for by written agreement between the applicant and the Administrator, the charges in the schedule of fees as found in § 52.42 are: Current Final $52.00/hr. $62.00/hr. Charges for travel and other expenses as found in § 52.50 are: Current Final $52.00/hr. $62.00/hr. Charges for year-round in-plant inspection services on a contract basis as found in § 52.51
(c)are:
(1)For inspector assigned on a year-round basis: Current Final $39.00/hr. $49.00/hr.
(2)For inspector assigned on less than a year-round basis: Each inspector: Current Final $52.00/hr. $65.00/hr. Charges for less than year-round in-plant inspection services (four or more consecutive 40 hour weeks) on a contract basis as found in § 52.51
(d)are:
(1)Each inspector: Current Final $52.00/hr. $65.00/hr. Furthermore, AMS will recoup the cost for a plant survey and sanitation inspection performed in plants entering into an in-plant inspection contract with AMS. Currently, fees that are charged for a plant survey and sanitation inspection are credited back to plants entering into an in-plant inspection contract with AMS within 60 days of the survey. There are presently 239 plants with an in-plant inspection contract not being charged for the plant survey and sanitation inspection. Billing for the plant survey and sanitation inspection will increase user fee revenue generated under the year-round and less than year-round inspection programs by approximately $143,000 annually. In addition, AMS will recoup the cost for Sunday differential for plants entering into a year-round in-plant contract, entering into a less than year-round in-plant (four or more consecutive 40 hour weeks) contract, and not under contract. During calendar year 2004, there were 3,562 Sunday differential hours not charged to plants. Billing plants for Sunday differential will increase user fee revenue generated under the lot inspection program, the year-round inspection program, and the less than year-round inspection program by approximately $35,000 annually. Finally, the last action will change the word “approvement” to “approved” in § 52.2, Inspection Service; types of, paragraph
(d)Pack certification. A notice of proposed rulemaking was published in the **Federal Register** on July 11, 2006, (71 FR, No. 132, 39017) with a thirty-day comment period. AMS received two comments during this period. The first comment was received from the Association of Food Industries, Inc. (AFI). AFI asked how this revision would affect imported products. The fee increase applies to the voluntary inspection and certification of processed fruits and vegetables whether domestic or imported. Further, as noted previously under 8e of the Agricultural Marketing Agreement Act of 1937, certain imported processed commodities are subject to import regulations which include inspection requirements. The second comment was received from an individual who expressed concurrence with the revision. List of Subjects in 7 CFR Part 52 Food grades and standards, Food labeling, Frozen foods, Fruit juices, Fruits, Reporting and record keeping requirements, and Vegetables. For the reasons set forth in the preamble, 7 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 7 U.S.C. 1621-1627. § 52.2 [Amended] 2. In § 52.2, under the term “Inspection Service; types of”, in paragraph
(d)under the term “pack certification” the word “approvement” is revised to read “approved”. 3. In § 52.42, the figure “$52.00” is revised to read “$62.00” and a sentence is added at the end of the section to read as follows: § 52.42 Schedule of fees. * * * A twenty-five
(25)percent Sunday differential charge will be made for all work performed on Sunday. 5. Section 52.48 is revised to read as follows: § 52.48 Charges for plant survey and inspection. The fees to be charged for a plant survey and inspection shall be at the rates prescribed in § 52.42 and § 52.51. § 52.50 [Amended] 6. In § 52.50, the figure “$52.00” is revised to read “$62.00”. 7. In § 52.51, paragraph (c)(1), the figure “$39.00” is revised to read “$49.00”, in paragraph (c)(2), the figure “$52.00” is revised to read “$65.00”, and in paragraph (d)(1), the figure “$52.00” is revised to read “$65.00” and new paragraphs (c)(6) and (d)(6) are added to read as follows: § 52.51 Charges for inspection services on a contract basis.
(c)* * *
(6)Sunday differential. A 25 percent Sunday differential will be charged for all work performed on Sunday.
(d)* * *
(6)Sunday differential. A 25 percent Sunday differential will be charged for all work performed on Sunday. Dated: March 1, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-3937 Filed 3-6-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 431 [Docket Nos. EE-RM/STD-03-100, EE-RM/STD-03-200, and EE-RM/STD-03-300] RIN Nos. 1904-AB16, 1904-AB17, and 1904-AB44 Energy Efficiency Program for Certain Commercial and Industrial Equipment: Efficiency Standards for Commercial Heating, Air-Conditioning, and Water-Heating Equipment AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Final rule. SUMMARY: The Energy Policy and Conservation Act, as amended (EPCA), establishes energy conservation standards for various commercial and industrial equipment. EPCA further provides with respect to certain equipment covered by this rule, that if the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the Illuminating Engineering Society of North America (IESNA) amend ASHRAE/IESNA Standard 90.1 as in effect on October 24, 1992, then the Department of Energy
(DOE)must establish amended national standards at the ASHRAE/IESNA Standard 90-1 minimum energy efficiency levels unless DOE determines that evidence supports adoption of higher standard levels or certain other circumstances exist. ASHRAE/IESNA amended ASHRAE/IESNA Standard 90.1 on October 29, 1999 (ASHRAE/IESNA Standard 90.1-1999), and DOE initiated this rulemaking to consider amendments to the national standards. DOE has concluded that it lacks authority to pursue higher standards for gas-fired instantaneous water heaters and large commercial packaged boilers. For small commercial packaged boilers with capacities greater than 300,000 Btu/h and less than or equal to 2.5 million British thermal units per hour, DOE is declining to adopt revised efficiency standards contained in the ASHRAE/IESNA Standard 90.1-1999 because the revised levels are less stringent than the current national standard. In addition, DOE has decided to conduct a separate rulemaking to consider whether standards at higher levels than those in the ASHRAE/IESNA Standard 90.1-1999 are warranted for packaged terminal air conditioners and packaged terminal heat pumps. Finally, DOE has concluded it does not have the authority to adopt, as uniform national standards, efficiency standards contained in Addenda f and b, respectively, to ASHRAE/IESNA Standard 90.1-2004 for three-phase air conditioners and heat pumps with cooling capacities less than 65,000 British thermal units per hour, and single-package vertical air conditioners and single-package vertical heat pumps with cooling capacities less than 65,000 Btu/h. DATES: *Effective Date:* April 6, 2007. FOR FURTHER INFORMATION CONTACT: Maureen Murphy, Project Manager, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-0598, or e-mail *Maureen.Murphy@ee.doe.gov.* Francine Pinto, Esq., U.S. Department of Energy, Office of the General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103,
(202)586-9507, or e-mail *Francine.Pinto@hq.doe.gov.* SUPPLEMENTARY INFORMATION: I. Introduction A. Summary of Today's Actions B. Authority C. Background 1. ASHRAE/IESNA Standard 90.1 and the Department of Energy's Response 2. Subsequent Action by the Department of Energy 3. The Energy Policy Act of 2005 II. Discussion of Comments and DOE Final Rule A. Large Commercial Packaged Boilers (Greater Than 2.5 million British Thermal Units Per Hour) and Gas-Fired Instantaneous Water Heaters B. Small Commercial Packaged Boilers (Greater Than 300,000 British Thermal Units Per Hour and Less Than or Equal to 2.5 million British Thermal Units Per Hour) C. Packaged Terminal Air Conditioners and Packaged Terminal Heat Pumps D. Three-Phase Air Conditioners and Heat Pumps less than 65,000 British Thermal Units Per Hour E. Single-Package Vertical Air Conditioners and Single-Package Vertical Heat Pumps Less Than 65,000 Btu/h F. Single-Package Vertical Air Conditioners and Single-Package Vertical Heat Pumps Greater Than or Equal to 65,000 Btu/h and Less Than 240,000 Btu/h III. Procedural Requirements A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under the Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Congressional Notification IV. Approval of the Office of the Secretary I. Introduction A. Summary of Today's Actions Today's final rule addresses five categories of commercial equipment 1 :
(1)Small and large commercial packaged boilers;
(2)gas-fired instantaneous water heaters;
(3)packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs);
(4)three-phase air conditioners
(ACs)and heat pumps
(HPs)with cooling capacities less than 65,000 British thermal units per hour (Btu/h); and
(5)single-package vertical air conditioners (SPVAC) and single-package vertical heat pumps (SPVHP), collectively referred to as single package vertical units (SPVUs). 1 DOE uses the terms “product” and “equipment” interchangeably in this final rule. Where DOE refers to the categories of “residential products” covered by 10 CFR Part 430, DOE uses the phrase “residential products.” By today's action, DOE is publishing a final rule that prescribes no amended standard. As discussed in section II.A through II.F of this notice, DOE has decided:
(1)Not to amend the standards for large commercial packaged boilers (greater than 2.5 million Btu/h) and gas-fired instantaneous water heaters because ASHRAE/IESNA did not amend the levels for these products in ASHRAE/IESNA Standard 90.1-1999 and, thus, did not trigger the provision requiring DOE to amend the standards established under EPCA;
(2)Not to amend the standards for small commercial packaged boilers (greater than 300,000 Btu/h and less than or equal to 2.5 million Btu/h) because the ASHRAE/IESNA Standard 90.1-1999 levels for these products are less stringent than the existing EPCA standards;
(3)Not to amend the standards for packaged terminal air conditioners and packaged terminal heat pumps because DOE will conduct a separate rulemaking to determine if clear and convincing evidence supports standard levels higher than those in ASHRAE/IESNA Standard 90.1-1999;
(4)Not to amend the standards for three-phase air conditioners and heat pumps less than 65,000 Btu/h because EPACT 2005 amended EPCA to provide that only an amendment to ASHRAE/IESNA Standard 90.1 as in effect on January 1, 2010, triggers DOE to amend the standards established under EPCA;
(5)Not to amend the standards for single-package vertical air conditioners and single-package vertical heat pumps less than 65,000 Btu/h because EPACT 2005 amended EPCA to provide that only an amendment to ASHRAE/IESNA Standard 90.1 as in effect on January 1, 2010, triggers DOE to amend the standards established under EPCA; and
(6)Not to amend the standards for single-package vertical air conditioners and single-package vertical heat pumps greater than or equal to 65,000 Btu/h and less than 240,000 Btu/h because DOE has determined that these products are covered by standards established by EPACT 2005 for large commercial package air conditioning and heating equipment with cooling capacities greater than or equal to 65,000 Btu/h and less than 760,000 Btu/h. B. Authority Part C of Title III of EPCA addresses the energy efficiency of certain types of commercial and industrial equipment. (42 U.S.C. 6311-6317) It contains, for example, specific mandatory energy conservation standards for tankless, gas-fired IWHs; PTACs and PTHPs; small and large commercial packaged boilers; and commercial package air-conditioning and heating equipment. The latter category includes three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h, as well as SPVACs and SPVHPs with cooling capacities less than 65,000 Btu/h. (42 U.S.C. 6313(a)(1)-(5)) The energy conservation standards set forth in EPCA for these and related types of commercial and industrial equipment generally correspond to the levels in ASHRAE/IESNA Standard 90.1, effective October 24, 1992 (ASHRAE/IES Standard 90.1-1989). Pursuant to section 342(a)(6)(A)(i) of EPCA, DOE, except in certain circumstances, must amend energy conservation standards for the listed ASHRAE equipment if ASHRAE amends ASHRAE/IESNA Standard 90.1. With respect to certain types of commercial and industrial equipment, including all of the equipment covered by today's rule, prior to the enactment of Energy Policy Act of 2005 (EPACT 2005), any amendment of ASHRAE/IES Standard 90.1, as in effect on October 24, 1992 (the date of enactment of the Energy Policy Act of 1992) would trigger DOE action for adopting amended uniform national standards for this equipment. EPACT 2005 changed the October 24, 1992, date for small and large commercial package air conditioning and heating equipment, so that only an amendment of ASHRAE/IES Standard 90.1 as in effect on January 1, 2010, would trigger DOE action to adopt amended uniform national standards. Pursuant to EPACT 2005, this provision also applies to “very large” commercial package air conditioning and heating equipment. *Id.* Any SPVU with a cooling capacity below 760,000 Btu/h would be within the definition of small, large, or very large commercial package air conditioning and heating equipment. (42 U.S.C. 6311(8)(A)-(D)) Under certain circumstances delineated in EPCA, DOE may adopt standards more stringent than the levels in amendments to ASHRAE/IES Standard 90.1. (42 U.S.C. 6313(6)(A)(i)-(ii)) In any such rulemaking, the rule must contain the amended standard. The Secretary may not prescribe any amended standard that increases maximum allowable energy use, or decreases the minimum required energy efficiency, of the covered equipment. (42 U.S.C. 6313(a)(6)(B)(ii)) Furthermore, the Secretary may not prescribe an amended standard if the Secretary publishes a finding that interested persons have established by a preponderance of evidence that the amended standard is likely to result in the unavailability in the United States of products with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6313(a)(6)(B)(ii)) C. Background 1. ASHRAE/IESNA Standard 90.1 and the Department of Energy's Response 2 2 A more detailed discussion of the ASHRAE process can be found in DOE's Notice of Availability and request for public comment on this rulemaking published on March 13, 2006 in the **Federal Register** . 71 FR 12634. On October 29, 1999, ASHRAE approved and published ASHRAE/IESNA Standard 90.1-1999, which addressed efficiency levels for many categories of commercial heating, ventilating, air-conditioning (HVAC), and water-heating equipment covered by EPCA. ASHRAE/IESNA Standard 90.1-1999 revised the efficiency levels in ASHRAE/IESNA Standard 90.1-1989 for certain equipment. For the remaining equipment, ASHRAE left the preexisting levels in place after considering revising the levels for some equipment and deferring consideration of others. Following publication of ASHRAE/IESNA Standard 90.1-1999, DOE performed a screening analysis for the categories of equipment for which ASHRAE addressed efficiency levels in ASHRAE/IESNA Standard 90.1, to determine what action DOE would take with respect to these levels. 65 FR 10984. Upon completion of the screening analysis, DOE published a notice of document availability and public workshop on May 15, 2000. The May 15, 2000, notice invited written comments on the screening analysis and DOE's planned actions and described the screening analysis and announced its availability to the public. 65 FR 30929. For each equipment category for which ASHRAE adopted or considered an amended efficiency level, the notice stated what action DOE was inclined to take. 65 FR 30935. ASHRAE did not amend the standard levels for three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h at that time. However, it was DOE's understanding that the ASHRAE Standard 90.1 committee intended to amend the levels once the DOE rulemaking for residential central air conditioners energy efficiency standards had been completed. Based on ASHRAE's action and DOE's understanding of the ASHRAE Standard 90.1 committee's intention to adopt the same level as DOE adopted for residential central air conditioners, DOE stated that it had decided to take no action until ASHRAE had amended ASHRAE/IESNA Standard 90.1's efficiency levels for three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h. 71 FR 12643. In Addendum f to ASHRAE/IESNA Standard 90.1-2004, ASHRAE adopted the same minimum energy efficiency standards for this equipment as DOE had adopted for residential central air conditioners. ASHRAE adopted Addendum f to ASHRAE/IESNA Standard 90.1-2004 on April 1, 2006. Following the public meeting on July 11, 2000, DOE adopted the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 as uniform national standards to replace existing EPCA levels for 18 categories of commercial equipment in the January 2001 final rule. 66 FR 3335, 3336-37, 3349-52 (January 12, 2001). DOE also rejected the ASHRAE/IESNA Standard 90.1-1999 levels for electric water heaters, leaving the EPCA level in place for that equipment. 66 FR 3337. In this same final rule, for 11 categories of commercial equipment, 3 DOE stated it would evaluate whether to adopt more stringent standards than those contained in ASHRAE/IESNA Standard 90.1-1999. 66 FR 3336-38, 3349-52. For the four categories of three-phase air-conditioning equipment that ASHRAE had not addressed in ASHRAE/IESNA Standard 90.1-1999, DOE understood that ASHRAE intended to amend its efficiency levels for this equipment in conjunction with the then-pending DOE standards rulemaking for similar, single-phase residential products. 4 The standard levels prescribed in EPCA and ASHRAE/IESNA Standard 90.1-1999 for these 15 equipment categories 5 appear in Tables I.1 and I.2. EPACT 2005 included energy efficiency standards for some of these commercial air conditioners and heat pumps; those new standards also appear in Tables I.1 and I.2. EPACT 2005 prescribed more stringent standards than those contained in ASHRAE/IESNA Standard 90.1-1999 for commercial package air-conditioning and heating equipment with cooling capacities between 65,000 Btu/h and 240,000 Btu/h as listed in Table I.1. 6 3 These eleven products include small commercial package air-conditioning and heating equipment with capacities greater than or equal to 65,000 Btu/h and less than 135,000 Btu/h, large commercial package air-conditioning and heating equipment with capacities greater than or equal to 135,000 Btu/h and less than 240,000 Btu/h, packaged terminal air conditioners and heat pumps, small, gas-fired and oil-fired, commercial packaged boilers greater than 300,000 Btu/h and less than or equal to 2,500,000 Btu/h, large, gas-fired and oil-fired, commercial packaged boilers greater than 2,500,000 Btu/h, and gas-fired instantaneous water heaters. 4 The four categories of three-phase commercial air conditioners and air conditioning hear pumps are: Commercial three-phase, air-source, split-system air conditioners with cooling capacities less than 65,000 Btu/h, commercial three-phase, air-source, single split-system heat pumps with cooling capacities less than 65,000 Btu/h, commercial three-phase, air-source, single package air conditioners with cooling capacities less than 65,000 Btu/h, and commercial three-phase, air-source, single package heat pumps with cooling capacities less than 65,000 Btu/h. 5 These fifteen products include the eleven products and four categories of commercial three-phase commercial air conditioners and air conditioning heat pumps identified above. 6 SPVUs are specific types of small and large commercial package air-conditioning and heating equipment. ASHRAE did not recognize and evaluate them as separate equipment categories in ASHRAE/IESNA Standard 90.1-1999, nor did EPCA recognize them as separate equipment categories. Table I.1.—Energy Conservation Standards for Commercial Air Conditioners and Heat Pumps Product Capacity/characteristics Standard efficiency level* EPCA ASHRAE/IESNA standard 90.1-1999 EPACT 2005 Small Commercial Package Air-Conditioning and Heating Equipment <65 kBtu/h Air-Cooled, 3-Phase, Central Split-System AC, HP SEER: 10.0 HSPF: 6.8 SEER: 10.0 HSPF: 6.8 Not addressed. <65 kBtu/h Air-Cooled, 3-Phase, Central Single-Package AC, HP SEER: 9.7 HSPF: 6.6 SEER: 9.7 HSPF: 6.6 Not addressed. ≥65 kBtu/h and <135 kBtu/h Air-Cooled, Central AC EER: 8.9 ** EER: 10.3 ** EER: 11.2 ** †† ≥65 kBtu/h and <135 kBtu/h Air-Cooled, Central HP EER: 8.9 ** COP: 3.0 † EER: 10.3 ** COP: 3.2 † EER: 11.0 ** COP: 3.3 † Large Commercial Package Air-Conditioning and Heating Equipment ≥135 kBtu/h and <240 kBtu/h Air-Cooled, Central AC EER: 8.5 ** EER: 9.7 ** EER: 11.0 ** †† ≥135 kBtu/h and <240 kBtu/h Air-Cooled, Central HP EER: 8.5 ** COP: 2.9 † EER: 9.3 ** COP: 3.1 † EER: 10.6 ** COP: 3.2 † Packaged Terminal Air Conditioners and Heat Pumps Air-Cooled EER, COP vary by capacity according to formulas for each EER, COP vary by capacity according to formulas for each (different formulas for new construction and replacement equipment) Not addressed. *Heating efficiency levels do not apply to cooling-only air conditioners. **At 95 F dry-bulb temperature. † At 47 F dry-bulb temperature. †† This EER level applies to equipment that has electric resistance heat or no heating. For all other package air-conditioning equipment with heating system types that are integrated into the equipment, deduct 0.2 EER. Table I.2.—Energy Conservation Standards for Commercial Boilers and Water Heaters* Product Capacity/characteristics Standard efficiency level** EPCA ASHRAE/IESNA standard 90.1-1999 Packaged Boilers, Oil- and Gas-Fired >300 kBtu/h ≤2,500 kBtu/h Combustion Efficiency ** : Gas-Fired—80% Oil-Fired—83% Thermal Efficiency ** : Gas-Fired—75% Oil-Fired—78% >2,500 kBtu/h Combustion Efficiency ** : Gas-Fired—80% Oil-Fired—83% Combustion Efficiency ** : Gas-Fired—80% Oil-Fired—83% Gas-Fired Instantaneous Water Heaters <10 gallons Thermal Efficiency: 80% Thermal Efficiency: 80% * EPACT 2005 did not address this equipment. ** At maximum rated capacity. 2. Subsequent Action by the Department of Energy DOE reviewed the energy savings potential of increased energy efficiency levels for several types of equipment covered by ASHRAE/IESNA Standard 90.1-1999 and, on March 13, 2006, issued a notice of document availability and request for comments (hereafter referred to as the March 2006 NOA) in the **Federal Register** announcing the availability of a Technical Support Document
(TSD)that set forth this review, and requested public comment on the TSD. 71 FR 12634. In the March 2006 NOA, DOE also announced the approaches it was inclined to take for the equipment as summarized in Table I.3, below. *Id* at 12637. Table I.3.—Summary of Potential DOE Actions by Product as Stated in the March 2006 NOA Product DOE's action PTACs and PTHPs Initiate a rulemaking to consider more stringent standards. Small Commercial Packaged Boilers (0.3-2.5 MMBtu/h) Reject ASHRAE/IESNA Standard 90.1-1999 efficiency levels. Gas-Fired IWHs DOE does not have authority to pursue a standard level higher than those specified in ASHRAE/IESNA Standard 90.1-1999. Large Commercial Packaged Boilers (>2.5 MMBtu/h) DOE does not have authority to pursue a standard level higher than those specified in ASHRAE/IESNA Standard 90.1-1999. Three-Phase ACs and HPs (<65,000 Btu/h) Adopt Addendum f to ASHRAE/IESNA Standard 90.1-2004 once ASHRAE formally adopts this addendum. SPVUs (<65,000 Btu/h) DOE invited comments on the potential energy savings estimates and the appropriateness of adopting as federal standards the efficiency levels contained in Addendum b of ASHRAE/IESNA Standard 90.1-2004. 3. The Energy Policy Act of 2005 DOE's authority to amend Federal energy conservation standards for equipment covered by ASHRAE/IES Standard 90.1 (ASHRAE equipment) is found in 42 U.S.C. 6313(a)(6), which, as amended by EPACT 2005, states as follows: (6)(A)(i) If ASHRAE/IES Standard 90.1, as in effect on January 1, 2010, is amended with respect to any small commercial package air conditioning and heating equipment, large commercial package air conditioning and heating equipment, and very large commercial package air conditioning and heating equipment, or if ASHRAE/IES Standard 90.1, as in effect on October 24, 1992, is amended with respect to any packaged terminal air conditioners, packaged terminal heat pumps, warm-air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, or unfired hot water storage tanks, the Secretary shall establish an amended uniform national standard for that product at the minimum level for each effective date specified in the amended ASHRAE/IES Standard 90.1, unless the Secretary determines, by rule published in the **Federal Register** and supported by clear and convincing evidence, that adoption of a uniform national standard more stringent than such amended ASHRAE/IES Standard 90.1 for such product would result in significant additional conservation of energy and is technologically feasible and economically justified.
