Unknown. Final rule

53,146 words·~242 min read·/register/2007/03/15/07-1215

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-2007-03-15.xml --- 72 50 Thursday, March 15, 2007 Contents Agricultural Agricultural Marketing Service RULES Nectarines and peaches grown in California, 12038-12040 E7-4662 Agricultural Agricultural Research Service NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive: Caribbean Dairy Institute, Inc., 12164 E7-4709 Agriculture Agriculture Department See Agricultural Marketing Service See Agricultural Research Service Antitrust Antitrust Division NOTICES National cooperative research notifications:

Mobile Enterprise Alliance, Inc., 12198 07-1197 National Center for Manufacturing Sciences, Inc., 12198-12199 07-1198 Open DeviceNet Vendor Association, Inc., 12199 07-1199 Semiconductor Test Consortium, Inc., 12199-12200 07-1200 Army Army Department PROPOSED RULES Law enforcement and criminal investigations: Law enforcement reporting, 12140-12152 E7-4513 Centers Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panels, E7-4743 12177-12178 E7-4744 E7-4745 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 12164-12166 E7-4705 E7-4706 E7-4708 Customs Customs and Border Protection Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 12180-12181 E7-4764 E7-4766 Automation program test:

Automated commercial environment— Truck manifest information submission; truck carriers use of third-party, 12181-12182 E7-4773 Defense Defense Department See Army Department NOTICES Environmental statements; availability, etc.: White Sands Missile Range, NM; increased testing activities, 12167-12168 07-1214 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission NOTICES Meetings: Environmental Management Site-Specific Advisory Board— Chairs, 12168 E7-4757 Methane Hydrate Advisory Committee, 12168-12169 E7-4756 Energy Energy Efficiency and Renewable Energy Office RULES Alternative Fuel Transportation Program:

Replacement fuel goal; modification, 12041-12060 E7-4324 NOTICES Agency information collection activities; proposals, submissions, and approvals, 12169 E7-4755 EPA Environmental Protection Agency PROPOSED RULES Grants; State and local assistance: Clean Water Act Section 106 grants; permit fee incentive; allotment formula, 12152-12153 E7-4777 NOTICES Air pollution control: Citizen suits; proposed settlements— Sierra Club, 12174-12175 E7-4778 Water pollution control: Clean Water Act— California; water quality limited segments; list decisions, 12175-12176 E7-4663 FAA Federal Aviation Administration RULES Air carrier certification and operations:

National air tour safety standards— Drug and alcohol testing requirements; technical amendment, 12082-12085 E7-4583 Airworthiness directives: Airbus, 12071-12080 E7-4380 E7-4382 E7-4535 Boeing, 12068-12070 E7-4540 EADS SOCATA, 12075-12077 E7-4383 PZL Bielsko, 12064-12065 E7-4541 Raytheon, 12066-12068 E7-4523 Rolls-Royce plc, 12060-12064 E7-4536 Class E airspace, 12080-12081 07-1215 Restricted areas, 12081-12082 E7-4683 PROPOSED RULES Airworthiness directives: Airbus, 12127-12131 E7-4741 Air Tractor, Inc., 12131-12133 E7-4737 Boeing, 12125-12140 E7-4738 E7-4742 British Aerospace, 12133-12135 E7-4739 NOTICES Aeronautical land-use assurance; waivers:

Rickenbacker International Airport, OH, 12248 07-1204 Agency information collection activities; proposals, submissions, and approvals, 12248-12249 07-1205 07-1206 FDIC Federal Deposit Insurance Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 12176-12177 E7-4678 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 12177 07-1284 Federal Energy Federal Energy Regulatory Commission RULES Electric utilities (Federal Power Act):

Transmission service; undue discrimination and preference prevention, 12266-12531 E7-3636 NOTICES Complaints filed: Dakota Wind Harvest, LLC, et al., 12170-12171 E7-4714 Environmental statements; availability, etc.: Alabama Power Co., 12171 E7-4718 Hydroelectric applications, 12171-12173 E7-4716 E7-4717 Meetings: Review of market monitoring policies; technical conference, 12173-12174 E7-4713 Senior Executive Service Performance Review Board; membership, 12174 E7-4715 *Applications, hearings, determinations, etc.:* Columbia Gas Transmission Corp., 12169-12170 E7-4719 Transcontinental Gas Pipe Line Corp., 12170 E7-4720 Federal Highway Federal Highway Administration NOTICES Environmental statements; notice of intent:

Indiana and Lawrence Counties, IL, 12249-12250 E7-4725 Federal Railroad Federal Railroad Administration NOTICES Environmental statements; availability, etc.: California High Speed Train System from Los Angeles to Orange County, CA, 12250-12252 E7-4710 California High Speed Train System from Palmdale to Los Angeles, CA, 12252-12254 E7-4711 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 12177 E7-4793 Federal Transit Federal Transit Administration NOTICES Environmental statements; notice of intent:

Honolulu, HI; Leeward Corridor transit improvements; scoping meetings, 12254-12257 07-1237 Fish Fish and Wildlife Service NOTICES Endangered and threatened species permit applications, 12182-12183 E7-4763 Endangered species and marine mammal permit applications, 12183-12184 E7-4761 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 12178-12179 E7-4685 Medical devices: Premarket approval applications list; safety and effectiveness summaries availability, 12179 E7-4677 Geological Geological Survey NOTICES Grants and cooperative agreements; availability, etc.:

FY 2007 funding agreements with self-governance tribes; programs eligible; list, 12184-12185 07-1211 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration Homeland Homeland Security Department See Customs and Border Protection Bureau NOTICES Meetings: National Security Telecommunications Advisory Committee, 12179-12180 07-1217 Housing Housing and Urban Development Department RULES Community development block grants:

Insular Areas Program; timeliness expenditure standards, 12534-12537 E7-4681 Freedom of Information Act: Public access to HUD records; revisions, 12540-12543 E7-4682 Interior Interior Department See Fish and Wildlife Service See Geological Survey See Land Management Bureau See Minerals Management Service See National Park Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 12262-12264 E7-4699 E7-4700 Committees; establishment, renewal, termination, etc.:

Electronic Tax Administration Advisory Committee, 12264 E7-4698 International International Trade Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 12166 E7-4707 Justice Justice Department See Antitrust Division See Prisons Bureau NOTICES Pollution control; consent judgments: E.I. Du Pont de Nemours & Co., Inc., 12195 07-1203 Privacy Act; systems of records, E7-4776 E7-4779 12195-12198 E7-4782 Labor Labor Department See Mine Safety and Health Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Environmental statements; availability, etc.:

Devers-Palo Verde No. 2 Transmission Line Project, CA, 12185 E7-4759 Meetings: Resource Advisory Councils— John Day/Snake, 12185 E7-4673 Oil and gas leases: Wyoming, 12186 E7-4689 Public land orders: Alaska, 12186 E7-4688 Recreation management restrictions, etc.: Sand Mountain Recreation Area, NV; motorized travel restrictions, 12187 E7-4687 South Fork of the Snake River, ID; seasonal closure, 12187-12188 E7-4690 Maritime Maritime Administration NOTICES Environmental statements; availability, etc.:

Cabrillo Port Liquefied Natural Gas Deepwater Port license application, CA; public hearing, 12257-12259 E7-4767 Minerals Minerals Management Service RULES Outer Continental Shelf; oil, gas, and sulphur operations: New and reaffirmed documents incorporated by reference, 12088-12096 E7-4440 Mine Mine Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 12200 E7-4723 National Highway National Highway Traffic Safety Administration PROPOSED RULES Fuel economy standards:

Passenger cars, 2007-2017 model years, and light trucks, 2010-2017 model years; CAFE product plan information request Correction, 12153 E7-4765 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Fishery conservation and management: Atlantic highly migratory species— Atlantic billfish, 12154-12158 07-1216 Northeastern United States fisheries— Summer flounder, scup, and black sea bass, 12158-12163 E7-4780 NOTICES Meetings: New England Fishery Management Council, 12166-12167 E7-4703 E7-4704 National Park National Park Service NOTICES Native American human remains, funerary objects; inventory, repatriation, etc.:

Cosumnes River College, Sacramento, CA, 12188-12189 E7-4731 Forest Service, Tongass National Forest, Juneau, AK, 12189 E7-4730 National Park Service, Fort Union National Monument, Watrous, NM, 12189-12190 E7-4728 Peabody Museum of Archaeology and Ethnology, Harvard University, MA, 12190-12191 E7-4727 Thomas Burke Memorial Washington State Museum, University of Washington, WA, 12191-12192 E7-4732 University of Colorado Museum, Boulder, CO, 12192-12193 E7-4733 University of Kansas, Lawrence, KS, 12193 E7-4726 National Telecommunications National Telecommunications and Information Administration RULES Digital-to-analog converter boxes; coupon program; implementation, E7-4642 12097-12121 E7-4668 National Transportation National Transportation Safety Board NOTICES Meetings;

Sunshine Act, 12202 07-1283 Nuclear Nuclear Regulatory Commission NOTICES Plants and materials; physical protection: Radioactive materials of concern security; safeguards information protection, and fingerprinting and criminal history record check requirements, 12206-12217 E7-4735 E7-4749 E7-4753 Reports and guidance documents; availability, etc.: Deletion of E bar definition and revision to reactor coolant system specific activity technical specification; consolidated line item improvement process, 12217-12223 E7-4754 Relocation of departure from nucleate boiling parameters to core operating limits report for combustion engineering pressurized water reactors; consolidated line item improvement process, 12223-12227 E7-4752 *Applications, hearings, determinations, etc.:* AREVA NP, Inc., 12202-12204 E7-4750 Shaw AREVA MOX Services, 12204-12206 E7-4751 Occupational Occupational Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 12200-12202 E7-4702 Pension Pension Benefit Guaranty Corporation RULES Single-employer plans:

Allocation of assets— Interest assumptions for valuing and paying benefits, 12087-12088 E7-4680 NOTICES Single-employer plans: Interest rates and assumptions, 12227 E7-4679 Personnel Personnel Management Office RULES Federal Long Term Care Insurance Program: Miscellaneous changes, corrections, and clarifications, 12037-12038 E7-4695 Pay administration: e-Payroll initiative; pay policies standardization, 12032-12037 E7-4696 Veterans’ preference: Veteran definition; individuals discharged or released from active duty, preference eligibility clarification; conformity between veterans’ preference laws, 12031-12032 E7-4697 PROPOSED RULES Reduction in force:

Retention; representative rate, order of release from competitive level and assignment rights; clarification, 12122-12125 E7-4701 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Hazardous materials— Railroad tank car transportation safety, 12259-12260 E7-4686 Prisons Prisons Bureau RULES Inmate control, custody, care, etc.: Suicide prevention program, 12085-12087 E7-4684 SEC Securities and Exchange Commission NOTICES Investment Company Act of 1940:

Vanguard Bond Index Funds, et al., 12227-12233 E7-4721 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 12233-12238 E7-4747 Chicago Board Options Exchange, Inc., 12238-12239 E7-4758 International Securities Exchange, LLC, 12240 E7-4691 NYSE Arca, Inc., 12240-12242 E7-4692 Philadelphia Stock Exchange, Inc., 12242-12244 E7-4722 Social Social Security Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 12244-12248 E7-4654 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 12193-12195 07-1212 07-1213 Surface Surface Transportation Board NOTICES Committees; establishment, renewal, termination, etc.:

Rail Energy Transportation Advisory Committee, 12260 E7-4769 Railroad operation, acquisition, construction, etc.: Savage Bingham & Garfield Railroad Co., 12261 E7-4514 Railroad services abandonment: Norfolk Southern Railway Co., 12261 E7-4422 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Railroad Administration See Federal Transit Administration See Maritime Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 12261-12262 E7-4781 Separate Parts In This Issue Part II Energy Department, Federal Energy Regulatory Commission, 12266-12531 E7-3636 Part III Housing and Urban Development Department, 12534-12537 E7-4681 Part IV Housing and Urban Development Department, 12540-12543 E7-4682 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 50 Thursday, March 15, 2007 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR PART 211 RIN 3206-AL00 Veterans' Preference AGENCY: Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management

(OPM)is adopting as a final rule, without changes, an interim rule that implemented amendments to veterans' preference as contained in the National Defense Authorization Act for FY 2006. These amendments expanded the definition of a veteran and clarified veterans' preference eligibility for individuals discharged or released from active duty under honorable conditions. The intended effect of the regulatory changes was to conform OPM's regulations to the changes in the veterans' preference laws, to ensure that job-seeking veterans received the preference to which they are entitled. DATES: Final rule effective March 15, 2007. FOR FURTHER INFORMATION CONTACT: Scott A. Wilander by telephone at