(ii)If ASHRAE/IES standard 90.1 is not amended with respect to small commercial package air conditioning and heating equipment, large commercial package air conditioning and heating equipment, and very large commercial package air conditioning and heating equipment during the 5-year period beginning on the effective date of a standard, the Secretary may initiate a rulemaking to determine whether a more stringent standard—
(I)Would result in significant additional conservation of energy; and
(II)Is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(i)-(ii)) 7 Pursuant to this section, DOE's authority to amend energy conservation standards for the listed ASHRAE equipment is triggered by ASHRAE action amending ASHRAE/IES Standard 90.1. With respect to small and large commercial package air conditioning and heating equipment (as well as all other ASHRAE equipment listed in this section), prior to the enactment of EPACT 2005, any amendment of ASHRAE/IES Standard 90.1, as in effect on October 24, 1992, (the date of enactment of the Energy Policy Act of 1992) would trigger DOE action for adopting amended uniform national standards. EPACT 2005 changed the October 24, 1992, date for the commercial package air conditioning and heating equipment, so that only an amendment of ASHRAE/IES 90.1 as in effect on January 1, 2010, would trigger DOE action to adopt amended uniform national standards. This provision applies to small and large air conditioning and heating equipment, as well as to very large equipment, which EPACT 2005 added to EPCA. 7 DOE does not have the authority to establish energy conservation standards for the ASHRAE equipment on its own initiative. ASHRAE sets voluntary guidelines for this equipment in ASHRAE/IESNA Standard 90.1. In addition, section 136(b) of EPACT 2005 amended section 342(a) of EPCA (42 U.S.C. 6313(a)) by prescribing new energy conservation standards for certain small (greater than or equal to 65,000 Btu/h to less than 135,000 Btu/h), for large (greater than or equal to 135,000 Btu/h to less than 240,000 Btu/h), and for very large (greater than or equal to 240,000 Btu/h to less than 760,000 Btu/h) commercial package air conditioners and heat pumps. 8 DOE concluded that the EPACT 2005 standards implicitly cover SPVUs greater than or equal to 65,000 Btu/h to less than 760,000 Btu/h as further discussed below, but EPACT 2005 standards do not address or cover SPVUs less than 65,000 Btu/h. 71 FR 12634, 12638. 8 Single package vertical air conditioners and single package vertical heat pumps that are within these capacity ranges are small, large and very large commercial package air conditioners and heat pumps since they are commercial products ( *i.e.* , distributed for commercial applications) and meet EPCA's definition for “commercial package air conditioning and heating equipment.” (42 U.S.C. 6311(8)) II. Discussion of Comments A. Large Commercial Packaged Boilers (Greater Than 2.5 Million British Thermal Units Per Hour) and Gas-Fired Instantaneous Water Heaters EPCA specifies minimum energy conservation standards for certain categories of commercial equipment, including gas-fired IWHs and large commercial packaged boilers. (42 U.S.C. 6313(a)(1)-(5)) ASHRAE/IESNA Standard 90.1 also covers these types of equipment, and the efficiency requirements in EPCA correspond with the ASHRAE/IESNA Standard 90.1-1989 levels effective October 24, 1992. (42 U.S.C. 6313(a)(4) and (5)) ASHRAE, in adopting ASHRAE/IESNA Standard 90.1-1999, left in place the pre-existing ASHRAE/IES Standard 90.1-1989 minimum efficiency levels for gas-fired IWHs and large commercial packaged boilers. Thus, the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 for this equipment are the same as the ASHRAE/IES Standard 90.1-1989 and EPCA levels. In the March 1, 2000, notice of preliminary screening analysis, the May 15, 2000, notice of document availability and public workshop, and the January 2001 final rule, DOE indicated its belief that it had the authority to consider more stringent standard levels for equipment for which ASHRAE had considered adopting more stringent levels but declined to change the efficiency levels for such equipment when publishing ASHRAE/IESNA Standard 90.1-1999. 71 FR 12642. However, in the March 2006 NOA, DOE reexamined its authority under EPCA to amend standards for gas-fired IWHs and large commercial package boilers and concluded that its earlier view was in error. 71 FR 12642 Specifically, DOE has concluded that the statutory trigger that requires DOE to adopt uniform national standards based on ASHRAE action is for ASHRAE to amend a standard for any of the equipment listed in EPCA section 342(a)(6)(A)(i) (42 U.S.C. 6313 (a)(6)(A)(i)) by increasing the energy efficiency level for that equipment type. If ASHRAE merely considers raising the standards for any of the listed equipment in this section, except for small, large, and very large commercial package air conditioning and heating equipment, but ultimately decides to leave the standard levels unchanged or lowers the standard, DOE does not have the authority to conduct a rulemaking for higher standards for that equipment. With respect to small, large, and very large commercial package air conditioning and heating equipment, under 42 U.S.C. 6313 (a)(6(A)(ii), DOE has the authority to initiate a rulemaking proceeding to determine whether more stringent standards are justified if ASHRAE has not amended standards for this equipment within five years following the effective date of a standard. Furthermore, if ASHRAE amends its standards with more stringent standards for a specific subset of the listed equipment, consistent with the above exception, DOE only has the authority to adopt the ASHRAE levels for the specific subset of equipment and its effective dates specified in the amended ASHRAE standard. DOE may under certain circumstances delineated in EPCA adopt a standard more stringent than the amended level in ASHRAE/IESNA Standard 90.1. Before DOE can adopt an ASHRAE standard for a product pursuant to section 342, the plain language in section 342 requires that ASHRAE must have amended the standard in ASHRAE/IESNA Standard 90.1 for that specific product. Once ASHRAE has amended a standard for “any” equipment listed in section 342, section 342 requires the Secretary to “establish an amended uniform national standard for *that* product at the minimum level for each effective date specified in the amended ASHRAE/IESNA Standard 90.1, unless the Secretary determines * * * that adoption of a * * * more stringent [standard] for *such* product” is warranted. ( *Id. Emphasis added.* ) The authority provided in section 342(a)(6)(a)(i) is clearly limited to only those products for which ASHRAE has amended the standard; *i.e.* , authority for “that product.” The intent of section 342, generally, is for DOE to maintain uniform national standards consistent with those set in ASHRAE/IESNA Standard 90.1. Given this intent, if ASHRAE has not amended a standard for a product subject to section 342, there is no change which would require action by DOE to consider amending the uniform national standard to maintain consistency with ASHRAE/IESNA Standard 90.1. In the case of large commercial packaged boilers and gas-fired IWHs, ASHRAE considered amending the standards but ultimately chose not to do so. Therefore, the statutory trigger for DOE to adopt ASHRAE's amended standards did not occur with respect to this equipment. Contrary to stakeholder argument, DOE does not have the authority to amend the standards for large commercial packaged boilers and gas-fired IWHs based on ASHRAE's amendments to ASHRAE/IESNA Standard 90.1, which did not amend the standards for large commercial packaged boilers and gas-fired IWHs. The statutory language specifically links ASHRAE's action in amending standards for specific equipment to DOE's action for those same equipment. Accordingly, since ASHRAE did not amend standards for this equipment, DOE has no rulemaking authority to amend standards for this equipment at this time. The Alliance to Save Energy (ASE), the American Council for an Energy-Efficient Economy (ACEEE), the Appliance Standards Awareness Project (ASAP), the Natural Resources Defense Council (NRDC), the Northeast Energy Efficiency Partnerships (NEEP), and the Northwest Power and Conservation Council (NWPCC) submitted a combined comment (collectively referred to as “Joint Comment”) which stated that DOE must review the standards for both large commercial packaged boilers and gas-fired IWHs. (Joint Comment, No. 27 at pp. 3-4) 9 The Joint Comment asserted that ASHRAE's “comprehensive review of all EPCA-related standards which culminated in issuance of ASHRAE 90.1-1999 triggers the required review by DOE of all EPCA standards based on ASHRAE 90.1” Furthermore, the Joint Comment claimed that ASHRAE should not be permitted to shelter specific standards from DOE review by leaving them unchanged. However, the Joint Comment did not provide a rationale for DOE to reject the position taken in the March 2006 NOA and discussed above. Therefore, DOE does not believe the Joint Comment provided any information that would cause DOE to change its interpretation of EPCA as explained the March 2006 NOA and explained above. DOE rejects the Joint Comment's position. 9 A notation in the form “Joint Comment, No. 27 at pp. 3-4” identifies a written comment DOE has received and has included in the docket of this rulemaking. This particular notation refers to a comment
(1)by the Joint Comment,
(2)in document number 27 in the docket of this rulemaking (maintained in the Resource Room of the Building Technologies Program), and
(3)appearing on page 3 and 4 of document number 27. Additionally, the Joint Comment suggested that if ASHRAE revises a standard for a subset of a product class, then DOE is required under EPCA to consider revised standards for the larger product class. For large commercial packaged boilers, the Joint Comment suggested that DOE is obligated to conduct a standards rulemaking instead of leaving the ASHRAE/IESNA Standard 90.1-1989 levels in place. The Joint Comment noted that when ASHRAE developed ASHRAE/IESNA Standard 90.1-1999, it examined efficiency levels for all packaged boilers, it created two product classes—“small boilers” and “large boilers”—and it set a new efficiency level for small boilers while leaving in place the existing level for large boilers. The Joint Comment asserted that ASHRAE's revision of efficiency levels for the newly created product class of “small boilers” triggers a review of the entire category of packaged boilers as defined by EPCA. The Joint Comment further contended that DOE's proposed position that it lacks authority to review the standard level for large boilers means that ASHRAE has unfettered power to create new classes of equipment and to shelter them from DOE review and from higher national standards. This, they contended, would conflict with the intent of EPCA that ASHRAE have the lead in developing higher standards for certain equipment, but that these standards are subject to DOE review. (Joint Comment, No. 27, pp. 3-4) However, based on the language of EPCA (42 U.S.C. 6313 (a)(6)(A)(i)), discussed above, DOE finds no basis for accepting the Joint Comments' contention that ASHRAE's revision of efficiency levels for a product class or subclass triggers a review by DOE of the standards for that entire product category. In sum, DOE does not believe the Joint Comment provides a basis for DOE to conclude that the interpretation presented in the March 2006 NOA (71 FR 12634) was incorrect. Accordingly, since ASHRAE did not amend the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 for large commercial packaged boilers or gas-fired IWHs, DOE concludes it does not have the authority to increase the current standard levels for such equipment. B. Small Commercial Packaged Boilers (Greater Than 300,000 British Thermal Units Per Hour and Less Than or Equal to 2.5 Million British Thermal Units Per Hour) EPCA prescribes a minimum combustion efficiency of 80 percent for gas-fired commercial packaged boilers and 83 percent for oil-fired commercial packaged boilers, regardless of capacity. (42 U.S.C. 6313(a)(4)(C)-(D)) ASHRAE/IESNA Standard 90.1-1999 prescribes for small boilers (greater than 300 thousand Btu/h and less than or equal to 2.5 million Btu/h) thermal efficiency levels of 75 percent for gas-fired equipment and 78 percent for oil-fired equipment. In January 2001, when it adopted as Federal standards certain efficiency levels in ASHRAE/IESNA Standard 90.1-1999, DOE stated that it would evaluate whether standard levels higher than those in ASHRAE/IESNA Standard 90.1-1999 are justified for small commercial packaged boilers. 66 FR at 3336-38, 3349-52. In the March 2006 NOA, DOE tentatively concluded that the ASHRAE/IESNA Standard 90.1-1999 thermal efficiency levels for small commercial packaged boilers would have the effect of lowering minimum combustion efficiency levels required by EPCA by allowing increased energy consumption. 71 FR 12640. Thermal and combustion efficiency are related in that thermal efficiency is a function of both flue losses ( *i.e.* , combustion efficiency) and jacket losses, although the amounts of these two types of losses in a given boiler can be independent of one another. DOE observed that the minimum thermal efficiency levels in ASHRAE/IESNA Standard 90.1-1999 appear to be lower than the average thermal efficiencies of boilers that minimally comply with the EPCA's combustion energy efficiency standards. 71 FR 12640. The practical consequence of setting thermal efficiency standards at levels lower than the thermal efficiencies of existing equipment would allow for the possibility of equipment having lower combustion efficiencies than EPCA permits, meaning that the current minimum required efficiency would be decreased in violation of 42 U.S.C. 6313(a)(6)(B)(ii)). Consequently, DOE stated in the March 2006 NOA that it was inclined to reject the ASHRAE/IESNA Standard 90.1-1999 levels for small commercial packaged boilers and leave the existing EPCA standards in place. 71 FR 12641 DOE did not receive any comments objecting to its rejection of the ASHRAE/IESNA Standard 90.1-1999 levels for small commercial packaged boilers, although the Joint Comment argued that DOE must move forward with a rulemaking for commercial boilers instead of leaving the ASHRAE/IESNA Standard 90.1-1989 levels in place as national standards for small packaged boilers. The Joint Comment noted that these standards are 17 years old, and claimed the March 2006 NOA and TSD demonstrate that more stringent levels for small commercial packaged boilers than those in ASHRAE/IESNA Standard 90.1-1999 are technologically feasible and economically justifiable. The Joint Comment also indicated that the magnitude of the potential energy savings for this equipment provides a more than ample reason for DOE to reexamine this standard. (Joint Comment, No. 27, p. 3) While DOE agrees with the Joint Comment that the ASHRAE/IESNA Standard 90.1 levels for this equipment have been in place since 1989 and that more energy efficient equipment can save energy, the mere potential for energy savings does not justify a DOE rulemaking. As stated above, DOE is rejecting the amended ASHRAE/IESNA Standard 90.1-1999 efficiency levels for small commercial packaged boilers and believes that, consistent with section 342 in EPCA, the proper venue to consider more stringent standards for this equipment is the ASHRAE process itself. Moreover, as noted by the Joint Comment, ACEEE has recommended to ASHRAE that it amend ASHRAE/IESNA Standard 90.1 to adopt new, more stringent standards for this equipment. DOE commends ACEEE's initiative, and encourages ASHRAE to examine whether more stringent standards are warranted for this equipment. Furthermore, DOE considered whether ASHRAE's action to reduce the standard for a class or type of commercial equipment would be a change in the standard that would trigger a DOE standards rulemaking. DOE has concluded that such an action by ASHRAE would not trigger a DOE rulemaking since EPCA is clear that DOE cannot change a standard to reduce its stringency. (42 U.S.C. 6313(a)(6)(B)(ii)) Both Part B for consumer products and Part C for commercial and industrial equipment direct that “[t]he Secretary may not prescribe any amended standard * * * which increases the maximum allowable energy use, or decreases the minimum required energy efficiency * * *” (42 U.S.C. 6295(o)(1) and 42 U.S.C. 6313 (a)(6)(B)(ii), respectively) It is a fundamental principle in EPCA's statutory scheme that DOE cannot amend standards downward; that is, weaken standards, from those that have been published as a final rule. *Natural Resources Defense Council* v. *Abraham,* 355 F.3d 179 (2nd Cir. 2004). Therefore, DOE believes that in order to consider amended efficiency levels for this equipment, DOE must review the amended ASHRAE/IESNA Standard 90.1 to determine if it meets this EPCA requirement and if it does not meet this EPCA requirement, that is, if the efficiency levels in the amended ASHRAE/IESNA Standard 90.1 are less stringent than existing standards, DOE cannot further consider the amended efficiency levels. Accordingly, as stated in the March 2006 NOA, today's final rule will leave the existing EPCA standards in place for small commercial boilers. C. Packaged Terminal Air Conditioners and Packaged Terminal Heat Pumps Section 342(a)(3) of EPCA (42 U.S.C. 6313(a)(3)) and ASHRAE/IESNA Standard 90.1-1999 set forth energy conservation standards for PTACs and PTHPs, which are collectively referred to as PTAC/HPs in today's notice of final rulemaking. The energy conservation standards in ASHRAE/IESNA Standard 90.1-1999 vary based on the cooling capacity of the equipment. EPCA prescribes a single formula for determining the minimum cooling efficiency
(EER)for all PTAC/HPs and a single formula for computing the minimum heating efficiency
(COP)for all PTHPs. In contrast, ASHRAE/IESNA Standard 90.1-1999 further delineates the product categories and consists of two sets of formulas for calculation of the energy conservation standards. One set is for PTAC/HPs with wall sleeves less than 16 inches high and 42 inches wide, and a label indicating the equipment is for replacement use, which ASHRAE/IESNA Standard 90.1-1999 classifies as “replacement” units. The other formula is for all other PTAC/HPs, which ASHRAE/IESNA Standard 90.1-1999 classifies as “new construction” units. The resulting minimum efficiency levels for “replacement” units are slightly higher than the EPCA levels, and the levels for “new construction” units are substantially higher than the EPCA levels. In addition, ASHRAE/IESNA Standard 90.1-1999 have slightly different requirements for the cooling modes of PTACs and PTHPs, whereas EPCA prescribes a single formula for air conditioners and heat pumps. In the March 2006 NOA, DOE recognized that the market for PTACs and PTHPs has substantially changed since publication of the January 2001 final rule. 71 FR 12639. DOE stated in the March 2006 NOA that the market has changed to efficiency levels at or above the levels in ASHRAE/IESNA Standard 90.1-1999 in the absence of Federal standards. DOE examined the January 2003 Air-Conditioning and Refrigeration Institute
(ARI)Directory for PTAC/HPs and found that 52 percent of the listed PTACs are at, or above, the ASHRAE/IESNA Standard 90.1-1999 efficiency level for new construction equipment, and 98 percent of the listed PTACs are at or above the ASHRAE/IESNA Standard 90.1-1999 efficiency level for replacement equipment. *Id.* In addition, DOE found that 72 percent of the listed PTHPs are at or above the ASHRAE/IESNA Standard 90.1-1999 efficiency level for new construction equipment and 99 percent of the listed PTHPs are at or above the ASHRAE/IESNA Standard 90.1-1999 efficiency level for replacement equipment. *Id.* DOE also indicated in the March 2006 NOA that even though the potential energy savings in the revised analysis have been reduced, it believed there is a possibility of clear and convincing evidence that more stringent standard levels for PTACs and PTHPs would result in significant additional energy savings, and would be technologically feasible and economically justified. Therefore, DOE stated it was inclined to seek a more stringent standard level than in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs through the rulemaking process. 71 FR 12639. DOE received several comments on the proposed decision to seek a more stringent standard level than the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs. ARI commented that the technical information regarding DOE's analysis does not support moving forward with a separate rulemaking. ARI believes that 0.103 quads of potential energy savings in the TSD is significantly less than the 0.561 quads originally estimated by DOE for PTAC/PTHP, and that DOE should reject 0.103 quads saved over a 25-year period as being a “significant” amount of energy. Furthermore, ARI stated that manufacturers are voluntarily striving to meet ASHRAE/IESNA Standard 90.1-1999 requirements. However, ARI went on to note that close to 50 percent of the PTACs listed in the ARI directory are still rated below ASHRAE/IESNA Standard 90.1-1999 efficiency levels, which, in ARI's opinion, demonstrates the importance of establishing a national standard. (ARI, No. 26 at p. 2) Even though the potential energy savings in DOE's revised analysis has been reduced, DOE believes there is a reasonable likelihood that more stringent standard levels for PTACs and PTHPs would result in significant energy savings and be technically feasible and economically justified. The estimated savings of 0.103 quads would be comparable to the savings resulting from some other efficiency standards established under EPCA. Furthermore, under section 325(o)(3)(B) of the Act, the Department is prohibited from adopting a standard for a product if that standard would not result in “significant” energy savings. While the term “significant” has never been defined in the Act, the U.S. Court of Appeals, in *Natural Resources Defense Council* v. *Herrington,* 768 F.2d 1355, 1373 (DC Cir. 1985), concluded that Congressional intent in using the word “significant” was to mean “non-trivial.” Therefore, based on the above, DOE does not agree with ARI's assertion and believes that the energy savings that could result from standards for PTACs and PTHPs, while not as large as the savings potential for some other standards, are significant and warrant consideration in a separate rulemaking. In addition, DOE believes there is a possibility that further evaluation of more stringent standard levels for PTACs and PTHPs are warranted, in part, because the market has changed, in the absence of Federal standards, to efficiency levels at or above the levels in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs. 10 71 FR 12639. 10 The price of electricity and forecasts of electricity prices, for example, have changed and more stringent standards than analyzed may prove to be economically justified. DOE has therefore decided to explore more stringent efficiency levels than in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs through a separate rulemaking, which DOE expects to complete in August 2008. (See Department of Energy Regulatory Agenda, RIN: 1904-AB44, 71 FR 73183, December 11, 2006) The Edison Electric Institute
(EEI)commented that DOE should take into account the refrigerant phaseout that starts in 2010 when considering higher standards for PTACs and PTHPs. EEI maintained that when the effects of the new refrigerants combined with the space limitations on this product are considered, they will have a significant impact on the efficiency levels that are available. (EEI, No. 25 at p. 2) EEI commented that it is currently unaware of any PTAC or PTHP equipment that uses R-410A, the refrigerant being used to replace R-22 in other air-conditioning equipment. Therefore, EEI stated its belief that DOE will not have current data on baseline or high efficiency equipment that DOE can use to make a technical or economic judgment for a new efficiency standard. (EEI, No. 25 at p. 2) ARI stated its concern that DOE's analysis focuses exclusively on units operating with R-22, a refrigerant that will be phased out on January 1, 2010. According to the EPACT timetable, any amended energy conservation standards for this equipment would come into effect no sooner than September 2012, well after the phaseout of R-22. Consequently, ARI stated that it does not believe that any of the efficiency data that DOE has collected for its analyses can be used when DOE is evaluating equipment using the new refrigerant, R-410A. (ARI, No. 26 at p. 3) ARI cited several technical challenges that limit the opportunity to improve efficiencies in PTAC/PTHP equipment, including the availability of 60-Hz rotary compressors compatible with R-410A refrigerant. ARI commented that PTAC/PTHP equipment makes exclusive use of rotary compressors and the current production of a 60-Hz rotary compressor compatible with R-410A refrigerant is very limited. Further, according to ARI, the R-410A rotary compressors currently available are significantly less efficient than comparable R-22 rotary compressors. In addition, ARI stated its belief that the rotary compressor manufacturers have not made significant gains in energy efficiency due to design and manufacturing limitations. According to ARI, simulation analyses it conducted on the performance of package terminal air conditioners and heat pumps with R-410A have shown an overall decrease in efficiency (EER and COP) of between 6 to 10 percent (depending on the cooling capacity) compared to R-22 systems. This reduction can be mostly attributed to a reduction in compressor efficiency. DOE has not addressed whether higher standards using R410a are technically feasible. (ARI, No. 26 at p. 3) The Joint Comment maintained that at least the same levels of efficiency could be achieved cost effectively with R-410A and R-134a as with R-22. The Joint Comment, citing a paper released by Trane, stated that there is no theoretical degradation of efficiency with R-134a because the refrigerant has a higher efficiency than R-22 with everything else being equal. However, the Joint Comment recognizes that R-410A has a modestly lower efficiency than R-22, but notes that R-410A allows the compressor and tubes to be smaller than R-22, providing space for increased heat transfer surfaces. According to the Joint Comment, this results in “efficiency gains that can offset some or all of the inherent inefficiencies of R-410A.” 11 (Joint Comment, No. 27 at p. 2) DOE recognizes this is a significant issue for stakeholders and will consider this issue in the PTAC/PTHP rulemaking, which will assess the technological feasibility of a more stringent energy conservation standard for this equipment. 11 Previous refrigerant phaseouts, including the R-12 phaseout for domestic refrigerators, affected DOE standards rulemakings. In those rulemakings DOE attempted to assess the effects of the refrigerant phaseout and, the Joint Comment notes, there were theoretical reasons to believe that there would be a small reduction in efficiency due to the refrigerant change, but when the refrigerant changeover occurred, reductions in efficiency generally were not apparent. As stated above, DOE will address more stringent standards for PTACs and PTHPs in a separate rulemaking. To analyze the technical feasibility of energy efficiency improvements of PTACs and PTHPs, which use R-22, DOE will first evaluate systems that use R-22 as a refrigerant because there is insufficient data to gauge the impacts of alternative refrigerants on system efficiency. DOE will then attempt to collect information on the alternative refrigerants. If DOE is unable to collect sufficient data or information to independently estimate the impacts of the refrigerant phaseout on equipment efficiency, DOE will request that stakeholders provide recommendations as to what assumptions DOE should use to represent the approximate incremental cost of switching to higher efficiency levels for this equipment as a result of using alternative refrigerants, for instance, R-410A. D. Three-Phase Air Conditioners and Heat Pumps Less Than 65,000 British Thermal Units Per Hour Energy conservation standards for split-system three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h are 10.0 SEER for cooling (42 U.S.C. 6313(a)(1)(A)) and 6.8 HSPF for heating. (42 U.S.C. 6313(a)(1)(A) and (D)) Energy conservation standards for single-package three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h are set forth in EPCA at a SEER of 9.7 for cooling (42 U.S.C. 6313(a)(1)(B)) and an HSPF of 6.6 for heating. (42 U.S.C. 6313(a)(1)(B) and (E)) The current energy conservation standards for single-package and split-system three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h are found in Table 1 and Table 2 of section 431.97 of 10 CFR Part 431. These efficiency levels are the same as those in ASHRAE/IESNA Standard 90.1-1989. In the March 2006 NOA, DOE recognized that ASHRAE was considering an Addendum to ASHRAE/IESNA Standard 90.1 (Addendum f) to provide a 13-SEER level for this equipment and stated that DOE would not take action on three-phase commercial air conditioners and heat pumps with capacities less than 65,000 Btu/h until after ASHRAE had completed its process. At that time, DOE stated that it intended to adopt as Federal standards the 13 SEER and 7.7 HSPF levels in ASHRAE/IESNA Standard 90.1-2004 Addendum f. 71 FR 12634, 12637-38, 12643. Subsequent to the publication of the March 2006 NOA, DOE reexamined the amendments in EPACT 2005 to EPCA for commercial package air conditioning and heating equipment and determined that EPACT 2005 had revised the language in 42 U.S.C. 6313(a)(6)(A)(i) to limit DOE's authority to adopt ASHRAE amendments for small, large, and very large commercial package air conditioning and heating equipment until after January 1, 2010. Three-phase commercial ACs and HPs less than 65,000 Btu/h, fall under the definition of small commercial package air conditioning and heating equipment (42 U.S.C. 6311(8)(B)), and therefore are subject to the revised statutory language of EPACT 2005. Prior to the enactment of EPACT 2005, for small and large commercial package air conditioning and heating equipment, any amendment of ASHRAE/IES Standard 90.1, as in effect on October 24, 1992 (the date of enactment of the Energy Policy Act of 1992), would trigger DOE action for adopting amended uniform national standards for this equipment. However, EPACT 2005 changed the October 24, 1992, date for this equipment, so that only an amendment of ASHRAE/IES Standard 90.1 as in effect on January 1, 2010, would trigger DOE action to adopt amended uniform national standards for these products. (42 U.S.C. 6313(a)(6)(A)(i)) This revised statutory requirement, on its face, precludes DOE from adopting the efficiency levels in Addendum f to ASHRAE/IESNA Standard 90.1-2004 for three-phase commercial ACs and HPs less than 65,000 Btu/h at this time. The revised provision states: If ASHRAE/IES Standard 90.1, *as in effect on January 1, 2010* , is amended with respect to any small commercial package air conditioning and heating equipment, large commercial package air conditioning and heating equipment, and very large commercial package air conditioning and heating equipment * * * the Secretary shall establish an amended uniform national standard for that product at the minimum level for each effective date specified in the amended ASHRAE/IES Standard 90.1[.] (42 U.S.C. 6313(a)(6)(A)(i)) (Emphasis added.) Because of this statutory change, it is outside the scope of DOE's authority to adopt these ASHRAE/IESNA Standard 90.1 levels at this time. Three-phase ACs and HPs less than 65,000 Btu/h are within the small commercial packaged air conditioning and heating equipment product categories listed in the clause that contains the January 1, 2010 date. (42 U.S.C. 6313 (a)(6)(A)(i)) Addendum f to ASHRAE/IESNA Standard 90.1-2004 was adopted on April 1, 2006, and in effect prior to January 1, 2010, the date before which DOE has no authority to consider adoption of an ASHRAE amendment affecting this equipment. Subsection (a)(1)(A)-(B) establishes statutory standards for certain small commercial air conditioning and heating equipment that is manufactured after January 1, 1994, but before January 1, 2010. (42 U.S.C. 6313(a)(1)(A)-(B)) These standards are applicable to three-phase air conditioners and heat pumps less than 65,000 Btu/h, as well as SPVU's less than 65,000 Btu/h, discussed in Section II.E below. While EPACT 2005 set standards for certain small, large, and very large commercial package air conditioning and heating equipment manufactured on or after January 1, 2010 (42 U.S.C. 6313 (7)-(9)), Congress did not provide standards for either three-phase air conditioning and heat pumps less than 65,000 Btu/h or SPVUs less than 65,000 Btu/h manufactured on or after January 1, 2010. Congress, however, did give DOE explicit rulemaking authority to consider and adopt more stringent standards for three-phase air conditioning and heat pumps less than 65,000 Btu/h and SPVUs less than 65,000 Btu/h, along with large and very large commercial package air conditioning and heating equipment, if ASHRAE/IESNA Standard 90.1 is not amended during the five-year period beginning on the effective date of a standard. (42 U.S.C. 6313(a)(6)(A)(ii)) The criteria for such a rulemaking are described in 42 U.S.C. 6313(a)(6)(B)(i)-(ii). EPACT 2005 gives DOE authority to initiate a rulemaking “[i]f ASHRAE/IES Standard 90.1 is not amended * * * during the 5-year period beginning on the effective date of a standard,” but Congress does not define the term “effective date of a standard.” Since the effective date of the statutory standards in EPACT 2005 is the date of enactment of the legislation, that is, August 8, 2005, DOE interprets the five-year waiting period to begin on August 8, 2005. Therefore, EPACT 2005 provides ASHRAE from January 2, 2010, until August 8, 2010, to amend ASHRAE/IESNA Standard 90.1 on its own in order to trigger DOE action. After August 8, 2010, DOE may initiate its own rulemaking to set more stringent standards for this equipment. Thus, the text of EPCA clearly prohibits amendments to the standards for small commercial package air conditioning and heating equipment, large commercial package air conditioning and heating equipment, and very large commercial package air conditioning and heating equipment until after January 1, 2010. E. Single-Package Vertical Air Conditioners and Single-Package Vertical Heat Pumps Less Than 65,000 Btu/h On June 2, 2002, ASHRAE published Addendum d to ASHRAE/IESNA Standard 90.1-1999, which incorporated efficiency levels for SPVUs. In the March 2006 NOA DOE stated that it was not able to adopt as Federal requirements the standards and test procedures in Addendum d for SPVUs for the following reasons:
(1)Taking into account the “Exclusions” in the Scope section of ARI Standard 390-2001, the Addendum appeared to prescribe requirements for few if any of the equipment covered by EPCA; neither Addendum d nor any other provision of ASHRAE/IESNA Standard 90.1 defines or describes SPVUs;
(2)assuming Addendum d did prescribe standards and test procedures for SPVUs covered by EPCA, the addendum did not clearly delineate SPVUs according to the statutory scheme set forth in EPCA, and disregarded EPCA's definitions and classifications for commercial air-conditioning equipment; and
(3)to the extent it addressed equipment covered by EPCA, the addendum appeared to contain efficiency levels for some categories of equipment that were lower than the minimum efficiency standards currently required under EPCA. 71 FR 12643. DOE formally rejected Addendum d for reasons summarized above and submitted a formal comment to ASHRAE during the public review period. (Michael J. McCabe letter to Mr. Karim Amrane, Air-Conditioning and Refrigeration Institute, dated July 25, 2003). In response to DOE's comment and in rejection of Addendum d, ASHRAE adopted Addendum b to ASHRAE/IESNA Standard 90.1-2004 (Addendum b). Addendum b redefined both SPVACs and SPVHPs from the definition provided in Addendum d to include encased air-cooled small or large commercial package air-conditioning and heating equipment. In addition, Addendum b created SPVU equipment categories corresponding to the existing cooling capacities in EPCA for commercial package air-conditioning and heating equipment ( *i.e.* , less than 65,000 Btu/h, greater than or equal to 65,000 but less than 135,000 Btu/h, and greater than or equal to 135,000 but less than 240,000 Btu/h). Addendum b also adopted a revised set of efficiency levels for three categories of SPVUs. These amended energy conservation standards in Addendum b use EER and COP descriptors to provide SPVU efficiency levels in a manner consistent with other commercial HVAC equipment, thus eliminating the use of the common residential central AC and HP descriptors of SEER and HSPF. In the March 2006 NOA, DOE considered the potential energy savings for efficiency levels higher than those in Addendum b for SPVU equipment and requested comments on the appropriateness of adopting Addendum b efficiency levels for SPVUs less than 65,000 Btu/h. 71 FR 12634, 12638, 12646. After the publication of the March 2006 NOA, DOE reexamined the amendments in EPACT 2005 to EPCA for commercial package air conditioning and heating equipment. As noted above, DOE determined that EPACT 2005 had revised the language in 42 U.S.C. 6313(a)(6)(A)(I,) to limit DOE's authority to adopt ASHRAE amendments for small, large, and very large commercial package air conditioning and heating equipment until after January 1, 2010. SPVUs less than 65,000 Btu/h fall under the definition of small commercial package air conditioning and heating equipment. (42 U.S.C. 6311(8)(A)). Any SPVU with cooling capacities below 760,000 Btu/h would fit within the product categories listed in the clause that contains the January 1, 2010, date. (42 U.S.C. 6313(a)(6)(A)(i)) Accordingly, for the reasons stated above in Section II.D above, DOE has concluded that it cannot adopt the efficiency levels in Addendum b to ASHRAE/IESNA Standard 90.1-2004 for SPVUs less than 65,000 Btu/h, contrary to its stated intentions in the March 2006 NOA, because it is outside the scope of DOE's authority to adopt the ASHRAE/IESNA Standard 90.1 levels at this time for this equipment. F. Single-Package Vertical Air Conditioners and Single-Package Vertical Heat Pumps Greater Than or Equal to 65,000 Btu/h and Less Than 240,000 Btu/h In the March 2006 NOA, DOE stated that EPCA's energy efficiency standards for commercial packaged air conditioners and heat pumps implicitly cover SPVUs greater than or equal to 65,000 Btu/h and less than 240,000 Btu/h, and, specifically, the standards added to EPCA by EPACT 2005 apply to these larger units. DOE also stated that the rule under consideration in the March 2006 NOA only addressed SPVUs less than 65,000 Btu/h. 71 FR 12634, 12638. DOE received several comments regarding its conclusion that SPVUs with larger capacities are covered under the standards specified by EPACT 2005. ARI disagreed with DOE's position, and argued that Addendum b to ASHRAE/IESNA Standard 90.1-2004 established a new product class for SPVUs in 2002 (three years before enactment of EPACT 2005); that DOE started a rulemaking on SPVUs well before EPACT 2005 was enacted into law according to the semi-annual regulatory agendas published in 2003 and 2004; and that the minimum efficiency standards for small, large, and very large commercial air conditioners established by EPACT 2005 were never intended to apply to SPVUs. (ARI, No. 26 at p. 5) Contrary to ARI's belief, the Joint Comment agreed with DOE's position as summarized in the March 2006 NOA and further argued that the EPACT 2005 standards for commercial unitary air-conditioning and heating equipment cover SPVUs with cooling capacities greater than or equal to 65,000 Btu/h. (Joint Comment, No. 27 at p. 4) DOE is not persuaded by ARI's comment that the conclusion presented in the March 2006 NOA is incorrect and that SPVUs with cooling capacities greater than or equal to 65,000 Btu/h were not meant to be covered by EPACT 2005 levels and, instead, should be required to meet the lower standards found in Addendum b. The definition in EPACT 2005 for large commercial package air conditioning and heating equipment covers commercial packaged air-conditioning and heating equipment with cooling capacities greater than or equal to 65,000 Btu/h and less than 760,000 Btu/h, which would include SPVUs. Although the term SPVU itself is not used in EPCA, all SPVUs, regardless of cooling capacity, come within the definitions of small, large and very large commercial packaged air-conditioning and heating equipment. (42 U.S.C. 6311(8)(A)-(D). There is no language in EPCA to indicate that SPVUs are a separate product and should be subject to different energy conservation standards than in EPACT 2005. EPACT 2005 set energy efficiency standards for small, large and very large commercial package air conditioning and heat equipment, effective for equipment manufactured on or after January 1, 2010. (42 U.S.C. 6313(a)(7)-(9). Since EPACT 2005 set such standards, DOE must follow them. DOE cannot ignore the statutory standards. Only a legislative change could accomplish the result requested by ARI. Bard commented that larger SPVUs (greater than 65,000 Btu/h) cannot be manufactured to meet the statutory standards in EPACT 2005 due to their geometry. (Bard, No. 29 at p. 4) In response, DOE notes that absent a legislative change, the only relief from these statutory standards is in the form of exception relief. The DOE Organization Act (DOEOA) authorizes DOE to grant exception relief. DOEOA section 504(a), 42 U.S.C. 7194(a). The DOEOA permits adjustments to any rule, regulation or order “as may be necessary to prevent special hardship, inequity, or unfair distribution of burdens * * *” *Id.* Manufacturers may apply for exception relief by following DOE's procedural regulations in 10 CFR Part 1003, Subparts B and C. Accordingly, in today's final rule, consistent with the March 2006 NOA, DOE is affirming that the EPACT 2005 efficiency levels, as codified in § 431.97(b) of 10 CFR Part 431, apply to SPVUs greater than or equal to 65,000 Btu/h and less than 760,000 Btu/h. III. Procedural Requirements A. Review Under Executive Order 12866 Today's regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs. B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of General Counsel's Web site: *http://www.gc.doe.gov.* DOE reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. 68 FR 7990. This final rule does not impose any requirement on any entities, including small entities. Therefore, DOE certifies that today's action will not have a significant economic impact on a substantial number of small entities, and no regulatory flexibility analysis has been prepared. C. Review Under the Paperwork Reduction Act of 1995 This rule imposes no new information or recordkeeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 *et seq.* ) D. Review Under the National Environmental Policy Act of 1969 EPCA provides that if ASHRAE/IESNA Standard 90.1 is amended, the Secretary must adopt the amended efficiency requirements in ASHRAE/IESNA Standard 90.1 for covered equipment, unless the Secretary determines that certain conditions for requiring more stringent standards are met, or the amendment would increase the maximum allowable energy use or decrease the minimum required energy efficiency of a covered product or would result in the unavailability of a product type in the United States. (42 U.S.C. 6313(a)(6)(A) and (B)) For the reasons discussed in II. above, DOE has concluded that it lacks authority to pursue higher standards for gas-fired instantaneous water heaters and large commercial packaged boilers. For small commercial packaged boilers with capacities greater than 300,000 Btu/h and less than or equal to 2.5 million British thermal units per hour, DOE is declining to adopt revised efficiency standards contained in the ASHRAE/IESNA Standard 90.1-1999 because they are not as stringent as those prescribed by EPCA. In addition, DOE has decided to conduct a separate rulemaking to consider whether standards at higher levels than those in the ASHRAE/IESNA Standard 90.1-1999 are warranted for packaged terminal air conditioners and packaged terminal heat pumps. Finally, DOE has concluded it does not have the authority to adopt, as uniform national standards, efficiency standards contained in Addenda f and Addenda b, respectively, to ASHRAE/IESNA Standard 90.1-2004 for three-phase commercial air conditioners and heat pumps with cooling capacities less than 65,000 British thermal units per hour, and single-package vertical air conditioners and single-package vertical heat pumps with cooling capacities less than 65,000 Btu/h. Accordingly, to the extent that DOE lacks discretion to adopt the amended ASHRAE/IESNA Standard 90.1, NEPA does not apply. Moreover, because the final rule prescribing no new energy efficiency standards and would not change the environmental effect of compliance with 10 CFR Part 431, the Department has determined that this rule is, in any event, covered under the Categorical Exclusion found at paragraph A5 of Appendix A, 10 CFR Part 1021, which applies to rulemaking interpreting an existing rule or regulation with no change in environmental effect. Therefore, neither an environmental assessment nor an environmental impact statement is required. E. Review Under Executive Order 13132 Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in developing such regulations. 65 FR 13735. DOE is prescribing no new standards and imposing no other requirements in this rulemaking. Therefore, this final rule does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. F. Review Under Executive Order 12988 Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996) imposes on Federal agencies the general duty to adhere to the following requirements:
(1)Eliminate drafting errors and ambiguity;
(2)write regulations to minimize litigation; and
(3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect, if any;
(2)clearly specifies any effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct while promoting simplification and burden reduction;
(4)specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. As a result of its analysis of the evidence and the law, DOE has decided not to prescribe amended standards for the equipment covered in this rulemaking. Because it is not imposing any requirement on any person or entity, Executive Order 12988 does not apply to this rulemaking. G. Review Under the Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. For a proposed regulatory action likely to result in a rule that may cause expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA (62 FR 12820) (also available at *http://www.gc.doe.gov* ). This final rule prescribes no standards or other requirements, so these requirements under the UMRA do not apply. H. Review Under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. I. Review Under Executive Order 12630 DOE has determined under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988) that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution. J. Review Under the Treasury and General Government Appropriations Act, 2001 Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) requires agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by the Office of Management and Budget (OMB). OMB's guidelines were published at 67 FR 8452 (February 22, 2002); DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. K. Review Under Executive Order 13211 Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that:
(1)Is a significant regulatory action under Executive Order 12866, or any successor order; and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
(3)is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the proposal were implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This final rule is not a significant regulatory action under Executive Order 12866 or any successor order, and because DOE is imposing no requirements in this final rule, it will not have a significant adverse effect on supply, distribution, or use of energy, and has not been designated by the Administrator of OIRA as a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. L. Congressional Notification As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule,” as defined by 5 U.S.C. 804(2). IV. Approval of the Office of the Secretary The Secretary of Energy has approved publication of today's final rule. Issued in Washington, DC, on February 28, 2007. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. [FR Doc. E7-3819 Filed 3-6-07; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD; Amendment 39-14971; AD 2007-05-10] RIN 2120-AA64 Airworthiness Directives; Cessna Aircraft Company Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: The FAA adopts a new airworthiness directive
(AD)for certain Cessna Aircraft Company (Cessna) Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes. This AD requires you to install Modification Kit MK172-25-10C or a steel lock rod/bar on both crew seat back cylinder lock assemblies. If a steel lock rod/bar has already been installed on the crew seat back cylinder lock assembly, no further action is required. If you have already installed Modification Kit MK172-25-10A or MK172-25-10B, this AD requires you to do an installation inspection and correct any discrepancies found. This AD results from reports of the crew seat back cylinder lock assembly failing at the aft end and other cylinder lock assemblies found cracked. We are issuing this AD to prevent the crew seat back cylinder lock assembly from bending, cracking, or failing. This failure could cause uncontrolled movement of the seat back, resulting in possible backward collapse during flight. Backward collapse of either crew seat back could result in an abrupt pitch-up if the affected crew member continues to hold on to the control yoke during this failure and could cause difficulty in exiting the airplane from an aft passenger seat after landing. DATES: This AD becomes effective on April 11, 2007. As of April 11, 2007, the Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation. ADDRESSES: To get the service information identified in this AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, KS 67277; telephone:
(316)517-5800; fax:
(316)942-9006. To view the AD docket, go to the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001 or on the Internet at *http://dms.dot.gov* . The docket number is FAA-2006-25261; Directorate Identifier 2006-CE-38-AD. FOR FURTHER INFORMATION CONTACT: Gary Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone:
(316)946-4123; facsimile:
(316)946-4107. SUPPLEMENTARY INFORMATION: Discussion On August 3, 2006, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Cessna Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking
(NPRM)on August 9, 2006 (71 FR 45454). The NPRM proposed to require you to install a modification kit on both crew seat back cylinder lock assemblies, which replaces the cylinder lock with a new model cylinder lock, or install a steel lock rod/bar on both crew seat back cylinder lock assemblies. The NPRM also proposed to require you to do an installation inspection on previously installed modification kits and correct any discrepancies found. Comments We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment: Comment Issue No. 1: Need AD To Resolve Crew Seat Problem Michael A. Zaite states that having flown a number of Cessna airplanes, he has experienced this problem first hand and supports the AD. The Cessna Pilots Association
(CPA)also supports the AD. The CPA states one of two methods can permanently resolve the issue. Installing a solid bar thereby preventing any further aft movement of the seat back or installing Modification Kit MK172-25-10C are both acceptable solutions for the collapsing seat back issue. We agree with Mr. Zaite and the CPA. Both of these methods are allowable in the AD. We are not changing the final rule AD action. Comment Issue No. 2: Publish the Manufacturer Service Information Jack Buster with the Modification and Replacement Parts Association (MARPA) provides comments on the AD process pertaining to how the FAA addresses publishing manufacturer service information as part of a proposed AD action. The commenter states that the proposed rule attempts to require compliance with a public law by reference to a private writing (as referenced in paragraph
(e)of the proposed AD). The commenter would like the FAA to incorporate by reference
(IBR)the Cessna service bulletins. We agree with Mr. Buster. However, we do not IBR any document in a proposed AD action, instead we IBR the document in the final rule. Since we are issuing the proposal as a final rule AD action, Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006, Cessna Single Engine Service Bulletin SB04-25-02, Revision 1, dated October 17, 2005, and Cessna Single Engine Service Bulletin SB04-25-02, Revision 2, dated June 5, 2006, are incorporated by reference. Comment Issue No. 3: Availability of IBR Documents in the Docket Management System
(DMS)Mr. Buster requests IBR documents be made available to the public by publication in the **Federal Register** or in the DMS. We are currently reviewing issues surrounding the posting of service bulletins in the Department of Transportation's DMS as part of the AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. Comment Issue No. 4: Could the Seats Be Installed on Other Cessna Model Airplanes The International Cessna 170 Association states a concern that the affected seats may be installed on other airplanes. Many operators of Cessna airplanes find seats of later models desirable due to features subsequently added by manufacturers, i.e., recline/height-adjustment/mechanisms. The commenter also states that these seats usually have similar, if not identical, attachment to floor tracks and airframes; therefore, the possibility exists for installing the seats from the same manufacturer on other models of airplanes. These models may include Cessna 170, 170A, and 170B airplanes. The commenter requests the applicability of the AD be specific to the crew seat model/part-number and not the airplane models. Although it may be possible to install these seats on other Cessna airplane models, we are not aware of any such installations. In addition, the modification to the seat rails and other airplane configuration changes that would be required to install these seats would make any installation unlikely. We will continue to monitor this situation and, if we receive information from owner/operators indicating these seats are being installed on other airplanes, we will consider additional rulemaking on this subject. We are not changing the final rule AD action based on this comment. Comment Issue No. 5: Incorporate Revised Service Information Cessna Aircraft Company states that reports of five additional seat back failures have been received since issuing Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006. It was also determined that incorporating Modification Kit MK172-25-10B on Models 206H and T206H airplanes equipped with an optional Keith Products, L.P. air conditioner system (installed in accordance with Supplemental Type Certificate SA10144SC) was impossible. Cessna has issued Revision 4 to Service Bulletin SB04-25-01, dated December 26, 2006, which incorporates Modification Kit MK172-25-10C to address this issue. We are changing the final rule AD action to incorporate Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006, which references Modification Kit MK172-25-10C. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD will affect 4,039 airplanes in the U.S. registry. We provide below total fleet costs for both the modification and the steel lock rod/bar installation; however, only one of these actions will be required. We estimate the following costs to do the installation of the modification kit: Labor cost Parts cost for both seats Total cost per airplane for both seats Total cost on U.S. operators 3.5 work-hours × $80 per hour = $280 for each modification kit $590 for each modification kit. One modification kit required for each airplane. Total parts cost for both seats is $590 $870 $3,513,930 We estimate the following costs to do the fabrication and installation of a steel lock rod/bar: Labor cost Parts cost for both seats Total cost per airplane for both seats Total cost on U.S. operators 1.5 work-hours × $80 per hour = $120 for each crew seat. Total labor cost for both seats is $240 Not applicable $240 $969,360 We estimate the following costs to do the installation inspection on airplanes that have Modification Kit MK172-25-10A or MK172-25-10B installed: Labor cost Parts cost for both seats Total cost per airplane for both seats 1 work-hour × $80 per hour = $80 for both crew seats Not applicable $80 We have no method of determining the number of airplanes that may have Modification Kit MK172-25-10A or MK172-25-10B previously installed. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by adding a new AD to read as follows: **2007-05-10 Cessna Aircraft Company:** Amendment 39-14971; Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD. Effective Date
(a)This AD becomes effective on April 11, 2007. Affected ADs
(b)None. Applicability
(c)This AD affects the following airplane models and serial numbers that are certificated in any category: Model Serial Nos. 172R 17280001 through 17281262. 172S 172S8001 through 172S9994. 182S 18280001 through 18280944. 182T 18280945 through 18281701. T182T T18208001 through T18208453. 206H 20608001 through 20608250. T206H T20608001 through T20608570. Unsafe Condition
(d)This AD results from reports of the crew seat back cylinder lock assembly failing at the aft end area and other cylinder lock assemblies found cracked. The actions specified in this AD are intended to prevent the crew seat cylinder lock assembly from bending, cracking, or failing. This failure could cause uncontrolled movement of the seat back, resulting in possible backward collapse during flight. Backward collapse of either crew seat back could result in an abrupt pitch-up if the affected crew member continues to hold on to the control yoke during this failure and could cause difficulty in exiting the airplane from an aft passenger seat after landing. Compliance
(e)To address this problem, you must do the following, unless already done:
(1)*Airplanes that do not have Modification Kit MK172-25-10A or Modification Kit MK172-25-10B installed:* Actions Compliance Procedures For each crew seat (pilot and copilot), install Modification Kit MK172-25-10C or fabricate and install a steel lock rod/bar *For airplanes that have over 1,000 hours time-in-service
(TIS)on the effective date of this AD:* do the action within the next 4 months after April 11, 2007 (the effective date of this AD) *For airplanes that have from 501 to 1,000 hours TIS on the effective date of this AD:* do the action within the next 8 months after April 11, 2007 (the effective date of this AD) *For airplanes that have from 0 to 500 hours TIS on the effective date of this AD:* do the action within the next 12 months after April 11, 2007 (the effective date of this AD) Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006, for installing Modification Kit MK172-25-10C. Follow Cessna Single Engine Service Bulletin SB04-25-02, Revision 1, dated October 17, 2005, or Revision 2, dated June 5, 2006, for fabricating and installing a steel lock rod/bar.
(2)*Airplanes that have Modification Kit MK172-25-10A or Modification Kit MK172-25-10B installed:* Action Compliance Procedures
(i)For each crew seat (pilot and copilot), do an installation inspection Within the next 30 days after April 11, 2007 (the effective date of this AD) Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006.
(ii)If you do not find any discrepancies during the inspection required in paragraph (e)(2)(i) of this AD, make a log book entry showing compliance with this AD and no further action is required Before further flight after the inspection required in paragraph (e)(2)(i) of this AD Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006.
(iii)If you find discrepancies during the inspection required in paragraph (e)(2)(i) of this AD, make all necessary corrective actions Before further flight after the inspection required in paragraph (e)(2)(i) of this AD Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006. Note: Although not required for the airplanes affected by this AD, you may replace the steel lock rod/bar with Modification Kit MK172-25-10C. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Wichita Aircraft Certification Office, FAA, ATTN: Gary Park, Aerospace Engineer, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone:
(316)946-4123; facsimile:
(316)946-4107, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Material Incorporated by Reference
(g)You must use Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006; and Cessna Single Engine Service Bulletin SB04-25-02, Revision 1, dated October 17, 2005, or Revision 2, dated June 5, 2006, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, KS 67277; telephone:
(316)517-5800; fax:
(316)942-9006.
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on February 26, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-3834 Filed 3-6-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26693 Directorate Identifier 2006-CE-90-AD; Amendment 39-14970; AD 2007-05-09] RIN 2120-AA64 Airworthiness Directives; REIMS AVIATION S.A. Model F406 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: This AD is issued following a nose landing gear collapse during takeoff roll. Several expertises proved that the locking device of the Nose Landing Gear
(NLG)actuator rod was on several F406 airplanes not conforming with the installation approved by the manufacturer. There were two different landing gear actuator designs installed on the Model F406 airplanes (Teijin Seiki and Cessna). The actuators used different locking devices to retain the spherical rod-end to the actuator rod. Use of the incorrect locking device could allow the spherical rod-end to disconnect from the actuator rod. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective April 11, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of April 11, 2007. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC. FOR FURTHER INFORMATION CONTACT: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4144; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on January 8, 2007 (72 FR 672). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: This AD is issued following a nose landing gear collapse during takeoff roll. Several expertises proved that the locking device of the Nose Landing Gear
(NLG)actuator rod was on several F406 airplanes not conforming with the installation approved by the manufacturer. The MCAI requires: As Main Landing Gear
(MLG)actuator rod locking devices are similar to the NLG ones, then MLG actuator locking devices shall also be inspected. This AD requires inspection of the NLG and MLG locking devices and as requested their replacement to comply with the manufacturer's approved design. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD, and take precedence over the actions copied from the MCAI. Costs of Compliance We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it will take about 5 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $20 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $2,940, or $420 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2007-05-09 REIMS AVIATION S.A.:** Amendment 39-14970; Docket No. FAA-2006-26693; Directorate Identifier 2006-CE-90-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective April 11, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Model F406 airplanes, all serial numbers, certificated in any category. Reason
(d)The mandatory continuing airworthiness information
(MCAI)states: This AD is issued following a nose landing gear collapse during takeoff roll. Several expertises proved that the locking device of the Nose Landing Gear
(NLG)actuator rod was on several F406 airplanes not conforming with the installation approved by the manufacturer. There were two different landing gear actuator designs installed on the Model F406 airplanes (Teijin Seiki and Cessna). The actuators used different locking devices to retain the spherical rod-end to the actuator rod. Use of the incorrect locking device could allow the spherical rod-end to disconnect from the actuator rod, and consequently the landing gear could collapse. Actions and Compliance
(e)Unless already done, do the following actions:
(1)Within 3 months or 100 hours time-in-service
(TIS)after April 11, 2007 (the effective date of this AD), whichever occurs first:
(i)*For airplanes with Teijin Seiki Nose Landing Gear
(NLG)P/N 9910139-9:* inspect the NLG for conformity with the key lock system installation description in Figure 1 of the REIMS AVIATION INDUSTRIES Service Bulletin No. F406-56, dated April 12, 2005;
(ii)*For airplanes with Cessna NLG P/N 9910139-9:* inspect the NLG for conformity with the key lock system installation description in Figure 2 of the REIMS AVIATION INDUSTRIES Service Bulletin No. F406-56, dated April 12, 2005;
(iii)*For airplanes with Teijin Seiki Main Landing Gear
(MLG)P/N 9910136-8:* inspect the MLG for conformity with the key lock system installation description in Figure 3 of the REIMS AVIATION INDUSTRIES Service Bulletin No. F406-56, dated April 12, 2005; and
(iv)*For airplanes with Cessna MLG P/N 9910136-8:* inspect the MLG for conformity with the key lock system installation description in Figure 4 of the REIMS AVIATION INDUSTRIES Service Bulletin No. F406-56, dated April 12, 2005.
(2)Before further flight after any inspection from (e)(1) of this AD where the key lock system does not conform to the appropriate installation description, install a key lock system that conforms to the appropriate installation description. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(f)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, ATTN: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4144; fax:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et. seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(g)Refer to MCAI Direction générale de l'aviation civile AD No. F-2005-065, dated April 27, 2005, for related information. Material Incorporated by Reference
(h)You must use REIMS AVIATION INDUSTRIES Service Bulletin No. F406-56, dated April 12, 2005, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact REIMS AVIATION INDUSTRIES, Aérodrome de Reims Prunay, 51360 Prunay, France, A l'attention du Support Client; telephone: 03.26.48.46.53; fax: 03.26.49.18.57.
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Kansas City, Missouri, on February 23, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-3835 Filed 3-6-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27308; Directorate Identifier 2007-NE-06-AD; Amendment 39-14977; AD 2007-05-16] RIN 2120-AA64 Airworthiness Directives; General Electric Aircraft Engines
(GE)CF34-3A1/-3B/-3B1 Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: This action supersedes emergency airworthiness directive
(AD)2007-04-51 that was sent previously to all known U.S. owners and operators of GE CF34-3A1/-3B/-3B1 turbofan engines. That action required a onetime visual and tactile inspection of certain areas of certain serial number
(SN)fan disks for an arc-out defect, within 20 engine flight hours after the effective date of that AD. This AD supersedes AD 2007-04-51 and adds eight SNs to the list of suspect fan disks. This AD results from GE discovering eight additional SNs of fan disks suspected of having an arc-out defect, and from the original report that a GE CF34-3B1 turbofan engine experienced an uncontained fan disk failure during flight operation. We are issuing this AD to prevent an uncontained fan disk failure and airplane damage. DATES: This AD becomes effective March 12, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of March 12, 2007. We must receive any comments on this AD by May 7, 2007. ADDRESSES: Use one of the following addresses to comment on this AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact General Electric Company via Lockheed Martin Technology Services, 10525 Chester Road, Suite C, Cincinnati, Ohio 45215, telephone
(513)672-8400, fax
(513)672-8422 for the service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803, e-mail: *tara.chaidez@faa.gov;* telephone
(781)238-7773; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: On February 16, 2007, the FAA issued emergency AD 2007-04-51, that applies to GE CF34-3A1/-3B/-3B1 turbofan engines. That AD requires a onetime visual and tactile inspection of certain areas of certain SN fan disks, within 20 engine flight hours after the effective date of that AD. That AD resulted from a report that a GE CF34-3B1 turbofan engine experienced an uncontained fan disk failure during flight operation. After landing the airplane, an inspection of the GE CF34-3B1 engine showed the front section of the engine failed, resulting in the fan, forward cowlings, and fan reverser departing from the engine. The airplane sustained minor fuselage damage. A subsequent inspection of the recovered segments of the fan disk found an electrical arc-out defect at the fracture origin site. The fan disk was marked using the electro-chemical etch marking
(ECM)procedure during engine assembly. If the ECM procedure is performed incorrectly, an arc-out defect can occur. This arc-out defect, caused during part marking, resulted in the uncontained failure. This condition, if not corrected, could result in an uncontained fan disk failure and airplane damage. Since emergency AD 2007-04-51 was issued, GE discovered eight additional SNs of fan disks suspected of having an arc-out defect. Relevant Service Information We have reviewed and approved the technical contents of GE Alert Service Bulletin
(ASB)No. CF34-BJ S/B 72-A0213, dated February 15, 2007, and Revision 1, dated February 27, 2007, and GE ASB No. CF34-AL S/B 72-A0232, dated February 15, 2007, and Revision 1, dated February 27, 2007, that describe procedures for visual and tactile inspection of certain areas of certain SN fan disks suspected of having an arc-out defect. FAA's Determination and Requirements of This AD Since the unsafe condition described is likely to exist or develop on other engines of the same type design, we are issuing this AD to supersede emergency AD 2007-04-51 and to prevent an uncontained fan disk failure and airplane damage. This AD requires a onetime visual and tactile inspection of certain areas of certain SN fan disks for an arc-out defect, within 20 engine flight hours after the effective date of this AD. You must use the service information described previously to perform the actions required by this AD. FAA's Determination of the Effective Date Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists to make the AD effective immediately to all known U.S. owners and operators of GE CF34-3A1/-3B/-3B1 turbofan engines. We are publishing the AD in the **Federal Register** as an amendment to Section 39.13 of part 39 of the Code of Federal Regulations (14 CFR part 39) to make it effective to all persons. Interim Action These actions are interim actions and we may take further rulemaking actions in the future. Comments Invited This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2007-27308; Directorate Identifier 2007-NE-06-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov.* Examining the AD Docket You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **2007-05-16 General Electric Aircraft Engines:** Amendment 39-14977. Docket No. FAA-2007-27308; Directorate Identifier 2007-NE-06-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective March 12, 2007. Affected ADs
(b)This AD supersedes emergency AD 2007-04-51. Applicability
(c)This AD applies to General Electric Aircraft Engines
(GE)CF34-3A1/-3B/-3B1 turbofan engines that have fan disks with serial numbers
(SNs)listed in Table 1 of this AD. Table 1.—Fan Disk SNs and Last Known Associated Engine Serial Number
(ESN)SN (Fan Disk) ESN (current) GEE148JH 872787 GEE01629 807168 GEE01888 807188 GEE147MF 807620 GEE147NA 807622 GEE147V5 807624 GEE147VC 807625 GEE148JG 807633 GEE145LL 872526 GEE145NK 872545 GEE1466F 872563 GEE1466L 872568 GEE146H3 872599 GEE146KD 872604 GEE146N7 872634 GEE147N7 872705 GEE147N8 872709 GEE14818 872727 GEE14815 872730 GEE1480J 872731 GEE1485J 872745 GEE1480F 872750 GEE14885 872763 GEE148EJ 872780 GEE148FT 872785 GEE148ER 872790 GEE148PN 872804 GEE148RN 872811 GEE148TW 872817 GEE03675 SPARE GEE148R0 SPARE GEE148VT 872830 GEE148WC 872837 GEE1F9G6 872841 GEE1F9G8 872846 GEE1F9GA 872849 GEE1F9WN 872857 GEE1FA22 872866 GEE1FA6H 872886
(d)For reference, affected regional jet fan disk part numbers (P/Ns) are 5922T01G04, 5922T01G05, 6078T57G01, 6078T57G02, 6078T57G03, 6078T57G04, 6078T57G05, and 6078T57G06.
(e)For reference, affected business jet fan disk P/Ns are 5921T18G01, 5921T18G09, 5921T18G10, 5921T54G01, 5922T01G02, 5922T01G04, 5922T01G05, 6020T62G04, 6020T62G05, 6078T00G01, 6078T57G01, 6078T57G02, 6078T57G03, 6078T57G04, 6078T57G05, and 6078T57G06.
(f)These engines are installed on, but not limited to, Bombardier, Inc. CL-600-2B16 (CL-601-3R Variant), CL-600-2B16 (CL-604 Variant), and CL-600-2B19 (Regional Jet Series 100 and 440) model airplanes. Unsafe Condition
(g)This AD results from GE discovering eight additional SNs of fan disks suspected of having an arc-out defect, and from the original report that a GE CF34-3B1 turbofan engine experienced an uncontained fan disk failure during flight operation. We are issuing this AD to prevent an uncontained fan disk failure and airplane damage. Compliance
(h)You are responsible for having the actions required by this AD performed within 20 engine flight hours after the effective date of this AD, unless the actions have already been done. Inspection of the Fan Disk
(i)Perform a onetime visual and tactile inspection of the bore area on the 39 fan disks listed in Table 1 of this AD, that have not had a shop-level inspection.
(j)For regional jet engine models CF34-3A1/-3B1, use paragraphs 3.A through 3.B.(2)(h) of the Accomplishment Instructions of GE Alert Service Bulletin
(ASB)No. CF34-AL S/B 72-A0232, Revision 1, dated February 27, 2007, to do the inspections.
(k)For business jet engine models CF34-3A1/-3B, use paragraphs 3.A through 3.B.(2)(h) of the Accomplishment Instructions of GE ASB No. CF34-BJ S/B 72-A0213, Revision 1, dated February 27, 2007, to do the inspections. Previous Inspection Credit
(l)Previous inspection credit is allowed:
(1)For regional jet engine models CF34-3A1/-3B1, inspected using paragraphs 3.A through 3.B.(2)(g) of the Accomplishment Instructions of GE ASB No. CF34-AL S/B 72-A0232, dated February 15, 2007, for the fan disk SNs listed in emergency AD 2007-04-51.
(2)For business jet engine models CF34-3A1/-3B, inspected using paragraphs 3.A through 3.B.(2)(g) of the Accomplishment Instructions of GE ASB No. CF34-BJ S/B 72-A0213, dated February 15, 2007, for the fan disk SNs listed in emergency AD 2007-04-51.
(m)Fan disks listed in Table 1 of this AD that have already had a full visual inspection, eddy current inspection, and fluorescent penetrant inspection using GE CF34-3
(BJ)Heavy Maintenance Manual SEI-782, Section 72-21-00, or using GE CF34-3
(RJ)Engine Manual SEI-756, Section 72-21-00, are considered in compliance with this AD. Alternative Methods of Compliance
(n)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(o)AD 2006-05-04, dated March 3, 2006, also addresses the subject of this AD. GE ASB No. CF34-BJ S/B 72-A0088, dated August 21, 2000, and GE ASB No. CF34-AL S/B 72-A0103, dated August 4, 2000, pertain to the subject of this AD.
(p)For further information, contact: Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803, e-mail: *tara.chaidez@faa.gov* ; telephone
(781)238-7773; fax
(781)238-7199. Material Incorporated by Reference
(q)You must use the service information specified in Table 2 of this AD to perform the actions required by this AD. The Director of the Federal Register approved the incorporation by reference of the documents listed in Table 2 of this AD in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You can get a copy from General Electric Company via Lockheed Martin Technology Services, 10525 Chester Road, Suite C, Cincinnati, Ohio 45215, telephone
(513)672-8400, fax
(513)672-8422. You may review copies at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: * http:// www.archives.gov/federal-register/cfr/ibr-locations.html * . Table 2.—Incorporation by Reference GE Aircraft Engines Alert Service Bulletin No. Page Revision Date CF34-BJ S/B 72-A0213 All Original February 15, 2007. Total Pages: 12 CF34-BJ S/B 72-A0213 All 1 February 27, 2007. Total Pages: 13 CF34-AL S/B 72-A0232 All Original February 15, 2007. Total Pages: 12 CF34-AL S/B 72-A0232 All 1 February 27, 2007. Total Pages: 13 Issued in Burlington, Massachusetts, on February 28, 2007. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-3833 Filed 3-6-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26707; Directorate Identifier 2006-NM-157-AD; Amendment 39-14973; AD 2007-05-12] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330 Airplanes and Model A340-200 and -300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive
(AD)for certain Airbus Model A330 airplanes and Model A340-200 and -300 series airplanes. This AD requires inspecting to determine the part number of certain S4- and MZ-type spoiler servo controls (SSCs). For certain other airplanes, this AD requires inspecting to determine the part number of all SSCs. This AD also requires replacing any affected SSC with a new SSC. This AD results from a new load duty cycle defined by the manufacturer. Additional fatigue tests and calculations done on this basis indicated that the spoiler valve manifold of the S4-type SSCs, and, on certain airplanes, the maintenance cover of the MZ-type SSCs, may crack during its service life due to pressure impulse fatigue. We are issuing this AD to prevent fatigue cracking of certain SSCs, which could result in hydraulic leakage and consequent loss of SSC function and loss of the associated hydraulic system. These conditions could affect all three hydraulic systems, which could result in reduced controllability of the airplane. DATES: This AD becomes effective April 11, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of April 11, 2007. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, Room PL-401, Washington, DC. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2797; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the airworthiness directive
(AD)docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section. Discussion The FAA issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A330 airplanes and Model A340-200 and -300 series airplanes. That NPRM was published in the **Federal Register** on December 28, 2006 (71 FR 78102). That NPRM proposed to require inspecting to determine the part number of certain S4- and MZ-type spoiler servo-controls (SSCs). For certain other airplanes, that NPRM proposed to require inspecting to determine the part number of all SSCs. That NPRM also proposed to require replacing any affected SSC with a new SSC. Comments We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Costs of Compliance This AD affects about 27 airplanes of U.S. registry. It takes about 1 work hour per airplane to accomplish the inspection to determine the part number, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the inspection required by this AD for U.S. operators is $2,160, or $80 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-05-12 Airbus:** Amendment 39-14973. Docket No. FAA-2006-26707; Directorate Identifier 2006-NM-157-AD. Effective Date
(a)This AD becomes effective April 11, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Airbus Model A330-201, -202, -203, -223, -243, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes; and Model A340-211, -212, -213, -311, -312, and -313 airplanes; certificated in any category; excluding airplanes on which AIRBUS Modification 44670 has been embodied in production. Unsafe Condition
(d)This AD results from a new load duty cycle defined by the manufacturer. Additional fatigue tests and calculations done on this basis indicated that the spoiler valve manifold of the S4-type spoiler servo controls (SSCs), and, on certain airplanes, the maintenance cover of the MZ-SSCs, may crack during its service life due to pressure impulse fatigue. We are issuing this AD to prevent fatigue cracking of certain SSCs, which could result in hydraulic leakage and consequent loss of SSC function and loss of the associated hydraulic system. These conditions could affect all three hydraulic systems, which could result in reduced controllability of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Determine the Part Number of the SSCs/Replace If Necessary
(f)For Model A330-200 airplanes: Within 70 days after the effective date of this AD, inspect to determine the part number of all SSCs in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3113, Revision 04, dated June 13, 2006.
(1)If the part number is not identified in Table 1 of paragraph 3.B.(1)(a) or 3.B.(2)(a) of the Accomplishment Instructions of the service bulletin: No further action is required by this paragraph.
(2)If the part number is identified in Table 1 of paragraph 3.B.(1)(a) or 3.B.(2)(a) of the Accomplishment Instructions of the service bulletin: Do the applicable actions specified in paragraphs (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this AD in accordance with the Accomplishment Instructions of the service bulletin.
(i)If any SSC is installed in positions 2 through 6: Before the accumulation of 6,000 total flight cycles on the SSC since new, replace the SSC with a 138X-type SSC.
(ii)If any SSC is installed in position 1: Before the accumulation of 11,000 total flight cycles on the SSC since new, replace the SSC with a 138X-type SSC.
(iii)If the total flight cycles on any SSC exceed the total flight cycles specified in paragraph (f)(2)(i) or (f)(2)(ii) of this AD, as applicable, or if the total flight cycles are unknown: Before further flight, replace the SSC with a 138X-type SSC.
(3)If any SSC has a missing identification plate, before further flight, identify the part number of the cylinder housing of the SSC by using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency
(EASA)(or its delegated agent). Before further flight after determining the part number, accomplish the requirements specified in paragraph (f)(1) or (f)(2) of this AD, as applicable.
(g)For Model A330-300 airplanes and Model A340-200 and -300 series airplanes: Within 70 days after the effective date of this AD, inspect to determine the part number of all SSCs in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3113, Revision 04, dated June 13, 2006; or A340-27-4139, Revision 01, dated June 12, 2006; as applicable.
(1)If the part number is not identified in Table 1 of paragraph 3.B.(1)(a) or 3.B.(2)(a) of the Accomplishment Instructions of the applicable service bulletin: No further action is required by this paragraph.
(2)If the part number is identified in Table 1 of paragraph 3.B.(1)(a) or 3.B.(2)(a) of the Accomplishment Instructions of the applicable service bulletin: Do the applicable actions specified in paragraphs (g)(2)(i), (g)(2)(ii), and (g)(2)(iii) of this AD in accordance with the Accomplishment Instructions of the applicable service bulletin.
(i)If any SSC is installed in positions 2 through 6: Before the accumulation of 14,000 total flight cycles on the SSC since new, replace the SSC with a 138X-type SSC.
(ii)If any SSC is installed in position 1: Before the accumulation of 15,000 total flight cycles on the SSC since new, replace the SSC with a 138X-type SSC.
(iii)If the total flight cycles on any SSC exceed the total flight cycles specified in paragraph (g)(2)(i) or (g)(2)(ii) of this AD, as applicable, or if the total flight cycles are unknown: Before further flight, replace the SSC with a 138X-type SSC.
(3)If any SSC has a missing identification plate, before further flight, identify the part number of the SSC cylinder housing by using a method approved by either the Manager, International Branch, ANM-116; or the EASA (or its delegated agent). Before further flight after determining the part number, accomplish the requirements specified in paragraph (g)(1) or (g)(2) of this AD, as applicable. Note 1: Airbus Service Bulletins A330-27-3113, Revision 04, dated June 13, 2006; and A340-27-4139, Revision 01, dated June 12, 2006; refer to LIEBHERR Service Information Letters SIL 142, Revision 2, dated September 28, 2005; and SIL 190, dated September 27, 2005; respectively, as additional sources of service information for accomplishing the actions required by paragraphs
(f)and
(g)of this AD. Action Not Required
(h)Airbus Service Bulletins A330-27-3113, Revision 04, dated June 13, 2006; and A340-27-4139, Revision 01, dated June 12, 2006; recommend providing LIEBHERR-AEROSPACE with the part number and serial number of the cylinder housing of the SSC if the identification plate is missing; this AD requires identifying the part number of the SSC cylinder housing by using a method approved by either the Manager, International Branch, ANM-116; or the EASA (or its delegated agent). Actions Done According to Previous Issues of Service Bulletins
(i)Accomplishing the actions specified in paragraph
(f)of this AD is acceptable for compliance with the requirements of that paragraph if done before the effective date of this AD in accordance with the applicable service bulletin identified in Table 1 of this AD. Table 1.—Previous Airbus Service Bulletins Service Bulletin Revision level Date A330-27-3113 Original September 15, 2003. A330-27-3113 Revision 01 October 3, 2003. A330-27-3113 Revision 02 June 11, 2004. A330-27-3113 Revision 03 March 17, 2006. A340-27-4139 Original March 17, 2006. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, International Branch, ANM-116, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information
(k)EASA airworthiness directives 2006-0158 and 2006-0159, both dated June 7, 2006, also address the subject of this AD. Material Incorporated by Reference
(l)You must use Airbus Service Bulletin A330-27-3113, Revision 04, dated June 13, 2006; or Airbus Service Bulletin A340-27-4139, Revision 01, dated June 12, 2006; as applicable, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Renton, Washington, on February 22, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-3855 Filed 3-6-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-24004; Airspace Docket No. 06-AAL-13] RIN 2120-AA66 Revision of Class E Airspace; Huslia, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This technical amendment corrects a final rule published in the **Federal Register** on June 19, 2006 (71 FR 35151), Docket No. FAA-2006-24004, Airspace Docket No. 06-AAL-13. In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. Also, the corresponding dates that refer to the Order should state “* * *September 1, 2006, and effective September 15, 2006* * *”, instead of “* * *September 1, 2005, and effective September 15, 2005”. This technical amendment corrects those errors. EFFECTIVE DATE: 0901 UTC, March 7, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On June 19, 2006, a final rule was published in the **Federal Register** , Docket No. FAA-2006-24004, Airspace Docket No. 06-AAL-13, that amended Title 14 Code of Federal Regulations part 71 by revising the Class E Airspace area at Huslia, AK (71 FR 35151). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. In addition, the corresponding dates that refer to the Order are incorrect. Instead of “* * *September 1, 2005, and effective September 15, 2005”, the dates should read “* * *September 1, 2006, and effective September 15, 2006* * *”. Amendment to Final Rule Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for Docket No. FAA-2006-24004, Airspace Docket No. 06-AAL-13, as published in the **Federal Register** on June 19, 2006 (71 FR 35151), is corrected as follows: On page 35152, column 1, lines 52, 53, 54 and 55, column 3, lines 5, 7 and 8, amend the language to read: § 71.1 [Amended] “* * *FAA Order 7400.9P” instead of “FAA Order 7400.9N* * *”. “* * *September 1, 2006, and effective September 15, 2006* * *” instead of “* * *September 1, 2005, and effective September 15, 2005* * *”. Issued in Washington, DC, February 20, 2007. Edith V. Parish, Manager, Airspace and Rules. [FR Doc. E7-3938 Filed 3-6-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF STATE 22 CFR Part 41 RIN 1400-AB49 [Public Notice 5711] Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended AGENCY: State Department. ACTION: Final rule. SUMMARY: This final rule amends the Department of States regulations related to students and exchange visitors to reflect changes introduced by Public Law108-441, and numerous administrative and procedural changes that have occurred with respect to these paragraphs following the transfer of the exchange visitor INA 212(e) waiver authority in 1999 from the United States Information Agency
(USIA)to the Bureau of Consular Affairs in the Department of State. A number of these changes are non-substantive (i.e., agency name changes [the Department of Homeland Security in place of the Immigration and Naturalization Service], updating of office designations, etc.). Other changes reflect statutory amendments regarding waivers for the exchange visitor physicians and the proposed reconstitution of the Exchange Visitor Waiver Review Board. DATES: This rule is effective on March 7, 2007. FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106,
(202)663-1202, e-mail ( *robertsonce3@state.gov* ). SUPPLEMENTARY INFORMATION: Why is the Department promulgating this rule? On October 1, 1999, the United States Information Agency was consolidated into the United States Department of State. The reorganization was carried out in accordance with the Foreign Affairs Reform and Restructuring Act of 1998, which also called for the Arms Control and Disarmament Agency and some functions of the Agency for International Development to be integrated into the Department of State. As a consequence of this extensive merger, the Department of State issued a final rule (64 FR 54538-54541) amending USIA's regulations. The final rule repealed, revised, re-designated, and otherwise amended USIA's authorities. Among other things, the USIA Waiver Review Branch of the Office of the General Counsel was moved into the Department of State's Visa Office. The USIA Waiver Review Branch became the Waiver Review Division of the Office of Legislation, Regulations, and Advisory Assistance, Visa Services, Bureau of Consular Affairs, CA/VO/L/W. It maintains its previous responsibilities for reviewing applications by J-1 exchange visitors who are seeking waivers of the two-year foreign residence requirement set forth at Section 212(e) of the Immigration and Nationality Act (INA). The Division makes recommendations to the Department of Homeland Security concerning such waivers. Do these administrative changes really need changes in the authorities? The Department of State inherited a multitude of functions as a result of the October 1, 1999 consolidation of USIA into the Department of State. The pertinent regulations to the waiver function contain errors as well as out-of-date references, so this regulation corrects these items. Also, Public Law 108-441, signed into law on December 3, 2004, amended section 214(l) of the Immigration and Nationality Act, which makes certain changes regarding foreign medical graduates who obtain J-1 status in order to receive graduate medical education or training. What specific errors does this regulation address? Our regulation updates the required J-visa application form (Certificate of Eligibility for Exchange Visitor (J-1) Status), IAP-66, to reflect the current Department-approved designation, DS-2019. The term “Secretary of State” replaces the term “Director of USIA”. The Department of Homeland Security replaces the Immigration and Naturalization Service. The medical schools have been clearly identified as “foreign” medical schools. The Waiver Review Board, which is occasionally and incorrectly referred to as the “division” rather than the “board”, is also herein corrected. Finally, references to USIA's authorities previously located at 22 CFR part 514 have been corrected to reflect their relocation at 22 CFR 41.62 and 41.63. The regulation also simplifies language identifying the jurisdictional DHS office to which the waiver recommendation is sent. The language is flexible permitting DHS to designate different offices without the need for the Department to modify these regulations. Why is the Department making the review of persecution cases with the Bureau of Democracy, Human Rights and Labor
(DRL)permissive rather than mandatory? Section 212
(e)of the Act grants the Department of Homeland Security (DHS), exclusive authority to determine the existence of prospective persecution in these cases. Thus, the Visa Office honors the holding of DHS in these cases and perceives no need to submit all cases for further review. We have found that the results are sufficiently consistent with DHS findings to render this action superfluous. Furthermore, the Waiver Review Division will only submit a case for an opinion if it believes that circumstances may have meaningfully changed since the DHS finding of persecution. Why is the Waiver Review Board being reconstituted? The Waiver Review Board provided USIA with an excellent means of deciding cases that have compelling competing interests. The Visa Office found the Board to be a useful tool for representing differing interests and for reaching a consensus on difficult cases. This regulation proposes to realign the representation of the Board by apportioning Board membership between policy formulators in the Bureau of Consular Affairs and principals administering the exchange visitor program interests in the Bureau of Education and Cultural Affairs. The rule proposes to designate the Principal Deputy Assistant Secretary for Consular Affairs as the chair. Why is the Department not clearly identifying the number of cases that can be approved annually under the Conrad program? The old regulation indicates that 20 exchange visitor physicians could qualify for this program per state annually. But the law was amended to increase that number to 30. Further modifications to the numerical limitation on Conrad program beneficiaries are a distinct possibility; consequently, to avoid periodic amendment of the regulation, the language is being modified to refer non-specifically to the annual limitation. Regulatory Findings Administrative Procedure Act This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553. Regulatory Flexibility Act/Executive Order 13272 Small Business. This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act, and, accordingly it does not require analysis under the Regulatory Flexibility Act (5 U.S.C. 601, *et seq.* ) and Executive Order 13272, section 3(b). The Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments. The Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets. Executive Order 12866: Regulatory Review The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. Executive Orders 12372 and 13132: Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132. Executive Order 12988: Civil Justice Reform The Department has reviewed the proposed regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Paperwork Reduction Act This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35. List of Subjects in 22 CFR Part 41 Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas, Students. For the reasons stated in the preamble, the Department of State amends 22 CFR Part 41 to read as follows: PART 41—[AMENDED] 1. The authority citation for part 41 continues to read: Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801. Additional authority is derived from Section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Pub. L. 104-208, 110 Stat. 3546. 2. Section 41.62 is amended by revising paragraphs (a)(1), (c)(1)(i), (c)(1)(ii), and (c)(3) to read as follows: § 41.62 Exchange visitors.
(a)* * *
(1)Has been accepted to participate, and intends to participate, in an exchange visitor program designated by the Bureau of Education and Cultural Affairs, Department of State, as evidenced by the presentation of a properly executed Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status;
(c)* * *
(1)* * *
(i)The alien's participation in one or more exchange programs was wholly or partially financed, directly or indirectly, by the U.S. Government or by the government of the alien's last legal permanent residence; or
(ii)At the time of the issuance of an exchange visitor visa and admission to the United States, or, if not required to obtain a nonimmigrant visa, at the time of admission as an exchange visitor, or at the time of acquisition of such status after admission, the alien is a national and resident or, if not a national, a legal permanent resident (or has status equivalent thereto) of a country which the Secretary of State has designated, through publication by public notice in the **Federal Register** , as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien will engage during the exchange visitor program; or
(3)The country in which 2 years' residence and physical presence will satisfy the requirements of INA 212(e) in the case of an alien determined to be subject to such requirements is the country of which the alien is a national and resident, or, if not a national, a legal permanent resident (or has status equivalent thereto). 3. Section 41.63 is amended by revising paragraphs (a)(1)(ii), (a)(2), (a)(3), (b)(1), (b)(2), (c)(1), (c)(3), (c)(4) introductory text, (c)(5), (d)(1), (d)(2), (d)(3), (e)(1), (e)(2), (e)(3)(i), (e)(3)(ii), (e)(3)(iii), (e)(3)(iv), (e)(3)(v), (e)(3)(viii), (e)(4),
(f)and
(g)to read as follows: § 41.63 Two-year home-country physical presence requirement.
(a)* * *
(1)* * *
(ii)Who at the time of admission or acquisition of status under 101(a)(15)(J) was a national or legal permanent resident of a country which the Secretary of State, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged [See the most recent “Revised Exchange Visitor Skills List”, at *http://exchanges.state.gov/education/jexchanges/participation/skills_list.pdf* ]; or
(2)Upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency (or in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, pursuant to the request of a State Department of Public Health, or its equivalent), or of the Secretary of Homeland Security after the latter has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or that the alien cannot return to the country of his nationality or last legal permanent residence because he would be subject to persecution on account of race, religion, or political opinion, the Secretary of Homeland Security may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Secretary of Homeland Security to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, the waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184).
(3)Except in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, the Secretary of Homeland Security, upon the favorable recommendation of the Secretary of State, may also waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last legal permanent residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien. Notwithstanding the foregoing, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs
(2)and
(e)of this section.
(b)* * *
(1)An exchange visitor who seeks a waiver of the two-year home-country residence and physical presence requirement on the grounds that such requirement would impose exceptional hardship upon the exchange visitor's spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or on the grounds that such requirement would subject the exchange visitor to persecution on account of race, religion, or political opinion, shall submit the application for waiver (DHS Form I-612) to the jurisdictional office of the Department of Homeland Security. (2)(i) If the Secretary of Homeland Security (Secretary of DHS) determines that compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor, or would subject the exchange visitor to persecution on account of race, religion, or political opinion, the Secretary of DHS shall transmit a copy of his determination together with a summary of the details of the expected hardship or persecution, to the Waiver Review Division, in the Department of State's Bureau of Consular Affairs.
(ii)With respect to those cases in which the Secretary of DHS has determined that compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor, the Waiver Review Division shall review the program, policy, and foreign relations aspects of the case, make a recommendation, and forward it to the appropriate office at DHS. If it deems it appropriate, the Waiver Review Division may request the views of each of the exchange visitors' sponsors concerning the waiver application. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(iii)With respect to those cases in which the Secretary of DHS has determined that compliance with the two-year home-country residence and physical presence requirement would subject the exchange visitor to persecution on account of race, religion, or political opinion, the Waiver Review Division shall review the program, policy, and foreign relations aspects of the case, including consultation if deemed appropriate with the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State, make a recommendation, and forward such recommendation to the Secretary of DHS. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State and such recommendation shall be forwarded to DHS.
(c)* * *
(1)A United States Government agency may request a waiver of the two-year home-country residence and physical presence requirement on behalf of an exchange visitor if such exchange visitor is actively and substantially involved in a program or activity sponsored by or of interest to such agency.
(3)A request by a United States Government agency shall be signed by the head of the agency, or his or her designee, and shall include copies of all IAP 66 or DS-2019 forms issued to the exchange visitor, his or her current address, and his or her country of nationality or last legal permanent residence.
(4)A request by a United States Government agency, excepting the Department of Veterans Affairs, on behalf of an exchange visitor who is a foreign medical graduate who entered the United States to pursue graduate medical education or training, and who is willing to provide primary care or specialty medicine in a designated primary care Health Professional shortage Area, or a Medically Underserved Area, or psychiatric care in a Mental Health Professional Shortage Area, shall, in additional to the requirement set forth in paragraphs (c)(2) and
(3)of this section, include:
(5)Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State and such recommendation shall be forwarded to the Secretary of DHS.
(d)* * *
(1)Applications for waiver of the two-year home-country residence and physical presence requirement may be supported by a statement of no objection by the exchange visitor's country of nationality or last legal permanent residence. The statement of no objection shall be directed to the Secretary of State through diplomatic channels; i.e., from the country's Foreign Office to the Department of State through the U.S. Mission in the foreign country concerned, or through the foreign country's head of mission or duly appointed designee in the United States to the Secretary of State in the form of a diplomatic note. This note shall include applicant's full name, date and place of birth, and present address. If deemed appropriate, the Department of State may request the views of each of the exchange visitor's sponsors concerning the waiver application.
(2)The Waiver Review Division shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Secretary of DHS. Except as set forth in § 41.63(g)(4), infra, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(3)An exchange visitor who is a graduate of a foreign medical school and who is pursuing a program in graduate medical education or training in the United States is prohibited under section 212(e) of the Immigration and Nationality Act from applying for a waiver solely on the basis of no objection from his or her country of nationality or last legal permanent residence. However, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs (a)(2) and
(e)of this section.
(e)* * *
(1)Pursuant to Public Law 103-416, in the case of an alien who is a graduate of a medical school pursuing a program in graduate medical education or training, a request for a waiver of the two-year home-country residence and physical presence requirement may be made by a State department of Public Health, or its equivalent. Such waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1194(l)) and this § 41.63.
(2)With respect to such waiver under Public Law 104-416, if such alien is contractually obligated to return to his or her home country upon completion of the graduate medical education or training, the Secretary of State is to be furnished with a statement in writing that the country to which such alien is required to return has no objection to such waiver. The no objection statement shall be furnished to the Secretary of State in the manner and form set forth in paragraph
(d)of this section and, additionally, shall bear a notation that it is being furnished pursuant to Public Law 103-416.
(3)* * *
(i)A completed DS-3035. Copies of these forms may be obtained from the Visa Office or online at *http://www.travel.state.gov.*
(ii)A letter from the Director of the designated State Department of Public Health, or its equivalent, which identifies the foreign medical graduate by name, country of nationality or country of last legal permanent residence, and date of birth, and states that it is in the public interest that a waiver of the two-year home residence requirement be granted;
(iii)An employment contract between the foreign medical graduate and the health care facility named in the waiver application, to include the name and address of the health care facility, and the specific geographical area or areas in which the foreign medical graduate will practice medicine. The employment contract shall include a statement by the foreign medical graduate that he or she agrees to meet the requirements set forth in section 214(l) of the Immigration and Nationality Act. The term of the employment contract shall be at least three years and the geographical areas of employment shall only be in areas, within the respective state, designated by the Secretary of Health and Human Services as having a shortage of health care professionals, unless the waiver request is for an alien who will practice medicine in a facility that serves patients who reside in one or more geographic areas so designated by the Secretary of Health and Human Services without regard to whether such facility is located within such a designated geographic area. For the latter situation, which will be referred to as “non-designated requests”, the contract should also state that the term of the employment contract shall be at least three years and employment shall only be in a facility that serves patients who reside in one or more geographic areas so designed by the Secretary of Health and Human Services as having a shortage of health care professionals.
(iv)Evidence establishing that the geographic area or areas in the state in which the foreign medical graduate will practice medicine or where patients who will be served by the foreign medical graduates reside, are areas which have been designated by the Secretary of Health and Human Services as having a shortage of health care professionals. For purposes of this paragraph, the geographic area or areas must be designated by the Department of Health and Human Services as a Health Professional Shortage Area (“HPSA”) or as a Medically Underserved Area/Medically Underserved Population (“MUA/MUP”).
(v)Copies of all forms IAP 66 or DS-2019 issued to the foreign medical graduate seeking the waiver;
(viii)Because of the numerical limitations on the approval of waivers under Public Law 103-416, *i.e.* , no more than the maximum number of waivers for each State each fiscal year as mandated by law, each application from a State Department of Public Health, or its equivalent, shall be numbered sequentially, beginning on October 1 of each year. The “non-designated” requests will also be numbered sequentially with appropriate identifier.
(4)The Waiver Review Division shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Secretary of DHS. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(f)*Changed Circumstances.* An applicant for a waiver on the grounds of exceptional hardship or probable persecution on account of race, religion, or political opinion, has a continuing obligation to inform the Department of Homeland Security of changed circumstances material to his or her pending application.
(g)*The Waiver Review Board.*
(1)The Waiver Review Board (“Board”) shall consist of the following persons or their designees:
(i)The Principal Deputy Assistant Secretary of the Bureau of Consular Affairs;
(ii)The Director of Office of Public Affairs for the Bureau of Consular Affairs;
(iii)The Legislative Management Officer for Consular Affairs, Bureau of Legislative Affairs;
(iv)The Director of the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs; and
(v)The Director of the Office of Policy and Evaluation in the Bureau of Educational and Cultural Affairs.
(2)A person who has had substantial prior involvement in a particular case referred to the Board may not be appointed to, or serve on, the Board for that particular case unless the Bureau of Consular Affairs determines that the individual's inclusion on the Board is otherwise necessary or practicably unavoidable.
(3)The Principal Deputy Assistant Secretary of Consular Affairs, or his or her designee, shall serve as Board Chairman. No designee under this paragraph (g)(3) shall serve for more than 2 years.
(4)Cases will be referred to the Board at the discretion of the Chief, Waiver Review Division, of the Visa Office. The Chief, Waiver Review Division, or his or her designee may, at the Chairman's discretion, appear and present facts related to the case but shall not participate in Board deliberations.
(5)The Chairman of the Board shall be responsible for convening the Board and distributing all necessary information to its members. Upon being convened, the Board shall review the case file and weigh the request against the program, policy, and foreign relations aspects of the case.
(6)The Bureau of Consular Affairs shall appoint, on a case-by-case basis, from among the attorneys in the State Department's Office of Legal Advisor one attorney to serve as legal advisor to the Board.
(7)At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Chief, Waiver Review Division.
(8)At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Chief, Waiver Review Division. Dated: February 23, 2007. Maura Harty, Assistant Secretary for Consular Affairs, Department of State. [FR Doc. E7-3871 Filed 3-6-07; 8:45 am] BILLING CODE 4710-06-P DEPARTMENT OF JUSTICE 28 CFR Parts 0, 5, 12, 17, 65, and 73 [Docket No. NSD 100; AG Order No. 2865-2007] Office of the Attorney General; National Security Division AGENCY: Department of Justice. ACTION: Final rule. SUMMARY: This rule amends part 0 of title 28 of the Code of Federal Regulations to reflect the establishment of the National Security Division at the Department of Justice. The National Security Division was created by section 506 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”). This rule, which sets forth the Division's organization, mission and functions, amends the Code of Federal Regulations in order to conform the Department's regulations to the Act and to reflect accurately the Department's internal management structure. This rule also amends the Department's regulations in title 28 other than in part 0 to make nomenclature and organizational changes reflecting the establishment of the National Security Division. DATES: *Effective Date:* March 7, 2007. FOR FURTHER INFORMATION CONTACT: Jessie Liu, National Security Division, U.S. Department of Justice, Washington, DC 20530; Telephone
(202)514-1057. SUPPLEMENTARY INFORMATION: On March 9, 2006, the President signed the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”), Public Law 109-277 (120 Stat. 192). Section 506 of the Act created a new National Security Division
(NSD)in the Department of Justice. This rule conforms the Department's regulations to the Act and sets forth the new Division's organization, mission, and functions. This rule reflects the establishment of the NSD, reporting to the Deputy Attorney General, by consolidating the resources of the Office of Intelligence Policy and Review
(OIPR)and the Criminal Division's Counterterrorism and Counterespionage Sections. These organizational changes will strengthen the Department's efforts to combat terrorism and other threats to national security. Consolidating OIPR and the Criminal Division's Counterterrorism and Counterespionage Sections under the NSD will ensure greater coordination and unity of purpose among the Department's primary organizational units that handle core national security matters. These changes will allow the Department to maximize the effectiveness of prosecutors handling cases in the core national security fields of counterterrorism and counterespionage, who will continue to carry out the same critical functions they handle today. The NSD will be positioned to coordinate all related Department resources and ensure that critical information is shared as appropriate across the Department and the Executive Branch. The mission of the NSD is to coordinate the Department's efforts in carrying out its core mission of combating terrorism and protecting national security. Among the major functions the NSD will perform are the following: • Develop, enforce, and supervise the application of all federal criminal laws related to the national counterterrorism and counterespionage enforcement programs, except those specifically assigned to other Divisions; • Prosecute and coordinate a wide range of criminal prosecutions and investigations targeting individuals and organizations involving terrorist acts at home or against U.S. persons or interests abroad or that assist in the financing of or providing support to those acts; • Administer the Foreign Intelligence Surveillance Act; • Supervise sensitive areas of law enforcement related to the activities of the National Security Division, except tasks assigned to other Divisions; • Advise, assist, coordinate with, and train those in the law enforcement community, including federal, state, and local prosecutors, investigative agencies and foreign criminal justice entities (provided that any training of foreign criminal justice entities should be conducted in coordination with the Criminal Division), in matters related to the Division's activities; • Advise the Attorney General, the Office of Management and Budget, and the White House on matters relating to the national security activities of the United States; and • Through the Assistant Attorney General for National Security, serve as the Department of Justice's primary liaison to the Director of National Intelligence. This rule also makes further amendments to the Department's regulations in title 28 other than in part 0 in order to make nomenclature and organizational changes reflecting the establishment of the NSD. Generally, the changes involve either adding the NSD to the list of the Department's components or substituting the NSD in place of either the Criminal Division or the Office of Intelligence Policy and Review. In some instances, the Assistant Attorney General for National Security is substituted for the Assistant Attorney General, Criminal Division or for the Counsel for Intelligence Policy, as appropriate. This rule only makes changes to the Department's internal organization and structure and does not affect the rights or obligations of the general public. Administrative Procedure Act—5 U.S.C. 553 This rule is a rule of agency organization and relates to a matter relating to agency management and is therefore exempt from the requirements of prior notice and comment and a 30-day delay in the effective date. *See* 5 U.S.C. 553(a)(2), 553(b)(3)(A). Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis was not required to be prepared for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter. Executive Order 12866—Regulatory Planning and Review This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. This rule is limited to agency organization, management, and personnel as described by section 3(d)(3) of that order and, therefore, is not a “regulation” or “rule” as defined by the order. Accordingly, this action has not been reviewed by the Office of Management and Budget. Executive Order 13132—Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12988—Civil Justice Reform This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1955 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Congressional Review Act This action pertains to agency management, personnel, and organizations and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply. List of Subjects 28 CFR Part 0 Authority delegations (Government agencies), Counterterrorism, Crime, Government employees, Law enforcement, National security information, Organization and functions (Government agencies), Privacy, Reporting and recordkeeping requirements, Terrorism, Whistleblowing. 28 CFR Part 5 Aliens, Foreign relations, Reporting and recordkeeping requirements, Security measures. 28 CFR Part 12 Crime, Foreign relations, Reporting and recordkeeping requirements, Security measures. 28 CFR Part 17 Classified information, Foreign relations. 28 CFR Part 65 Grant Programs-law, Law enforcement, Emergency assistance, Reporting and recordkeeping requirements. 28 CFR Part 73 Foreign relations, Security measures. Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, title 28 of the Code of Federal Regulations is amended as follows: PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE 1. The authority citation for part 0 continues to read as follows: Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519. § 0.1 [Amended] 2. Amend § 0.1 as follows: a. In the list of Offices, remove the title “Office of Intelligence and Policy Review”. b. In the list of Offices, add the title “Executive Office for Immigration Review” after the entry “Community Relations Service”. c. In the list of Offices, add the title “Professional Responsibility Advisory Office” at the end of the list. d. In the list of Divisions, remove the title “Land and Natural Resources Division” and add in its place the title “Environment and Natural Resources Division”. e. In the list of Divisions, add after the newly-renamed entry “Land and Natural Resources Division” the title “National Security Division”. f. In the list of Bureaus, remove the title “Office of Justice Assistance, Research and Statistics (and related agencies)” and add in its place the title “Office of Justice Programs (and related agencies)”. g. In the list of Bureaus, remove the title “Immigration and Naturalization Service”. Subpart F-1—[Removed and Reserved] 3. Remove and reserve subpart F-1. 4. Revise paragraph
(i)of § 0.55 to read as follows: § 0.55 General functions.
(i)All civil proceedings seeking exclusively equitable relief against Criminal Division activities including criminal investigations, prosecutions, and other criminal justice activities (including without limitation, applications for writs of coram nobis and writs of habeas corpus not challenging exclusion, deportation, or detention under the immigration laws), except that any proceeding may be conducted, handled, or supervised by the Assistant Attorney General for National Security or another Division by agreement between the head of such Division and the Assistant Attorney General, Criminal Division. §§ 0.61, 0.62, and 0.64 [Removed and Reserved] 5. Remove and reserve §§ 0.61, 0.62, and 0.64. 6. Revise § 0.64-1 to read as follows: § 0.64-1 Central or Competent Authority under treaties and executive agreements on mutual assistance in criminal matters. The Assistant Attorney General, Criminal Division, in consultation with the Assistant Attorney General for National Security in matters related to the National Security Division's activities, shall have the authority and perform the functions of the “Central Authority” or “Competent Authority” (or like designation) under treaties and executive agreements between the United States of America and other countries on mutual assistance in criminal matters that designate the Attorney General or the Department of Justice as such authority. The Assistant Attorney General, Criminal Division, is authorized to re-delegate this authority to the Deputy Assistant Attorneys General, Criminal Division, and to the Director and Deputy Directors of the Office of International Affairs, Criminal Division. 7. Revise § 0.64-2 to read as follows: § 0.64-2 Delegation respecting transfer of offenders to or from foreign countries. The Assistant Attorney General, Criminal Division, in consultation with the Assistant Attorney General for National Security in matters related to the National Security Division's activities, is authorized to exercise all of the power and authority vested in the Attorney General under 18 U.S.C. 4102 that has not been delegated to the Director of the Bureau of Prisons under 28 CFR 0.96b, including specifically the authority to find appropriate or inappropriate the transfer of offenders to or from a foreign country under a treaty as referred to in Public Law 95-144. The Assistant Attorney General, Criminal Division is authorized to redelegate this authority within the Criminal Division to the Deputy Assistant Attorneys General, the Director of the Office of Enforcement Operations, and the Senior Associate Director and Associate Directors of the Office of Enforcement Operations. 8. Revise § 0.64-4 to read as follows: § 0.64-4 Delegation respecting temporary transfers, in custody, of certain prisoner-witnesses from a foreign country to the United States to testify in Federal or State criminal proceedings. The Assistant Attorney General, Criminal Division, in consultation with the Assistant Attorney General for National Security in matters related to the National Security Division's activities, is authorized to exercise all of the power and authority vested in the Attorney General under 18 U.S.C. 3508 that has not been delegated to the Director of the United States Marshals Service under 28 CFR 0.111a, including specifically the authority to determine whether and under what circumstances temporary transfer of a prisoner-witness to the United States is appropriate or inappropriate; to determine the point at which the witness should be returned to the transferring country; and to enter into appropriate agreements with the transferring country regarding the terms and conditions of the transfer. The Assistant Attorney General, Criminal Division is authorized to redelegate this authority within the Criminal Division to the Deputy Assistant Attorneys General and to the Director and Deputy Directors of the Office of International Affairs. 9. Revise § 0.64-5 to read as follows: § 0.64-5 Policy with regard to bringing charges under the Economic Espionage Act of 1996, Pub. L. 104-294, effective October 11, 1996. The United States may not file a charge under 18 U.S.C. 1831 of the Economic Espionage Act of 1996 (the “EEA”) (18 U.S.C. 1831 *et seq.* ), or use a violation under section 1831 of the EEA as a predicate offense under any other law, without the personal approval of the Attorney General, the Deputy Attorney General, the Assistant Attorney General for National Security, or the Assistant Attorney General, Criminal Division (or the Acting official in each of these positions if a position is filled by an Acting official). Violations of this regulation are appropriately sanctionable and will be reported by the Attorney General to the Senate and House Judiciary Committees. Responsibility for reviewing proposed charges under section 1831 of the EEA rests with the Counterespionage Section of the National Security Division, which will consult, as necessary, with the Computer Crime and Intellectual Property Section of the Criminal Division. This regulation shall remain in effect until October 11, 2011. 10. Redesignate subpart M as subpart L and revise the subpart heading to read as follows: Subpart L—Environment and Natural Resources Division 11. Redesignate subpart N as subpart M. 12. Add a new subpart N consisting of § 0.72 to read as follows: Subpart N—National Security Division § 0.72 National Security Division. The following functions are assigned to and shall be conducted, handled, or supervised by the Assistant Attorney General for National Security:
(a)*General functions* .
(1)Advise the Attorney General, the Office of Management and Budget, and the White House, and brief Congress, as appropriate, on matters relating to the national security activities of the United States, and ensure that all of the Department's national security activities are effectively coordinated;
(2)Develop, enforce, and supervise the application of all federal criminal laws related to the national counterterrorism and counterespionage enforcement programs, except those specifically assigned to other Divisions;
(3)Represent the Department on interdepartmental boards, committees, and other groups dealing with national security, intelligence, or counterintelligence matters;
(4)Oversee the development, coordination, and implementation of Department policy, in conjunction with other components of the Department as appropriate, with regard to intelligence, counterintelligence, or national security matters;
(5)Provide legal assistance and advice, in coordination with the Office of Legal Counsel as appropriate, to Government agencies on matters of national security law and policy;
(6)Administer the Foreign Intelligence Surveillance Act;
(7)Prosecute Federal crimes involving national security, foreign relations, and terrorism, and coordinate the Department's activities and advice on all issues with respect to the Foreign Intelligence Surveillance Act of 1978, as amended, and the Classified Information Procedures Act arising in connection with any such prosecutions;
(8)Prosecute and coordinate prosecutions and investigations targeting individuals and organizations involved in terrorist acts at home or against U.S. persons or interests abroad, or that assist in the financing of or providing support to those acts;
(9)Except in the case of emergencies where there is an immediate threat to life or property, review for concurrence the Department's use of criminal proceedings in connection with all matters relating to intelligence, counterintelligence, or counterterrorism. Such criminal proceedings include, but are not limited to, grand jury proceedings, the filing of search and arrest warrants or applications for electronic surveillance pursuant to 18 U.S.C. 2510 *et seq.* and 18 U.S.C. 2701 *et seq.* , the filing of complaints, the return of indictments, criminal forfeiture proceedings, and appeals;
(10)Evaluate Departmental activities and existing and proposed domestic and foreign intelligence, counterintelligence, or national security activities to determine their consistency with United States national security policies and law;
(11)Formulate policy alternatives and recommend action by the Department and other executive agencies in achieving lawful United States intelligence, counterintelligence, or national security objectives;
(12)Analyze and interpret current statutes, executive orders, guidelines, and other directives pertaining to intelligence, counterintelligence, or national security matters;
(13)Formulate legislative initiatives, policies, and guidelines relating to intelligence, counterintelligence, or national security matters;
(14)Review and comment upon proposed statutes, guidelines, and other directives with regard to national security matters, and, in conjunction with the Office of Legal Counsel, review and comment upon the form and legality of proposed executive orders that touch upon matters related to the function of this Division;
(15)Provide training for Departmental components on legal topics related to intelligence, counterintelligence, or national security matters;
(16)Advise, assist, coordinate with, and train those in the law enforcement community, including federal, state, and local prosecutors, investigative agencies, and foreign criminal justice entities (provided that any training of foreign criminal justice entities should be conducted in coordination with the Criminal Division);
(17)Provide oversight of intelligence, counterintelligence, or national security matters by executive branch agencies to ensure conformity with applicable law, executive branch regulations, and Departmental objectives and report to the Attorney General on such activities;
(18)Supervise the preparation of the National Security Division's submission for the annual budget;
(19)Serve as primary liaison to the Director of National Intelligence for the Department of Justice;
(20)Represent the Department on the Committee on Foreign Investments in the United States; and
(21)Perform other duties pertaining to intelligence, counterintelligence, counterterrorism, or national security matters as may be assigned by the Attorney General or the Deputy Attorney General.
(b)*Functions related to intelligence policy and operations.*
(1)Advise and assist the Attorney General in carrying out his responsibilities under Executive Order 12333, “United States Intelligence Activities,” and other statutes, executive orders, and authorities related to intelligence, counterintelligence, or national security matters;
(2)Supervise the preparation of certifications and applications for orders under the Foreign Intelligence Surveillance Act of 1978, as amended, and the representation of the United States before the United States Foreign Intelligence Surveillance Court and the United States Foreign Intelligence Court of Review;
(3)Participate in the development, implementation, and review of United States intelligence, counterintelligence, and national security policies, including procedures for the conduct of intelligence, counterintelligence, or national security activities;
(4)Supervise sensitive areas of law enforcement related to the activities of the National Security Division, except for tasks assigned to other Divisions; and
(5)Recommend action by the Department of Justice with regard to applications under the Foreign Intelligence Surveillance Act of 1978, as amended, as well as with regard to other investigative activities by executive branch agencies; and
(6)To the extent deemed appropriate by the Assistant Attorney General for National Security, prepare periodic and special intelligence reports describing and evaluating domestic and foreign intelligence and counterintelligence activities and assessing trends or changes in these activities.
(c)*Functions related to counterterrorism.*
(1)Participate in the systematic collection and analysis of data and information relating to the investigation and prosecution of terrorism cases;
(2)Coordinate with Government departments and agencies to facilitate prevention of terrorist activity through daily detection and analysis and to provide information and support to the Offices of the United States Attorneys;
(3)Prosecute matters involving counterterrorism;
(4)Prosecute terrorist financing matters, including material support cases, through the Division's counterterrorism programs;
(5)Formulate legislative initiatives, policies, and guidelines relating to terrorism;
(6)Prosecute matters involving torture, genocide, and war crimes to the extent such matters involve the activities of the National Security Division;
(7)Assist in the foreign terrorist organization designation process with the Department of State, the Department of the Treasury, and the components of the Department of Justice; and
(8)Provide legal advice to attorneys for the Government concerning federal national security statutes, including but not limited to: aircraft piracy and related offenses (49 U.S.C. 46501-07); aircraft sabotage (18 U.S.C. 32); crimes against internationally protected persons (18 U.S.C. 112, 878, 1116, 1201(a)(4)); sea piracy (18 U.S.C. 1651); hostage taking (18 U.S.C. 1203); terrorist acts abroad, including murder, against United States nationals (18 U.S.C. 2332); acts of terrorism transcending national boundaries (18 U.S.C. 2332b); conspiracy within the United States to murder, kidnap, or maim persons or to damage property overseas (18 U.S.C. 956); providing material support to terrorists and terrorist organizations (18 U.S.C. 2339A, 2339B, 2339C); and using biological, nuclear, chemical or other weapons of mass destruction (18 U.S.C. 175, 831, 2332c, 2332a).
(d)*Functions related to internal security.*
(1)Enforcement of all criminal laws relating to subversive activities and kindred offenses directed against the internal security of the United States, including the laws relating to treason, sabotage, espionage, and sedition; enforcement of the Foreign Assets Control Regulations issued under the Trading With the Enemy Act (31 CFR 500.101 *et seq.* ); criminal prosecutions under the Atomic Energy Act of 1954, the Smith Act, the neutrality laws, the Arms Export Control Act, the Federal Aviation Act of 1958 (49 U.S.C. 1523) relating to offenses involving the security control of air traffic, and 18 U.S.C. 799 and criminal prosecutions for offenses, such as perjury and false statements, arising out of offenses relating to national security;
(2)Administration and enforcement of the Foreign Agents Registration Act of 1938, as amended; the Act of August 1, 1956, 70 Stat. 899 (50 U.S.C. 851-857), including the determination in writing that the registration of any person coming within the purview of that Act would not be in the interest of national security; and the Voorhis Act (18 U.S.C. 2386);
(3)Administration and enforcement of the Internal Security Act of 1950, as amended;
(4)Conduct of civil proceedings seeking exclusively equitable relief against laws, investigations or administrative actions designed to protect the national security (including without limitation personnel security programs and the foreign assets control program);
(5)Interpretation of Executive Order 10450 of April 27, 1953, as amended, and advising other departments and agencies in connection with the administration of the federal employees security program, including the designation of organizations as required by the order; the interpretation of Executive Order 10501 of November 5, 1953, as amended, and of regulations issued thereunder in accordance with section 11 of that order; and the interpretation of Executive Order 10865 of February 20, 1960;
(6)Conduct of libels and civil penalty actions (including petitions for remission or mitigation of civil penalties and forfeitures, offers in compromise and related proceedings) arising out of violations of the Trading with the Enemy Act, the neutrality statutes, and the Arms Export Control Act;
(7)Enforcement and administration of the provisions of 2 U.S.C. 441e, relating to contributions by foreign nationals;
(8)Enforcement and administration of the provisions of 18 U.S.C. 219, relating to officers and employees of the United States acting as agents of foreign principals; and
(9)Enforcement and administration of criminal matters arising under the Military Selective Service Act of 1967.
(e)*Relationship to other offices.* Nothing in this subpart shall be construed as affecting the functions or overriding the authority of the Office of Legal Counsel as established by 28 CFR 0.25. 13. Revise § 0.175(a) to read as follows: § 0.175 Judicial and administrative proceedings.
(a)When the subject matter of a case or proceeding is within his or her respective jurisdiction, the Assistant Attorney General, Criminal Division, the Assistant Attorney General for National Security, or any Deputy Assistant Attorney General, Criminal Division or of the National Security Division is authorized to exercise the authority vested in the Attorney General by 18 U.S.C. 6003, to approve the application of a U.S. Attorney to a federal court for an order compelling testimony or the production of information by a witness in any proceeding before or ancillary to a court or grand jury of the United States, and the authority vested in the Attorney General by 18 U.S.C. 6004, to approve the issuance by an agency of the United States of an order compelling testimony or the production of information by a witness in a proceeding before the agency, when the subject matter of the case or proceeding is either within the cognizance of the Assistant Attorney General, Criminal Division, the Assistant Attorney General for National Security, or is not within the cognizance of the Divisions or Administration designated in paragraphs
(b)and
(c)of this section. PART 5—ADMINISTRATION AND ENFORCEMENT OF FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED 14. The authority citation for part 5 continues to read as follows: Authority: 28 U.S.C. 509, 510; Section 1, 56 Stat. 248, 257 (22 U.S.C. 620); title I, Pub. L. 102-395, 106 Stat. 1828, 1831 (22 U.S.C. 612 note). 15. Revise § 5.1 to read as follows: § 5.1 Administration and enforcement of the Act.
(a)The administration and enforcement of the Foreign Agents Registration Act of 1938, as amended (22 U.S.C. 611-621) (Act), subject to the general supervision and direction of the Attorney General, is assigned to, and conducted, handled, and supervised by, the Assistant Attorney General for National Security.
(b)The Assistant Attorney General for National Security is authorized to prescribe such forms, in addition to or in lieu of those specified in the regulations in this part, as may be necessary to carry out the purposes of this part.
(c)Copies of the Act, and of the rules, regulations, and forms prescribed pursuant to the Act, and information concerning the foregoing may be obtained upon request without charge from the National Security Division, Department of Justice, Washington, DC 20530. 16. Amend § 5.2 as follows: a. In paragraph (a), remove the words “Assistant Attorney General” and add, in their place, the words “Assistant Attorney General for National Security”. b. Revise paragraph (d). c. In paragraph (g), remove the words “Criminal Division” and add, in their place, the words “National Security Division”. d. In paragraph (h), remove the words “Criminal Division” in two places and add, in their place, the words “National Security Division”. e. In paragraph (i), remove the words “Criminal Division” and add, in their place, the words “National Security Division”. f. In paragraph (j), remove the words “Assistant Attorney General” and add, in their place, the words “Assistant Attorney General for National Security”. The revisions read as follows: § 5.2 Inquiries concerning application of the Act.
(d)Address. A review request must be submitted in writing to the Assistant Attorney General for National Security, Department of Justice, Washington, DC 20530. 17. Amend § 5.100 by revising paragraphs (a)(3) and (a)(5), removing paragraph (a)(6), and redesignating paragraphs (a)(7) through (a)(13) as paragraphs (a)(6) through (a)(12) to read as follows: § 5.100 Definition of terms.
(a)* * *
(3)The term *Assistant Attorney General* means the Assistant Attorney General for National Security, Department of Justice, Washington, DC 20530.
(5)The term *rules and regulations* includes the regulations in this part and all other rules and regulations prescribed by the Attorney General pursuant to the Act and all registration forms and instructions thereon that may be prescribed by the regulations in this part or by the Assistant Attorney General for National Security. 18. In § 5.501, remove the words “Criminal Division” and add, in their place, the words “National Security Division”. PART 12—REGISTRATION OF CERTAIN PERSONS HAVING KNOWLEDGE OF FOREIGN ESPIONAGE, COUNTERESPIONAGE, OR SABOTAGE MATTERS UNDER THE ACT OF AUGUST 1, 1956 19. The authority citation for part 12 is revised to read as follows: Authority: Sec. 5, 70 Stat. 900; 50 U.S.C. 854. 20. Revise § 12.2 to read as follows: § 12.2 Administration of act. The administration of the act is assigned to the National Security Division, Department of Justice. Communications with respect to the act shall be addressed to the National Security Division, Department of Justice, Washington, DC 20530. Copies of the act and the regulations contained in this part, including the forms mentioned therein, may be obtained upon request without charge. 21. Revise 12.20 to read as follows: § 12.20 Filing of registration statement. Registration statements shall be filed in duplicate with the National Security Division, Department of Justice, Washington, DC 20530. Filing may be made in person or by mail, and shall be deemed to have taken place upon the receipt thereof by the Division. PART 17—CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO CLASSIFIED INFORMATION 22. The authority citation for part 17 is revised to read as follows: Authority: 28 U.S.C. 501, 509, 510, 515-519; 5 U.S.C. 301; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391; 32 CFR part 2001. § 17.1 [Amended] 23. In § 17.1(a) remove the words “Office of Intelligence Policy and Review” and add, in their place, the words “National Security Division”. 24. Revise § 17.13 to read as follows: § 17.13 National Security Division; interpretation of Executive Orders.
(a)The Assistant Attorney General for National Security or a designee shall represent the Attorney General at interagency meetings on matters of general interest concerning national security information.
(b)The Assistant Attorney General for National Security shall provide advice and interpretation on any issues that arise under Executive Orders 12958 and 12968 and shall refer such questions to the Office of Legal Counsel, as appropriate.
(c)Any request for interpretation of Executive Order 12958 or Executive Order 12968, pursuant to section 6.1(b) of Executive Order 12958, and section 7.2(b) of Executive Order 12968, shall be referred to the Assistant Attorney General for National Security, who shall refer such questions to the Office of Legal Counsel, as appropriate. 25. Revise § 17.14(b)(1) to read as follows: § 17.14 Department Review Committee. (b)(1) The DRC shall consist of a senior representative designated by the:
(i)Deputy Attorney General;
(ii)Assistant Attorney General, Office of Legal Counsel;
(iii)Assistant Attorney General, Criminal Division;
(iv)Assistant Attorney General, Civil Division;
(v)Assistant Attorney General for National Security;
(vi)Assistant Attorney General for Administration; and
(vii)Director, Federal Bureau of Investigation. § 17.15 [Amended] 26. In § 17.15(b), remove the words “Counsel for Intelligence Policy” and add, in their place, the words “Assistant Attorney General for National Security”. 27. Revise § 17.18(b), (i), (j)(2), and (j)(3) to read as follows: § 17.18 Prepublication review.
(b)Persons subject to these requirements are invited to discuss their plans for public disclosures of information that may be subject to these obligations with authorized Department representatives at an early stage, or as soon as circumstances indicate these policies must be considered. Except as provided in paragraph
(j)of this section for FBI personnel, all questions concerning these obligations should be addressed to the Assistant Attorney General for National Security, Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530. The official views of the Department on whether specific materials require prepublication review may be expressed only by the Assistant Attorney General for National Security and persons should not act in reliance upon the views of other Department personnel.
(i)The Assistant Attorney General for National Security or a designee (or, in the case of FBI employees, the Section Chief, Records/Information Dissemination Section, Records Management Division) will respond substantively to prepublication review requests within 30 working days of receipt of the submission. Priority shall be given to reviewing speeches, newspaper articles, and other materials that the author seeks to publish on an expedited basis. The Assistant Attorney General's decisions may be appealed to the Deputy Attorney General, who will process appeals within 15 days of receipt of the appeal. The Deputy Attorney General's decision is final and not subject to further administrative appeal. Persons who are dissatisfied with the final administrative decision may obtain judicial review either by filing an action for declaratory relief, or by giving the Department notice of their intention to proceed with publication despite the Department's request for deletions of classified information and giving the Department 30 working days to file a civil action seeking a court order prohibiting disclosure. Employees and other affected individuals remain obligated not to disclose or publish information determined by the Government to be classified until any civil action is resolved.
(j)* * *
(2)FBI employees required to sign nondisclosure agreements containing a provision for prepublication review pursuant to this subpart shall submit materials for review to the Section Chief, Records/Information Dissemination Section, Records Management Division. Such individuals shall also submit questions as to whether specific materials require prepublication review under such agreements to that Section for resolution. Where such questions raise policy questions or concern significant issues of interpretation under such an agreement, the Section Chief, Records/Information Dissemination Section, Records Management Division, shall consult with the Assistant Attorney General for National Security, or a designee, prior to responding to the inquiry.
(3)Decisions of the Section Chief, Records/Information Dissemination Section, Records Management Division, concerning the deletion of classified information, may be appealed to the Director, FBI, who will process appeals within 15 working days of receipt. Persons who are dissatisfied with the Director's decision may, at their option, appeal further to the Deputy Attorney General as provided in paragraph
(i)of this section. Judicial review, as set forth in that paragraph, is available following final agency action in the form of a decision by the Director, if the appeal process in paragraph
(i)of this section is pursued, the Deputy Attorney General. § 17.42 [Amended] 28. In § 17.42(a), remove the words “Counsel for Intelligence Policy” and add, in their place, the words “Assistant Attorney General for National Security”. PART 65—EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE 29. The authority citation for part 65 continues to read as follows: Authority: The Comprehensive Crime Control Act of 1984, Title II, Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement Assistance, Pub. L. 98-473, 98 Stat. 1837, Oct. 12, 1984 (42 U.S.C. 10501 *et seq.* ); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105 Stat. 832. 30. Revise § 65.70(c) to read as follows: § 65.70 Definitions.
(c)*Federal law enforcement community.* The term *Federal law enforcement community* is defined by the Act as the heads of the following departments or agencies:
(1)Federal Bureau of Investigation;
(2)Drug Enforcement Administration;
(3)Criminal Division of the Department of Justice;
(4)Internal Revenue Service;
(5)Customs Service;
(6)Department of Homeland Security;
(7)U.S. Marshals Service;
(8)National Park Service;
(9)U.S. Postal Service;
(10)Secret Service;
(11)U.S. Coast Guard;
(12)Bureau of Alcohol, Tobacco, Firearms, and Explosives;
(13)National Security Division of the Department of Justice; and
(14)Other Federal agencies with specific statutory authority to investigate violations of Federal criminal law. PART 73—NOTIFICATIONS TO THE ATTORNEY GENERAL BY AGENTS OF FOREIGN GOVERNMENTS 31. The authority citation for part 73 continues to read as follows: Authority: 18 U.S.C. 951, 28 U.S.C. 509, 510. § 73.3 [Amended] 32. In § 73.3(a) remove the words “Registration Unit of the Criminal Division” and add, in their place, the words “National Security Division”. Dated: February 14, 2007. Alberto R. Gonzales, Attorney General. [FR Doc. E7-3755 Filed 3-6-07; 8:45 am] BILLING CODE 4410-PF-P DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2530 RIN 1210-AB15 Interim Final Rule Relating to Time and Order of Issuance of Domestic Relations Orders AGENCY: Employee Benefits Security Administration, Department of Labor. ACTION: Interim final rule with request for comments. SUMMARY: This document contains an interim final rule issued under section 1001 of the Pension Protection Act of 2006, Public Law 109-280 (PPA), which requires the Secretary of Labor to issue, not later than 1 year after the date of the enactment of the PPA, regulations clarifying certain issues relating to the timing and order of domestic relations orders under section 206(d)(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA). The rule contained in this document provides guidance to plan administrators, service providers, participants, and alternate payees on the qualified domestic relations order
(QDRO)requirements under ERISA. The rule is being adopted in response to the specific statutory directive contained in the PPA. Interested persons are invited to submit comments on the interim final rule for consideration by the Department of Labor in developing a final rule. DATES: *Effective date:* The interim final rule is effective on April 6, 2007. *Comment date:* Written comments on the interim final rule must be received by May 7, 2007. ADDRESSES: To facilitate the receipt and processing of comments, EBSA encourages interested persons to submit their comments electronically to *e-ORI@dol.gov,* or by using the Federal eRulemaking portal *http://www.regulations.gov* (follow instructions for submission of comments). Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments (preferably three copies) to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: QDRO Regulation. All comments will be available to the public, without charge, online at *http://www.regulations.gov* and *http://www.dol.gov/ebsa,* and at the Public Disclosure Room, Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Yolanda R. Wartenberg, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, Washington, DC 20210,
(202)693-8510. This is not a toll free number. SUPPLEMENTARY INFORMATION: A. Qualified Domestic Relations Order Provisions Section 206(d)(3) of title I of ERISA, and the related provisions of section 414(p) of the Internal Revenue Code of 1986 (Code), establish a limited exception to the prohibitions against assignment and alienation contained in ERISA section 206(d)(1) and Code section 401(a)(13). 1 Under this limited exception, a participant's benefits under a pension plan may be assigned to an alternate payee, defined as the participant's spouse, former spouse, child, or other dependent, pursuant to an order that constitutes a qualified domestic relations order
(QDRO)within the meaning of those provisions. Such QDROs, in addition, survive the federal preemption of State law imposed by ERISA section 514(a) by virtue of ERISA section 514(b)(7). 1 The QDRO provisions were added to ERISA and the Code by the Retirement Equity Act of 1984 (REA), Public Law 96-397, 96 Stat. 1438 (1984). Except where no corresponding provision exists, all references to paragraphs of ERISA section 206(d)(3) should be read to refer to corresponding provisions of Code section 414(p). The Secretary of Labor has authority to interpret the QDRO provisions, section 206(d)(3), and its parallel provision at section 414(p) of the Code, and to issue QDRO regulations in consultation with the Secretary of the Treasury. 29 U.S.C. 1056(d)(3)(N). The Secretary of the Treasury has authority to issue rules and regulations necessary to coordinate the requirements of section 414(p) (and the regulations issued by the Secretary of Labor thereunder) with the other provisions of Chapter I of Subtitle A of the Code. 26 U.S.C. 401(n). The Secretary of the Treasury has been consulted on this interim final rule. Pursuant to the QDRO provisions, a plan administrator must determine, in accordance with specified procedures, whether an order purporting to divide a participant's benefits under a plan meets the applicable requirements set forth in section 206(d)(3) of ERISA. If the plan administrator determines that the order meets these requirements and is, accordingly, a QDRO within the meaning of section 206(d)(3), the plan administrator must distribute the assigned portion of the participant's benefits to the alternate payee or payees named in the order in accordance with the terms of the order. Subparagraphs
(G)and
(H)of ERISA section 206(d)(3) set forth provisions relating to the procedures that a plan must establish, and a plan administrator must observe, in determining whether an order is a QDRO and in administering the plan and the participant's benefits during the period in which the plan administrator is making such a determination. The plan's procedures must be reasonable, must be in writing, must require prompt notification and disclosure of the procedures to participants and alternate payees upon receipt of an order, and must permit alternate payees to designate representatives for notice purposes. In addition, the plan administrator must complete the determination process and notify participants and alternate payees of its determination within a reasonable period after receipt of the order. Subparagraph
(H)of section 206(d)(3) provides specific procedural protection of a potential alternate payee's interest in a participant's benefits during the plan's determination process and for a period of up to 18 months (the 18-month period) during which the issue of the qualified status of a domestic relations order is being determined—whether by the plan administrator, by a court of competent jurisdiction, or otherwise. During the 18-month period, a plan administrator must separately account for any amounts that would have been payable to the alternate payee if the order had been immediately treated as a QDRO and must pay these amounts (including any interest thereon) to the alternate payee if the order is deemed qualified within such period. If the issue as to whether the order is a QDRO is not resolved within the 18-month period, the plan administrator is to pay such amounts to the person or persons who would have been entitled to the amounts if there had been no order. Any determination that an order is a QDRO that is made after the close of the 18-month period is to be applied prospectively only. If a plan fiduciary, acting in accordance with the fiduciary responsibility provisions of part 4 of title I of ERISA, treats an order as a QDRO (or determines that such an order is not a QDRO) and distributes benefits in accordance with that determination, paragraph
(I)of section 206(d)(3) provides that the obligations of the plan and its fiduciaries to the affected participants and alternate payees with respect to the distribution shall be treated as discharged. The QDRO provisions detail specific requirements that an order must satisfy in order to constitute a QDRO. The order must be a “domestic relations order” issued pursuant to a State domestic relations law (including a community property law) that relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant. Section 206(d)(3)(B)(ii). It must create or recognize the existence of an alternate payee's right to receive all or a portion of the benefits payable to a participant under a plan. Section 206(d)(3)(B)(i). Further, it must clearly specify the name and last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order; the amount or percentage of the participant's benefits to be paid by the plan(s) to each such alternate payee, or the manner in which such amount or percentage is to be determined; the number of payments or period to which the order applies; and each plan to which the order applies. Section 206(d)(3)(C). An order will fail to be a QDRO, however, if it requires the plan to provide any type or form of benefit, or any option, not otherwise provided under the plan; to provide increased benefits determined on the basis of actuarial value; or to pay benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. Section 206(d)(3)(D). B. Pension Protection Act of 2006 Under section 1001 of the Pension Protection Act of 2006 (PPA), Public Law 109-280, section 1001, 120 Stat. 780 (2006), Congress instructed the Secretary of Labor to issue regulations, not later than 1 year after the date of the enactment, under section 206(d)(3) of ERISA and section 414(p) of the Code, to clarify that—(1) a domestic relations order otherwise meeting the requirements to be a QDRO, including the requirements of section 206(d)(3)(D) of ERISA and section 414(p)(3) of the Code, shall not fail to be treated as a QDRO solely because—(A) the order is issued after, or revises, another domestic relations order or QDRO; or
(B)of the time at which it is issued. Section 1001 of the PPA also requires that the regulations clarify that such orders are subject to all of the same requirements and protections that apply to QDROs, including the provisions of section 206(d)(3)(H) of ERISA and section 414(p)(7) of the Code. C. Overview of Interim Final Rule Scope of the Regulation Paragraph
(a)of the regulation provides that the scope of the regulation is to implement the directive contained in section 1001 of the PPA to clarify certain timing issues with respect to domestic relations orders and qualified domestic relations orders under ERISA. Subsequent Domestic Relations Orders Paragraph (b)(1) of the regulation provides that a domestic relations order otherwise meeting ERISA's requirements to be a QDRO shall not fail to be treated as a QDRO solely because the order is issued after, or revises, another domestic relations order or QDRO. Paragraph (b)(2) provides examples of this rule. 2 Example 1 illustrates this rule as applied to a subsequent order revising an earlier QDRO involving the same parties. Example 2 illustrates this rule in the context of a subsequent order involving the same participant and a different alternate payee. 2 The examples in paragraphs (b)(2), (c)(2) and (d)(2) of the regulation show how the rules in paragraphs (b)(1), (c)(1) and (d)(1), respectively, apply to specific facts. They do not represent the only circumstances for which these rules would provide clarification. Timing of Domestic Relations Order Paragraph (c)(1) of the regulation provides that a domestic relations order otherwise meeting ERISA's requirements to be a QDRO shall not fail to be treated as a QDRO solely because of the time at which it is issued. Paragraph (c)(2) provides examples of this rule. Example 1 illustrates the principle that a domestic relation order will not fail to be a QDRO solely because it is issued after the death of the participant. Example 2 illustrates that a domestic relation order will not fail to be a QDRO solely because it is issued after the parties divorce. Example 3 illustrates that an order would not fail to be a QDRO solely because it is issued after the participant's annuity starting date. Requirements and Protections Paragraph (d)(1) of the regulation provides that any domestic relations order described in paragraph
(b)or
(c)of the regulation shall be subject to the same requirements and protections that apply to all QDROs under section 206(d)(3) of ERISA. Paragraph (d)(2) provides examples of this rule. Example 1 illustrates that, although an order will not fail to be a QDRO solely because it is issued after the death of the participant, the order would fail to be a QDRO if it requires the plan to provide a type or form of benefit, or any option, not otherwise provided under the plan. Example 2 illustrates application of the protective rules regarding segregation of payable benefits to a second order involving the same participant and alternate payee. Example 3 illustrates that, although an order will not fail to be a QDRO solely because it is issued after another QDRO, the order would fail to be a QDRO if it assigns benefits already assigned to another alternate payee under another QDRO. D. Effective Date The interim final regulation will be effective 30 days after the date of publication in the **Federal Register** . The guidance provided by the interim final regulation is in response to the direction from Congress in section 1001 of the PPA to the Secretary of Labor to issue regulations to clarify current law under section 206(d)(3) of ERISA. The Department, therefore, has determined it is necessary and appropriate to proceed with an interim final rule to provide the clarification mandated by Congress, while also requesting public comments on the matter for the purpose of drafting a final rule. E. Justification for Interim Final Rulemaking This regulation incorporates, with minor changes, language in section 1001 of the Pension Protection Act. The changes do not modify the meaning of the statutory language. In the Department's view, Congress directed the Secretary to adopt the substance of this language as a clarification of current law. In issuing these regulations, the Secretary has not deviated from the narrow Congressional directive. The examples included in the regulation merely provide interpretive guidance by explaining how the statutory language would apply to particular facts. Therefore, in accordance with section 553(b) of the Administrative Procedure Act, 5 U.S.C. 553(b), the Department finds for good cause that notice and public procedure on this regulation is unnecessary. To the extent that the examples go beyond the statutory language, they are purely interpretive and are not subject to the notice and public procedure requirements of section 553(b). F. Request for Comments The Department invites comments from interested persons on all aspects of the interim final rule, including whether, and to what extent, there are additional factual scenarios that should be added to the examples already in the interim final rule. To facilitate the receipt and processing of comments, EBSA encourages interested persons to submit their comments electronically by e-mail to *e-ORI@dol.gov,* or by using the Federal eRulemaking portal at *http://www.regulations.gov* (follow instructions for submission of comments). Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments (preferably three copies) to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: QDRO Regulation. All comments will be available to the public, without charge, online at *http://www.regulations.gov* and *http://www.dol.gov/ebsa,* and at the Public Disclosure Room, Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC, 20210. G. Regulatory Impact Analysis Executive Order 12866 Statement Under Executive Order 12866 (58 FR 51735), the Department must determine whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB). Section 3(f) of the Executive Order defines a “significant regulatory action” as an action that is likely to result in a rule
(1)having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”);
(2)creating serious inconsistency or otherwise interfering with an action taken or planned by another agency;
(3)materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Department has determined that this regulatory action is not economically significant within the meaning of section 3(f)(1) the Executive Order. However, the Office of Management and Budget
(OMB)has determined that the action is significant within the meaning of section 3(f)(4) of the Executive Order, and the Department accordingly provides the following assessment of its potential costs and benefits. This interim final rule is intended to clarify the statutory requirements for QDROs under section 206(d)(3) of ERISA and section 414(p) of the Code. The provisions of section 206(d)(3) generally assist State authorities in deciding permissible ways in which pension benefits may be divided in domestic relations matters. The rules and processes under section 206(d)(3) make it possible for plan administrators to determine whether a State order seeking to assign pension benefits to an alternate payee should be given effect under the plan; clear rules concerning what constitutes a QDRO have the effect of assisting plan administrators in reviewing orders received by the plan, as well as participants and alternate payees in planning how to take pension assets into account when significant events require making a division of marital assets. In directing the Department, in section 1001 of the Pension Protection Act, to clarify the application of the QDRO provisions, Congress expressed the view that existing uncertainty about the application of those provisions has caused difficulties meriting resolution through regulatory action. Uncertainty concerning the application of the QDRO provisions can impose litigation and other costs on plans, participants, and alternate payees, as well as on State domestic relations authorities, that will be reduced through the promulgation of this rule. Consistent with the view of Congress, the rule clarifies, first, that the sequence in which multiple orders may be issued does not in itself affect whether the orders are QDROs, and, second, that the time at which an order is issued does not, in itself, determine whether an order is or is not a QDRO. The rule further reiterates that an order must meet the specific requirements of sections 206(d)(3) of ERISA and section 414(p) of the Code. By reducing uncertainty over the application of the statutory requirements in specific circumstances, the rule is expected to reduce costs that might otherwise arise from the necessity of resolving uncertainty in such circumstances. By providing clearer rules for plan administrators, the rule is also expected to increase the efficiency of plan administration. In addition, the Department is issuing this rule in direct response to a Congressional directive. As described above, section 1001 of the Pension Protection Act requires the Department to issue regulations clarifying that an order otherwise meeting the requirements of section 206(d)(3) of ERISA for a QDRO should not fail to be treated as a QDRO solely because it was issued after or revised another order, or because of the time at which it was issued. In issuing this interim final rule, therefore, the Department is fulfilling objectives expressly endorsed by Congress. Because the rule applies only in certain specific circumstances and affects only a small subset of domestic relations orders, the Department believes that its economic impact will be small, overall, but positive. The rule is not anticipated to impose increased compliance costs, since it merely establishes the legal effect of certain sequences of events. Although it may cause some orders to be treated as QDROs that otherwise might be disputed (or fail to be treated as a QDRO), the rule provides certainty with respect to the circumstances it covers, which will aid State authorities seeking to divide pension benefits and assist plan administrators seeking to discharge their obligations under section 206(d)(3) of ERISA, without limiting the power of State authorities to determine the proper division of marital assets. The rule is expected generally to provide benefits to pension plans, plan participants and alternate payees, and State domestic relations authorities by increasing the clarity of the rules that apply to QDROs. Based on the foregoing assessment, the Department concludes that promulgation of this interim final rule will provide substantial benefits without imposing major costs. Paperwork Reduction Act The interim final regulation being issued here is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ) because it does not contain an “information collection” as defined in 44 U.S.C. 3502 (11). Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* )
(RFA)imposes certain requirements with respect to federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C 551 *et seq.* ) and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency certifies that a proposed rule will not have a significant economic impact on a substantial number of small entities, section 603 of the RFA requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the notice of proposed rule-making describing the impact of the rule on small entities and seeking public comment on such impact. Because this rule is being issued as an interim final rule, the RFA does not apply and the Department is not required to either certify that the rule will not have a significant impact on a substantial number of small businesses or conduct an initial regulatory flexibility analysis. Nevertheless, the Department has considered the likely impact of the interim rule on small entities in connection with its assessment under Executive Order 12866, described above, and believes this rule will not have a significant impact on a substantial number of small entities. For purposes of this discussion, the Department deemed a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans which cover fewer than 100 participants. The Department invites comments on the effect of the interim final rule on small entities. Congressional Review Act The interim final rule being issued here is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 *et seq.* ) and will be transmitted to Congress and the Comptroller General for review. The interim final rule is not a “major rule” as that term is defined in 5 U.S.C. 804, because it does not result in
(1)an annual effect on the economy of $100 million or more;
(2)a major increase in costs or prices for consumers, individual industries, or federal, State, or local government agencies, or geographic regions; or
(3)significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Unfunded Mandates Reform Act For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the interim final rule does not include any federal mandate that may result in expenditures by State, local, or tribal governments, or impose an annual burden exceeding $100 million on the private sector. Federalism Statement Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires federal agencies to adhere to specific criteria in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This interim final rule does not have federalism implications because it has no substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. One exception described in section 514(b)(7) is for qualified domestic relations orders, as defined in section 206(d)(3) of ERISA. The interim rule does not alter the provisions of the statute, but merely clarifies the status of certain types of domestic relations orders under ERISA. List of Subjects in 29 CFR Part 2530 Alternate payee, Divorce, Domestic relations orders, Employee benefit plans, Marital property, Pensions, Plan administrator, Qualified domestic relations orders, Spouse. For the reasons set forth in the preamble, the Department amends Subchapter D, Part 2530 of Title 29 of the Code of Federal Regulations as follows: Subchapter D—Minimum Standards for Employee Pension Benefit Plans Under the Employee Retirement Income Security Act of 1974 PART 2530—RULES AND REGULATIONS FOR MINIMUM STANDARDS FOR EMPLOYEE PENSION BENEFIT PLANS 1. The authority citation for part 2530 is revised to read as follows: Authority: Secs. 201, 202, 203, 204, 210, 505, 1011, 1012, 1014, and 1015, Pub. L. 93-406, 88 Stat. 852-862, 866-867, 894, 898-913, 924-929 (29 U.S.C. 1051-4, 1060, 1135, 26 U.S.C. 410, 411, 413, 414); Secretary of Labor's Order No. 13-76. Section 2530.206 also issued under sec. 1001, Pub. L. 109-280, 120 Stat. 780. 2. Add § 2530.206 to read as follows: § 2530.206 Time and order of issuance of domestic relations orders.
(a)*Scope.* This section implements section 1001 of the Pension Protection Act of 2006 by clarifying certain timing issues with respect to domestic relations orders and qualified domestic relations orders under the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29 U.S.C. 1001 *et seq.*
(b)*Subsequent domestic relations orders.*
(1)Subject to paragraph (d)(1) of this section, a domestic relations order shall not fail to be treated as a qualified domestic relations order solely because the order is issued after, or revises, another domestic relations order or qualified domestic relations order.
(2)The rule described in paragraph (b)(1) of this section is illustrated by the following examples: Example (1). *Subsequent domestic relations order between the same parties.* Participant and Spouse divorce, and the administrator of Participant's 401(k) plan receives a domestic relations order. The administrator determines that the order is a QDRO. The QDRO allocates a portion of Participant's benefits to Spouse as the alternate payee. Subsequently, before benefit payments have commenced, Participant and Spouse seek and receive a second domestic relations order. The second order reduces the portion of Participant's benefits that Spouse was to receive under the QDRO. The second order does not fail to be treated as a QDRO solely because the second order is issued after, and reduces the prior assignment contained in, the first order. Example (2). *Subsequent domestic relations order between different parties.* Participant and Spouse divorce, and the administrator of Participant's 401(k) plan receives a domestic relations order. The administrator determines that the order is a QDRO. The QDRO allocates a portion of Participant's benefits to Spouse as the alternate payee. Participant marries Spouse 2, and then they divorce. Participant's 401(k) plan administrator subsequently receives a domestic relations order pertaining to Spouse 2. The order assigns to Spouse 2 a portion of Participant's 401(k) benefits not already allocated to Spouse 1. The second order does not fail to be a QDRO solely because the second order is issued after the plan administrator has determined that an earlier order pertaining to Spouse 1 is a QDRO.
(c)*Timing.*
(1)Subject to paragraph (d)(1) of this section, a domestic relations order shall not fail to be treated as a qualified domestic relations order solely because of the time at which it is issued.
(2)The rule described in paragraph (c)(1) of this section is illustrated by the following examples: Example (1). *Orders issued after death.* Participant and Spouse divorce, and the administrator of Participant's plan receives a domestic relations order, but the administrator finds the order deficient and determines that it is not a QDRO. Shortly thereafter, Participant dies while actively employed. A second domestic relations order correcting the defects in the first order is subsequently submitted to the plan. The second order does not fail to be treated as a QDRO solely because it is issued after the death of the Participant. Example (2). *Orders issued after divorce.* Participant and Spouse divorce. As a result, Spouse no longer meets the definition of “surviving spouse” under the terms of the plan. Subsequently, the plan administrator receives a domestic relations order requiring that Spouse be treated as the Participant's surviving spouse for purposes of receiving a death benefit payable under the terms of the plan only to a participant's surviving spouse. The order does not fail to be treated as a QDRO solely because, at the time it is issued, Spouse no longer meets the definition of a “surviving spouse” under the terms of the plan. Example (3). *Orders issued after annuity starting date.* Participant retires and commences benefit payments in the form of a straight life annuity, with respect to which Spouse waives the surviving spousal rights provided under the plan and section 205 of ERISA. Participant and Spouse divorce after Participant's annuity starting date and present the plan with a domestic relations order providing for Spouse, as alternate payee, to receive half of the benefit payments that are made to Participant after a specified future date. Pursuant to paragraph (c)(1) of this section, the order does not fail to be a QDRO solely because it is issued after the annuity starting date.
(d)*Requirements and protections.*
(1)Any domestic relations order described in this section shall be subject to the same requirements and protections that apply to qualified domestic relations orders under section 206(d)(3) of ERISA.
(2)The rule described in paragraph (d)(1) of this section is illustrated by the following examples: Example (1). *Type or form of benefit.* Participant and Spouse divorce, and their divorce decree provides that the parties will prepare a domestic relations order assigning 50 percent of Participant's benefits under a 401(k) plan to Spouse to be paid in monthly installments over a ten-year period. Shortly thereafter, Participant dies while actively employed. A domestic relations order consistent with the decree is subsequently submitted to the 401(k) plan; however, the plan does not provide for ten-year installment payments of the type described in the order. Pursuant to paragraph (c)(1) of this section, the order does not fail to be treated as a QDRO solely because it is issued after the death of Participant, but the order would fail to be a QDRO under section 206(d)(3)(D)(i) and paragraph (d)(1) of this section because the order requires the plan to provide a type or form of benefit, or any option, not otherwise provided under the plan. Example (2). *Segregation of payable benefits.* Participant and Spouse divorce, and the administrator of Participant's plan receives a domestic relations order under which Spouse would begin to receive benefits immediately if the order is determined to be a QDRO. The plan administrator separately accounts for the amounts covered by the domestic relations order as is required under section 206(d)(3)(H)(v) of ERISA. The plan administrator finds the order deficient and determines that it is not a QDRO. Subsequently, after the expiration of the segregation period pertaining to that order, the plan administrator receives a second domestic relations order relating to the same parties under which Spouse would begin to receive benefits immediately if the second order is determined to be a QDRO. Notwithstanding the expiration of the first segregation period, the amounts covered by the second order must be separately accounted for by the plan administrator for an 18-month period, in accordance with section 206(d)(3)(H) of ERISA and paragraph (d)(1) of this section. Example (3). *Previously assigned benefits.* Participant and Spouse divorce, and the administrator of Participant's 401(k) plan receives a domestic relations order. The administrator determines that the order is a QDRO. The QDRO assigns a portion of Participant's benefits to Spouse as the alternate payee. Participant marries Spouse 2, and then they divorce. Participant's 401(k) plan administrator subsequently receives a domestic relations order pertaining to Spouse 2. The order assigns to Spouse 2 a portion of Participant's 401(k) benefits already assigned to Spouse 1. The second order does not fail to be treated as a QDRO solely because the second order is issued after the plan administrator has determined that an earlier order pertaining to Spouse 1 is a QDRO. The second order, however, would fail to be a QDRO under section 206(d)(3)(D)(iii) and paragraph (d)(1) of this section because it assigns all or a portion of Participant's benefits that are already assigned to Spouse 1 by the prior QDRO. Signed at Washington, DC, this 28th day of February, 2007. Bradford P. Campbell, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E7-3820 Filed 3-6-07; 8:45 am] BILLING CODE 4510-29-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0658; FRL-8116-9] Polymer of 2-Ethyl-2-(Hydroxymethyl)-1,3-Propanediol, Oxirane, Methyloxirane, 1,2-Epoxyalkanes; Tolerance Exemption AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes exemptions from the requirement of a tolerance for residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3-propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes; when used as inert ingredients in a pesticide chemical formulation. BASF Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996
(FQPA)requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3-propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes. DATES: This regulation is effective March 7, 2007. Objections and requests for hearings must be received on or before May 7, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0658. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Bipin Gandhi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-8380; e-mail address: *gandhi.bipin@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of This Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this “ **Federal Register** ” document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0658 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 7, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0658, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of December 20, 2006 (71 FR 76321) (FRL-8104-4), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 6E7079) by BASF Corporation, 100 Campus Drive, Florham Park, NJ 07932. The petition requested that 40 CFR 180.960 be amended by establishing exemptions from the requirement of a tolerance for residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3-propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes; CAS Reg. No. 903890-89-1 when 1,2-epoxyalkane is 1,2-epoxydodecane; CAS Reg. No. 903890-90-4 when 1,2-epoxyalkane is 1,2-epoxyhexadecane; and CAS Reg. No. 893427-80-0 when 1,2-epoxyalkane is 1,2-epoxyoctadecane. That notice included a summary of the petition prepared by the petitioner. There were no comments in response to the notice of filing. Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *” and specifies factors EPA is to consider in establishing an exemption. III. Inert Ingredient Definition Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients. IV. Risk Assessment and Statutory Findings EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established. Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d). 1. The polymers are not cationic polymers nor are they reasonably anticipated to become a cationic polymers in a natural aquatic environment. 2. The polymers do contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen. 3. The polymers do not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii). 4. The polymers are neither designed nor can they be reasonably anticipated to substantially degrade, decompose, or depolymerize. 5. The polymers are manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption. 6. The polymers are not water absorbing polymers with a number average molecular weight
(MW)greater than or equal to 10,000 daltons. Additionally, the polymers, also meet as required the following exemption criteria specified in 40 CFR 723.250(e). 7. The polymers' number average MW of 16,000 to 20,000 are greater than or equal to 10,000 daltons. The polymers contain less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000. Thus, the polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes meets all the criteria for a polymers to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes. V. Aggregate Exposures For the purposes of assessing potential exposure under this exemption, EPA considered that polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposures were possible. The number average MW of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes is in the range of 16,000 to 20,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes conforms to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health. VI. Cumulative Effects Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” EPA does not have, at this time, available data to determine whether polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes and any other substances and polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes do not appear to produce toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes have common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . VII. Additional Safety Factor for the Protection of Infants and Children Section 408 of the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary. VIII. Determination of Safety Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes. IX. Other Considerations A. Endocrine Disruptors There is no available evidence that polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes are endocrine disruptors. B. Analytical Enforcement Methodology An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. C. International Tolerances The Agency is not aware of any country requiring a tolerance for polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes nor have any CODEX Maximum Residue Levels
(MRLs)been established for any food crops at this time. X. Conclusion Accordingly, EPA finds that exempting residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes from the requirement of a tolerance will be safe. XI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Pub. L. 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). XII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: February 27, 2007. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 1 U.S.C. 321(q), 346a and 371. 2. In § 180.960 the table is amended by adding alphabetically polymers to read as follows: § 180.960 Polymers; exemptions from the requirement of a tolerance. Polymer CAS No. * * * * * Oxirane, decyl-, reaction products with polyethylene-polypropylene glycol ether with trimethylolpropane (3:1) 903890-89-1 Oxirane, hexadecyl-, reaction products with polyethylene-polypropylene glycol ether with trimethylolpropane (3:1) 893427-80-0 Oxirane, methyl-, polymer with oxirane, ether with 2-ethyl-2-(hydroxymethyl) - 1,3 - propanediol (3:1), reaction products with tetradecyloxirane 903890-90-4 * * * * * [FR Doc. E7-4083 Filed 3-6-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-2006-0755, EPA-HQ-SFUND-2006-0758, EPA-HQ-SFUND-2006-0760, EPA-HQ-SFUND-2006-0761, EPA-HQ-SFUND-2006-0762; FRL-8283-7] RIN 2050-AD75 National Priorities List, Final Rule AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the Agency”) in determining which sites warrant further investigation. These further investigations will allow EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule adds five sites to the General Superfund Section of the NPL. EFFECTIVE DATE: The effective date for this amendment to the NCP is April 6, 2007. ADDRESSES: For addresses for the Headquarters and Regional dockets, as well as further details on what these dockets contain, see section II, “Availability of Information to the Public” in the SUPPLEMENTARY INFORMATION portion of this preamble. FOR FURTHER INFORMATION CONTACT: Terry Jeng, phone
(703)603-8852, State, Tribal and Site Identification Branch; Assessment and Remediation Division; Office of Superfund Remediation and Technology Innovation (mail code 5204P); U.S. Environmental Protection Agency; 1200 Pennsylvania Avenue NW., Washington, DC 20460; or the Superfund Hotline, phone
(800)424-9346 or
(703)412-9810 in the Washington, DC, metropolitan area. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. What Are CERCLA and SARA? B. What Is the NCP? C. What Is the National Priorities List (NPL)? D. How Are Sites Listed on the NPL? E. What Happens to Sites on the NPL? F. Does the NPL Define the Boundaries of Sites? G. How Are Sites Removed From the NPL? H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up? I. What Is the Construction Completion List (CCL)? II. Availability of Information to the Public A. May I Review the Documents Relevant to This Final Rule? B. What Documents Are Available for Review at the Headquarters Docket? C. What Documents Are Available for Review at the Regional Dockets? D. How Do I Access the Documents? E. How May I Obtain a Current List of NPL Sites? III. Contents of This Final Rule A. Additions to the NPL B. What Did EPA Do With the Public Comments It Received? IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review 1. What Is Executive Order 12866? 2. Is This Final Rule Subject to Executive Order 12866 Review? B. Paperwork Reduction Act 1. What Is the Paperwork Reduction Act? 2. Does the Paperwork Reduction Act Apply to This Final Rule? C. Regulatory Flexibility Act 1. What Is the Regulatory Flexibility Act? 2. How Has EPA Complied With the Regulatory Flexibility Act? D. Unfunded Mandates Reform Act 1. What Is the Unfunded Mandates Reform Act (UMRA)? 2. Does UMRA Apply to This Final Rule? E. Executive Order 13132: Federalism What Is Executive Order 13132 and Is It Applicable to This Final Rule? F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments 1. What Is Executive Order 13175? 2. Does Executive Order 13175 Apply to This Final Rule? G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks 1. What Is Executive Order 13045? 2. Does Executive Order 13045 Apply to This Final Rule? H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Usage Is this Rule Subject to Executive Order 13211? I. National Technology Transfer and Advancement Act 1. What Is the National Technology Transfer and Advancement Act? 2. Does the National Technology Transfer and Advancement Act Apply to This Final Rule? J. Congressional Review Act 1. Has EPA Submitted This Rule to Congress and the General Accounting Office? 2. Could the Effective Date of This Final Rule Change? 3. What Could Cause a Change in the Effective Date of This Rule? I. Background A. What Are CERCLA and SARA? In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 *et seq.* B. What Is the NCP? To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666). As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)). C. What Is the National Priorities List (NPL)? The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken. For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities Section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing a Hazard Ranking System
(HRS)score and determining whether the facility is placed on the NPL. EPA's role is less extensive than at other sites. D. How Are Sites Listed on the NPL? There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP):
(1)A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), which EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutant or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL;
(2)Pursuant to 42 U.S.C 9605(a)(8)(B), each State may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each State as the greatest danger to public health, welfare, or the environment among known facilities in the State. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2);
(3)The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met: • The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release. • EPA determines that the release poses a significant threat to public health. • EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release. EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually. E. What Happens to Sites on the NPL? A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions * * *.” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws. F. Does the NPL Define the Boundaries of Sites? The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing. Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance release has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis. When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came. In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones company is responsible for the contamination located on the plant site. EPA regulations provide that the “nature and extent of the problem presented by the release” will be determined by a Remedial Investigation/Feasibility Study (RI/FS) as more information is developed on site contamination (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty. Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the Agency at any time after it receives notice it is a potentially responsible party. For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release. G. How Are Sites Removed From the NPL? EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:
(i)Responsible parties or other persons have implemented all appropriate response actions required;
(ii)All appropriate Superfund-financed response has been implemented and no further response action is required; or
(iii)The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate. H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up? In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and available for productive use. I. What Is the Construction Completion List (CCL)? EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance. Sites qualify for the CCL when:
(1)Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved;
(2)EPA has determined that the response action should be limited to measures that do not involve construction ( *e.g.* , institutional controls); or
(3)the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see EPA's Internet site at *http://www.epa.gov/superfund.* II. Availability of Information to the Public A. May I Review the Documents Relevant to This Final Rule? Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at EPA Headquarters and in the Regional offices. An electronic version of the public docket is available through *http://www.regulations.gov* (see table below for Docket Identification numbers). Although not all Docket materials may be available electronically, you may still access any of the publicly available Docket materials through the Docket facilities identified below in section II D. Site name City/state FDMS docket ID No. Elm Street Ground Water Contamination Terre Haute, IN EPA-HQ-SFUND-2006-0755 Sonford Products Flowood, MS EPA-HQ-SFUND-2006-0758 Bandera Road Ground Water Plume Leon Valley, TX EPA-HQ-SFUND-2006-0760 East 67th Street Ground Water Plume Odessa, TX EPA-HQ-SFUND-2006-0761 Lockheed West Seattle Seattle, WA EPA-HQ-SFUND-2006-0762 B. What Documents Are Available for Review at the Headquarters Docket? The Headquarters Docket for this rule contains, for each site, the HRS score sheets, the Documentation Record describing the information used to compute the score, pertinent information regarding statutory requirements or EPA listing policies that affect the site, and a list of documents referenced in the Documentation Record. For sites that received comments during the comment period, the Headquarters Docket also contains a Support Document that includes EPA's responses to comments. C. What Documents Are Available for Review at the Regional Dockets? The Regional Dockets contain all the information in the Headquarters Docket, plus the actual reference documents containing the data principally relied upon by EPA in calculating or evaluating the HRS score for the sites located in their Region. These reference documents are available only in the Regional Dockets. For sites that received comments during the comment period, the Regional Docket also contains a Support Document that includes EPA's responses to comments. D. How Do I Access the Documents? You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the Headquarters Docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. Please contact the Regional Dockets for hours. Following is the contact information for the EPA Headquarters: Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 3340, Washington, DC 20004, 202/566-1744. *The contact information for the Regional Dockets is as follows:* Joan Berggren, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, MA 02114-2023; 617/918-1417. Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4343. Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103; 215/814-5364. Debbie Jourdan, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW, 9th floor, Atlanta, GA 30303; 404/562-8862. Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Superfund Division SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/353-5821. Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436. Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th Street, Kansas City, KS 66101; 913/551-7335. Gwen Christiansen, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6463. Dawn Richmond, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/972-3097. Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail Stop ECL-115, Seattle, WA 98101; 206/553-2782. E. How May I Obtain a Current List of NPL Sites? You may obtain a current list of NPL sites via the Internet at *http://www.epa.gov/superfund/* (look under the Superfund sites category) or by contacting the Superfund Docket (see contact information above). III. Contents of This Final Rule A. Additions to the NPL This final rule adds the following five sites to the NPL, all to the General Superfund Section: State Site name City/county IN Elm Street Ground Water Contamination Terre Haute. MS Sonford Products Flowood. TX Bandera Road Ground Water Plume Leon Valley. TX East 67th Street Ground Water Plume Odessa. WA Lockheed West Seattle Seattle. B. What Did EPA Do With the Public Comments It Received? EPA reviewed all comments received on the sites in this rule and responses to comments are below. EPA received comments from the Mayor of Leon Valley, Texas on behalf of the City Council. The comment letter included a Leon Valley City Council resolution requesting that the Bandera Road Ground Water Plume be added to the NPL in order to remediate the community's water contamination. For the reasons set forth in the Administrative Record for the site, EPA is adding this site to the NPL. For the remainder of sites in this rule, EPA received no comments, therefore, EPA is placing them on the NPL at this time. All comments that were received by EPA are contained in the Headquarters Docket and are also listed in EPA's electronic public Docket and comment system at *http://www.regulations.gov* . IV. Statutory and Executive Order Reviews A. Executive Order 12866: *Regulatory Planning and Review* 1. What Is Executive Order 12866? Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget
(OMB)review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. 2. Is This Final Rule Subject to Executive Order 12866 Review? No. The listing of sites on the NPL does not impose any obligations on any entities. The listing does not set standards or a regulatory regime and imposes no liability or costs. Any liability under CERCLA exists irrespective of whether a site is listed. It has been determined that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. B. Paperwork Reduction Act 1. What Is the Paperwork Reduction Act? According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9. 2. Does the Paperwork Reduction Act Apply to This Final Rule? This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act 1. What Is the Regulatory Flexibility Act? Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. 2. How Has EPA Complied With the Regulatory Flexibility Act? This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking. Thus, this rule does not impose any requirements on any small entities. For the foregoing reasons, I certify that this rule will not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act 1. What Is the Unfunded Mandates Reform Act (UMRA)? Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before EPA promulgates a rule where a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. 2. Does UMRA Apply to This Final Rule? No, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or by the private sector in any one year. This rule will not impose any federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL. For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act. E. Executive Order 13132: *Federalism* What Is Executive Order 13132 and Is It Applicable to This Final Rule? Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments 1. What Is Executive Order 13175? Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” 2. Does Executive Order 13175 Apply to This Final Rule? This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks 1. What Is Executive Order 13045? *Executive Order 13045:* “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. 2. Does Executive Order 13045 Apply to This Final Rule? This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this section present a disproportionate risk to children. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Usage Is This Rule Subject to Executive Order 13211? This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. I. National Technology Transfer and Advancement Act 1. What Is the National Technology Transfer and Advancement Act? Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. 2. Does the National Technology Transfer and Advancement Act Apply to This Final Rule? No. This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Congressional Review Act 1. Has EPA Submitted This Rule to Congress and the General Accounting Office? The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, that includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA has submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A “major rule” cannot take effect until 60 days after it is published in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). 2. Could the Effective Date of This Final Rule Change? Provisions of the Congressional Review Act
(CRA)or section 305 of CERCLA may alter the effective date of this regulation. Under the CRA, 5 U.S.C. 801(a), before a rule can take effect the federal agency promulgating the rule must submit a report to each House of the Congress and to the Comptroller General. This report must contain a copy of the rule, a concise general statement relating to the rule (including whether it is a major rule), a copy of the cost-benefit analysis of the rule (if any), the agency's actions relevant to provisions of the Regulatory Flexibility Act (affecting small businesses) and the Unfunded Mandates Reform Act of 1995 (describing unfunded federal requirements imposed on state and local governments and the private sector), and any other relevant information or requirements and any relevant Executive Orders. EPA has submitted a report under the CRA for this rule. The rule will take effect, as provided by law, within 30 days of publication of this document, since it is not a major rule. Section 804(2) defines a major rule as any rule that the Administrator of the Office of Information and Regulatory Affairs
(OIRA)of the Office of Management and Budget
(OMB)finds has resulted in or is likely to result in: an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. NPL listing is not a major rule because, as explained above, the listing, itself, imposes no monetary costs on any person. It establishes no enforceable duties, does not establish that EPA necessarily will undertake remedial action, nor does it require any action by any party or determine its liability for site response costs. Costs that arise out of site responses result from site-by-site decisions about what actions to take, not directly from the act of listing itself. Section 801(a)(3) provides for a delay in the effective date of major rules after this report is submitted. 3. What Could Cause a Change in the Effective Date of This Rule? Under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although *INS* v. *Chadha* , 462 U.S. 919,103 S. Ct. 2764
(1983)and *Bd. of Regents of the University of Washington* v. *EPA* , 86 F.3d 1214,1222 (D.C. Cir. 1996) cast the validity of the legislative veto into question, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives. If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, EPA will publish a document of clarification in the **Federal Register** . List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Dated: February 27, 2007. Susan Parker Bodine, Assistant Administrator, Office of Solid Waste and Emergency Response. 40 CFR part 300 is amended as follows: PART 300—[AMENDED] 1. The authority citation for part 300 continues to read as follows: Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193. 2. Table 1 of Appendix B to part 300 is amended by adding the following sites in alphabetical order to read as follows: Appendix B to Part 300—National Priorities List Table 1.—General Superfund Section State Site name City/county Notes
(a)* * * * * * * IN Elm Street Ground Water Contamination Terre Haute * * * * * * * MS Sonford Products Flowood * * * * * * * TX Bandera Road Ground Water Plume Leon Valley * * * * * * * TX East 67th Street Ground Water Plume Odessa * * * * * * * WA Lockheed West Seattle Seattle * * * * * * *
(a)A = Based on issuance of health advisory by Agency for Toxic Substance and Disease Registry (HRS score need not be ≥ 28.50). C = Sites on Construction Completion list. S = State top priority (HRS score need not be ≥ 28.50) P = Sites with partial deletion(s). [FR Doc. E7-3908 Filed 3-6-07; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-35 [FMR Amendment 2007-01; FMR Case 2004-102-1; Docket 2007-001; Sequence 3] RIN 3090-AH93 Federal Management Regulation; FMR Case 2004-102-1, Disposition of Personal Property AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: The General Services Administration is amending the Federal Management Regulation
(FMR)by revising coverage on personal property and moving it into subchapter B of the FMR. This final rule adds a new part to subchapter B of the FMR to provide an overview of the property disposal regulation and provide definitions for terms found in the FMR parts. DATES: *Effective Date:* April 6, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Robert Holcombe, Office of Governmentwide Policy, Personal Property Management Policy, at
(202)501-3828, or e-mail at *robert.holcombe@gsa.gov* for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405,
(202)501-4755. Please cite FMR Amendment 2007-01, FMR Case 2004-102-1. SUPPLEMENTARY INFORMATION: A. Background A proposed rule was published in the **Federal Register** on September 12, 2006 (71 FR 53646) soliciting comments on proposed changes to 41 CFR part 102-35. The due date for comments was extended in a **Federal Register** proposed rule document on October 18, 2006 (71 FR 61445). Comments were received from three respondents relating to the sale of personal property. These comments do not directly address any provisions contained in this final rule, and will be held for consideration when the regulation covering the sale of Federal personal property assets, Federal Management Regulation
(FMR)part 102-38, is released for comment. FMR part 102-38 is currently being reviewed within GSA for revisions. This final rule adds a new part, 102-35, to subchapter B of the FMR to provide an overview of the property disposal regulation and to provide definitions for terms found in FMR parts 102-36 through 102-42 (41 CFR 102-36 through 102-42). This part serves as a summary and overview of the policies relating to the disposal of Federal personal property and provides overall guidance for all methods of property disposal. This part emphasizes the use of excess property from other agencies as the first source of supply, and establishes the preference to transfer excess property to Federal agencies for their own use before transferring that property to agencies for use by non-Federal entities. B. Executive Order 12866 This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order. C. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for notice and comment as per the exemption specified in 5 U.S.C. 553(a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget
(OMB)under 44 U.S.C. 3501 *et seq.* E. Small Business Regulatory Enforcement Fairness Act This final rule is exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 102-35 Government employees, Personal property. Dated: February 7, 2007. Lurita Doan, Administrator of General Services. For the reasons set forth in the preamble, GSA amends 41 CFR chapter 102 as follows: Chapter 102—Federal Management Regulation 1. Part 102-35 is added to subchapter B of chapter 102 to read as follows: PART 102-35—DISPOSITION OF PERSONAL PROPERTY Sec. 102-35.5 What is the scope of the General Services Administration's regulations on the disposal of personal property? 102-35.10 How are these regulations for the disposal of personal property organized? 102-35.15 What are the goals of GSA's personal property regulations? 102-35.20 What definitions apply to GSA's personal property regulations? 102-35.25 What management reports must we provide? 102-35.30 What actions must I take or am I authorized to take regardless of the property disposition method? Authority: 40 U.S.C. 121(c). § 102-35.5 What is the scope of the General Services Administration's regulations on the disposal of personal property? The General Services Administration's personal property disposal regulations are contained in this part and in parts 102-36 through 102-42 of this subchapter B as well as in parts 101-42 and 101-45 of the Federal Property Management Regulations (FPMR)(41 CFR parts 101-42 and 101-45). With two exceptions, these regulations cover the disposal of personal property under the custody and control of executive agencies located in the United States, the U.S. Virgin Islands, American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, the Federated States of Micronesia, the Marshall Islands, and Palau. The exceptions to this coverage are part 102-39 of this subchapter B, which applies to the replacement of all property owned by executive agencies worldwide using the exchange/sale authority, and §§ 102-36.380 through 102-36.400, which apply to the disposal of excess property located in countries and areas not listed in this subpart, i.e., foreign excess personal property. The legislative and judicial branches are encouraged to follow these provisions for property in their custody and control. § 102-35.10 How are these regulations for the disposal of personal property organized? The General Services Administration
(GSA)has divided its regulations for the disposal of personal property into the following program areas:
(a)Disposition of excess personal property (part 102-36 of this subchapter B).
(b)Donation of surplus personal property (part 102-37 of this subchapter B).
(c)Sale of surplus personal property (part 102-38 of this subchapter B).
(d)Replacement of personal property pursuant to the exchange/sale authority (part 102-39 of this subchapter B).
(e)Disposition of seized and forfeited, voluntarily abandoned, and unclaimed personal property (part 102-41 of this subchapter B).
(f)Utilization, donation, and disposal of foreign gifts and decorations (part 102-42 of this subchapter B).
(g)Utilization and disposal of hazardous materials and certain categories of property (part 101-42 of the Federal Property Management Regulations (FPMR), 41 CFR part 101-42). § 102-35.15 What are the goals of GSA's personal property regulations? The goals of GSA's personal property regulations are to:
(a)Improve the identification and reporting of excess personal property;
(b)Maximize the use of excess property as the first source of supply to minimize expenditures for the purchase of new property, when practicable; **Note to § 102-35.15(b):** If there are competing requests among Federal agencies for excess property, preference will be given to agencies where the transfer will avoid a new Federal procurement. A transfer to an agency where the agency will provide the property to a non-Federal entity for the non-Federal entity's use will be secondary to Federal use.
(c)Achieve maximum public benefit from the use of Government property through the donation of surplus personal property to State and local public agencies and other eligible non-Federal recipients;
(d)Obtain the optimum monetary return to the Government for surplus personal property sold and personal property sold under the exchange/sale authority; and
(e)Reduce management and inventory costs by appropriate use of the abandonment/destruction authority to dispose of unneeded personal property that has no commercial value or for which the estimated cost of continued care and handling would exceed the estimated sales proceeds (see FMR §§ 102-36.305 through 102-36.330). § 102-35.20 What definitions apply to GSA's personal property regulations? The following are definitions of, or cross-references to, some key terms that apply to GSA's personal property regulations in the FMR (CFR Parts 102-36 through 102-42). Other personal property terms are defined in the sections or parts to which they primarily apply. *Accountable Personal Property* includes nonexpendable personal property whose expected useful life is two years or longer and whose acquisition value, as determined by the agency, warrants tracking in the agency's property records, including capitalized and sensitive personal property. *Accountability* means the ability to account for personal property by providing a complete audit trail for property transactions from receipt to final disposition. *Acquisition cost* means the original purchase price of an item. *Capitalized Personal Property* includes property that is entered on the agency's general ledger records as a major investment or asset. An agency must determine its capitalization thresholds as discussed in Financial Accounting Standard Advisory Board (FASAB) Statement of Federal Financial Accounting Standards No. 6 Accounting for Property, Plant and Equipment, Chapter 1, paragraph 13. *Control* means the ongoing function of maintaining physical oversight and surveillance of personal property throughout its complete life cycle using various property management tools and techniques taking into account the environment in which the property is located and its vulnerability to theft, waste, fraud, or abuse. *Excess personal property* (see § 102-36.40 of this subchapter B). *Exchange/sale* (see § 102-39.20 of this subchapter B). *Executive agency* (see § 102-36.40 of this subchapter B). *Federal agency* (see § 102-36.40 of this subchapter B). *Foreign gifts and decorations* (for the definition of relevant terms, see § 102-42.10 of this subchapter B). *Forfeited property* (see § 102-41.20 of this subchapter B). *Inventory* includes a formal listing of all accountable property items assigned to an agency, along with a formal process to verify the condition, location, and quantity of such items. This term may also be used as a verb to indicate the actions leading to the development of a listing. In this sense, an inventory must be conducted using an actual physical count, electronic means, and/or statistical methods. *National property management officer* means an official, designated in accordance with § 102-36.45(b) of this subchapter B, who is responsible for ensuring effective acquisition, use, and disposal of excess property within your agency. *Personal property* (see § 102-36.40 of this subchapter B). *Property management* means the system of acquiring, maintaining, using and disposing of the personal property of an organization or entity. *Seized property* means personal property that has been confiscated by a Federal agency, and whose care and handling will be the responsibility of that agency until final ownership is determined by the judicial process. *Sensitive Personal Property* includes all items, regardless of value, that require special control and accountability due to unusual rates of loss, theft or misuse, or due to national security or export control considerations. Such property includes weapons, ammunition, explosives, information technology equipment with memory capability, cameras, and communications equipment. These classifications do not preclude agencies from specifying additional personal property classifications to effectively manage their programs. *Surplus personal property* (see § 102-37.25 of this subchapter B). *Utilization* means the identification, reporting, and transfer of excess personal property among Federal agencies. § 102-35.25 What management reports must we provide?
(a)There are three reports that must be provided. The report summarizing the property provided to non-Federal recipients and the report summarizing exchange/sale transactions (see §§ 102-36.295 and 102-39.75 respectively of this subchapter B) must be provided every year (negative reports are required). In addition, if you conduct negotiated sales of surplus personal property valued over $5,000 in any year, you must report this transaction in accordance with § 102-38.115 (negative reports are not required for this report).
(b)The General Services Administration
(GSA)may request other reports as authorized by 40 U.S.C. 506(a)(1)(A). § 102-35.30 What actions must I take or am I authorized to take regardless of the property disposition method? Regardless of the disposition method used:
(a)You must maintain property in a safe, secure, and cost-effective manner until final disposition.
(b)You have authority to use the abandonment/ destruction provisions at any stage of the disposal process (see §§ 102-36.305 through 102-36.330 and § 102-38.70 of this subchapter B).
(c)You must implement policies and procedures to remove sensitive or classified information from property prior to disposal. Agency-affixed markings should be removed, if at all possible, prior to personal property permanently leaving your agency's control.
(d)Government-owned personal property may only be used as authorized by your agency. Title to Government-owned personal property cannot be transferred to a non-Federal entity unless through official procedures specifically authorized by law. [FR Doc. E7-3958 Filed 3-6-07; 8:45 am] BILLING CODE 6820-14-S DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 211 [Docket No. 2006-24141, Notice No. 2] RIN 2130-AB77 Rules of Practice: Direct Final Rulemaking Procedures AGENCY: Federal Railroad Administration (FRA), DOT. ACTION: Final rule. SUMMARY: In October 2006, FRA proposed to amend its rules of practice by adopting direct final rulemaking procedures intended to expedite the publication of routine or noncontroversial changes. FRA received no comments to this proposal, and in this rule adopts its proposed direct final rulemaking procedures without change. DATES: This rule is effective on April 6, 2007. FOR FURTHER INFORMATION CONTACT: Patricia V. Sun, Trial Attorney, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20005 ( *telephone:*
(202)493-6038). SUPPLEMENTARY INFORMATION: Background On October 11, 2006, FRA proposed to amend its Rules of Practice (49 CFR Part 211) to adopt direct final rulemaking procedures which would expedite its rulemaking process for noncontroversial regulatory changes to which no adverse comment was anticipated (71 FR 59698). The proposed direct final rulemaking procedures, closely modeled upon those of the Office of the Secretary of Transportation
(OST)(January 30, 2004, 69 FR 4455), would allow FRA to reduce the time necessary to develop, review, clear and publish routine rules to which no adverse public comment was anticipated by eliminating the requirement to publish separate proposed and final rules. FRA received no comments to the proposal, and in this rule adopts its proposed direct final rulemaking procedures without change. Other agencies, such as the Nuclear Regulatory Commission, the Food and Drug Administration, the Environmental Protection Agency, the Department of Agriculture, and the Department of Energy
(DOE)have adopted and successfully used direct final rulemaking procedures for routine changes. The DOE, for example, amended its test procedures for measuring the energy consumption of clothes washers through a direct final rule (October 31, 2003, 68 FR 62197). The Direct Final Rulemaking Process As mentioned above, proceeding through a direct final rulemaking enables FRA to eliminate an unnecessary second round of internal review and clearance, as well as public review, for noncontroversial proposed rules. As proposed, FRA may use direct final rulemaking for noncontroversial rules, including those that:
(1)Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,
(2)Are nonsubstantive clarifications or corrections to existing rules;
(3)Update existing forms; and
(4)Make minor changes in substantive rules regarding statistics and reporting requirements, such as a lessening of the reporting frequency (for example, from monthly to quarterly) or elimination of a type of data that FRA no longer needs to collect. FRA may also use direct final rulemaking process for a particular rule if similar rules had been previously proposed and published without adverse comment. If FRA determines that a rule is appropriate for direct final rulemaking, FRA will publish the rule in the final rule section of the **Federal Register** . In a direct final rule document, the “action” will be captioned “direct final rule” and will include language in the summary and preamble informing interested parties of their right to comment and their right to request an oral hearing, if such opportunity is required. The direct final rule notice will advise the public that FRA anticipates no adverse comment to the rule and that the rule will become effective a specified number of days after the date of publication unless FRA receives written adverse comment or a request for an oral hearing (if such opportunity is required by statute) within the specified comment period. An “adverse” comment is one that is critical of the rule, suggests that the rule should not be adopted, or suggests that a change should be made in the rule. FRA will not consider a comment submitted in support of the rule, or a request for clarification of the rule, to be adverse. FRA will provide sufficient comment time to allow interested parties to determine whether they wish or need to submit adverse comments, and will answer any requests for clarification while the comment period is running. If FRA receives no written adverse comment or request for oral hearing within the comment period, FRA will publish another notice in the **Federal Register** indicating that no adverse comment has been received and confirming that the rule will become effective on the specified date. If, however, FRA receives the timely submission of an adverse comment or notice of intent to submit adverse comment, FRA will stop the direct final rulemaking process and withdraw the direct final rule by publishing a notice in the final rule section of the **Federal Register** . If FRA decides that the rulemaking remains necessary, FRA will recommence the rulemaking under its standard rulemaking procedures by publishing a notice proposing the rule in the proposed rules section of the **Federal Register** . The proposed rule will provide for a new public comment period. The additional time and effort required to withdraw the direct final rule and issue a Notice of Proposed Rulemaking will be an incentive for FRA to act conservatively in evaluating whether to use the direct final rulemaking process for a particular rule. FRA will not use direct final rulemaking for complex or potentially controversial matters. Regulatory Analyses and Notices FRA has determined that this action is not a significant regulatory action under Executive Order 12866 or under the Department's Regulatory Policies and Procedures. There are no costs associated with the proposed rule. There will be some cost savings in **Federal Register** publication costs and efficiencies for the public and FRA personnel in eliminating duplicative reviews. FRA certifies that this rule will not have a significant impact on a substantial number of small entities. FRA does not believe there are sufficient federalism implications to warrant the preparation of a federalism assessment. Because this rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”) do not apply. Paperwork Reduction Act This rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Unfunded Mandates Reform Act of 1995 FRA has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking. List of Subjects in 49 CFR Part 211 Administrative practice and procedure, Rules of practice. In consideration of the foregoing, FRA amends 49 CFR part 211 as follows: PART 211—[AMENDED] 1. The authority citation for part 211 is amended to read as follows: Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 CFR 1.49. 2. In part 211, subpart B—Rulemaking Procedures, is amended by adding a new section 211.33, Direct final rulemaking procedures, as follows: § 211.33 Direct final rulemaking procedures.
(a)Rules that the Administrator judges to be noncontroversial and unlikely to result in adverse public comment may be published in the final rule section of the **Federal Register** as direct final rules. These include noncontroversial rules that:
(1)Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,
(2)Are nonsubstantive clarifications or corrections to existing rules,
(3)Update existing forms, and
(4)Make minor changes in the substantive rules regarding statistics and reporting requirements.
(b)The **Federal Register** document will state that any adverse comment or notice of intent to submit adverse comment must be received in writing by the Federal Railroad Administration within the specified time after the date of publication and that, if no written adverse comment or request for oral hearing (if such opportunity is required by statute) is received, the rule will become effective a specified number of days after the date of publication.
(c)If no adverse comment or request for oral hearing is received by the Federal Railroad Administration within the specified time of publication in the **Federal Register** , the Federal Railroad Administration will publish a notice in the **Federal Register** indicating that no adverse comment was received and confirming that the rule will become effective on the date that was indicated in the direct final rule.
(d)If the Federal Railroad Administration receives any written adverse comment or request for oral hearing within the specified time of publication in the **Federal Register** , a notice withdrawing the direct final rule will be published in the final rule section of the **Federal Register** and, if the Federal Railroad Administration decides a rulemaking is warranted, a notice of proposed rulemaking will be published in the proposed rule section of the **Federal Register** .
(e)An “adverse” comment for the purpose of this subpart means any comment that the Federal Railroad Administration determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule. Issued in Washington, DC, on February 27, 2007. Joseph H. Boardman, Administrator. [FR Doc. E7-3923 Filed 3-6-07; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 060425111-6315-03;I.D. 041906B] RIN 0648-AN09 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Vessel Monitoring Systems; Amendment 18A AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; delay of effective date. SUMMARY: NMFS further delays the December 7, 2006, effective date of two sections of a final rule, published August 9, 2006, until May 6, 2007. The amendments to those sections will require owners/operators of vessels with Gulf reef fish commercial vessel permits to install a NMFS-approved vessel monitoring system
(VMS)and will make installation of VMS a prerequisite for permit renewal or transfer. This delay of the effective date will provide additional time for resolution of an unanticipated technological problem with one of the approved VMS units purchased by significant portion of the fleet and will allow vendors additional time to meet the demand for purchase and installation of VMS units that are currently backlogged. DATES: The effective date of §§ 622.9(a)(2) and 622.4(m)(1) published August 9, 2006 (71 FR 45428), is delayed until May 6, 2007. ADDRESSES: Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements referred to in this final rule may be submitted in writing to Jason Rueter, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-5308; email *Jason.Rueter@noaa.gov* and to David Rostker, Office of Management and Budget (OMB), by e-mail at *David_Rostker@omb.eop.gov* , or by fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305, fax 727-824-5308, e-mail *Peter.Hood@noaa.gov* . SUPPLEMENTARY INFORMATION: Background The final rule to implement Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) (71 FR 45428, August 9, 2006) included a provision, § 622.9(a)(2), requiring owners or operators of a vessel with a commercial vessel permit for Gulf reef fish, including charter/headboats with commercial reef fish vessel permits even when under charter, to be equipped with an operating VMS approved by NMFS for the Gulf of Mexico reef fish fishery. Additionally, § 622.4(m)(1) required proof of purchase, installation, activation, and operational status of an approved VMS for renewal or transfer of a commercial vessel permit for Gulf reef fish. Subsequent to the publication of the final rule, NMFS published a notice listing VMS approved by NMFS for use in the Gulf reef fish fishery (71 FR 54472, September 15, 2006). On October 31, 2006, NMFS published a notice (71 FR 63753), announcing availability of grant funds to reimburse owners and operators of vessels subject to the VMS requirements of Amendment 18A for the equivalent cost of purchasing the least expensive VMS approved by NMFS for the Gulf reef fish fishery. On December 6, 2006, because of concerns that fishers would not have sufficient time to comply with the VMS requirements, NMFS published a notice (71 FR 70680) to delay the effective date of § 622.9(a)(2), the VMS requirement, and § 622.4(m)(1), the provision requiring VMS as a condition of renewing or transferring a commercial vessel permit for Gulf reef fish. Further Delay of Effective Date NMFS is further delaying, until May 6, 2007, the effective date of § 622.9(a)(2), the VMS requirement, and § 622.4(m)(1), the provision requiring VMS as a condition of renewing or transferring a commercial vessel permit for Gulf reef fish. NMFS recently learned, and has confirmed with the VMS vendor, that there is a technological problem with one of the approved VMS units that has been purchased by a significant portion of the commercial reef fish fleet. This VMS unit, as currently configured, has an excessive power draw. When the vessel is not under power or does not have access to an external power source for longer than about 48 hours, the power draw from this VMS unit can drain all battery power, resulting in failure of electronic equipment including such safety equipment as bilge pumps. The vendor is working with vessel owners to resolve this issue through a reconfiguration of the VMS installation. NMFS has determined that a 60-day delay in implementation of the VMS requirements should be sufficient to resolve this issue. NMFS has also confirmed that providers of approved VMS units have a substantial backlog of orders for approved VMS units. It would not be possible for all affected fishers to acquire, install, and activate the required VMS units prior to the current March 7, 2007 deadline. Therefore, for these reasons, NMFS is delaying the effective date of §§ 622.9(a)(2) and 622.4(m)(1) until May 6, 2007. Classification The Administrator, Southeast Region, NMFS,
(RA)has determined that delaying the effective date of VMS requirements for vessels with commercial vessel permits for Gulf reef fish is necessary for management of the fishery and to minimize adverse social and economic impacts. The RA has also determined that this rule 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. Pursuant to 5 U.S.C. 533(b)(B), there is good cause to waive prior notice and opportunity for public comment on this action as notice and comment would be impracticable and contrary to the public interest. This final rule merely delays the effective date of the VMS requirements and VMS-related permit renewal requirements set forth in the regulations implementing Amendment 18A. Delaying the effective date of these provisions will provide VMS vendors time to resolve a technological problem with one of the approved VMS units that could potentially affect vessel safety. The delay would also provide vendors additional time to meet the demand for delivery and installation of approved units, which NMFS has confirmed is currently backlogged. For these reasons, there is good cause to waive the 30-day delayed effectiveness provision of the APA for these measures pursuant to 5 U.S.C. 553(d)(3). Failure to waive prior notice and opportunity for public comment or failure to waive the 30-day delayed effectiveness provision of the APA for these measures would result in these measures becoming effective on March 7, 2007, rather than providing the additional time necessary to resolve these unanticipated issues. This final rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment. This rule refers to collection-of-information requirements subject to the Paperwork Reduction Act
(PRA)and which have been approved by OMB under Control Number 0648-0544. Public reporting for these requirements is estimated to average 4 hours for VMS installation, 15 minutes for completion and submission of certification of VMS installation and activation, 24 seconds for transmission of position reports, 2 hours for annual maintenance of VMS, 10 minutes for submission of requests for power-down exemptions, and 15 minutes for annual renewal of all permits. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing burden hours, to NMFS (see ADDRESSES ) and by email to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. Authority: 16 U.S.C. 1801 *et seq.* Dated: February 28, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 07-1013 Filed 3-1-07; 3:27 pm]
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  • 2 CFR 601
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  • Pub. L. 103-355
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  • 355 F.3d 179
  • 768 F.2d 1355
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  • Pub. L. 104-4
  • Pub. L. 105-277
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  • Pub. L. 108-441
  • 22 CFR 514
  • 109 Stat. 48
  • Pub. L. 104-121
  • Pub. L. 104-208
  • 110 Stat. 3546
  • Pub. L. 103-416
  • 8 USC 1194(l)
  • Pub. L. 104-416
  • Pub. L. 109-277
  • 120 Stat. 192
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  • 28 CFR 12
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