(202)606-0960; by fax at

(202)606-0390; TTY at

(202)606-3134; or by e-mail at *Scott.Wilander@opm.gov* . SUPPLEMENTARY INFORMATION: On June 9, 2006, OPM issued an interim rule with request for comments at 71 FR 33375, to amend its regulation for implementing statutory changes regarding veterans' preference. This rule:

(1)Expanded the definition of a veteran in 5 CFR 211.102(a) to include individuals who served on active duty for more than 180 consecutive days, other than for training, any part of which occurred during the period beginning September 11, 2001, and ending on the date prescribed by Presidential proclamation or by law as the last day of Operation Iraqi Freedom;

(2)revised § 211.102(a) to include anyone who served on active duty during the period beginning August 2, 1990, and ending January 2, 1992, as previously established by the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85);

(3)clarified that individuals who are released or discharged from active duty in the armed forces, as opposed to being separated from the armed forces, may receive veterans' preference provided these individuals meet other applicable veterans' preference eligibility requirements; and

(4)amended § 211.102(g) to correspond with the changes in § 211.102(a) and

(b)by replacing the term “Separated under honorable conditions” with “Discharged or released from active duty” consistent with the statutory change contained in the Act. OPM received written comments from one agency and 7 individuals, and one voice-mail comment from an individual. Of the nine comments received, three expressed concern and confusion as to whether dishonorably discharged veterans would receive veterans' preference under the new criteria. As stated in the interim regulation and § 211.102(g), a veteran must have been separated under honorable conditions (i.e., an honorable or general discharge) to be eligible for veterans' preference under these provisions. One individual asked whether agencies must grant veterans' preference to employees currently on their rolls who did not have the preference documented at the time the interim regulation was published. Agencies are not required to update their employees' Official Personnel Files

(OPF)as a result of the interim regulation. Because veterans' preference is a consideration in a reduction in force (RIF), any agency preparing for a RIF must update their employees' OPFs (block 26 on the Standard Form—50) to ensure that individuals entitled to veterans' preference are accorded their rights for RIF purposes. One agency asked OPM to clarify the phrase, “the date prescribed by Presidential proclamation or by law as the last day of Operation Iraqi Freedom” contained in § 211.102(a)(6). The phrase refers to the ending date (yet to be determined) of the period during which anyone who served on active duty and is otherwise eligible is entitled to veterans' preference under these provisions. The President, through proclamation, or Congress, through legislation, is responsible for designating the termination date of military operations which qualify for veterans' preference. OPM will revise the regulations and update the VetGuide when this ending date becomes available. Another commenter asked whether the expanded veterans' preference criteria in § 211.102(a)(6) is for purposes of granting 5-point veterans' preference or for some other purpose. Anyone who meets the criteria in § 211.102(a)(6), and is otherwise eligible, is entitled to 5-point veterans' preference as well as additional protection during a reduction in force. Otherwise eligible in this context means the veteran must meet the requirements of § 211.201(g) and have served either 24 months of continuous active duty, or the full period of time called or ordered to active duty. OPM is updating VetGuide to clarify this information. One individual asked whether the veterans' preference criteria in § 211.102(a)(6) included veterans at the rank of major and above. The provision in § 211.102(a)(6) made no change to the statutory restriction against veterans' preference entitlement for retired officers at the rank of major and above. Therefore, military retirees at the rank of major, lieutenant commander, or higher are not eligible for preference in appointment unless they are disabled veterans (this restriction does not apply to reservists who will not begin drawing military retired pay until age 60). One individual asked OPM to clarify whether a veteran must have served continuously for 24 months in order to be eligible under § 211.102(a)(6). A veteran must have served continuously for 24 months, or the full period called or ordered to active duty, in order to be eligible for veterans' preference under § 211.102(a)(6). This requirement, contained in 38 U.S.C. 5303A, prescribes a minimum of 2 years, service (or the full period called or ordered to active duty) for those enlisting after September 7, 1980, or who enter on active duty after October 14, 1982. This requirement does not apply to individuals seeking 10-point veterans' preference on the basis of a service-connected disability. OPM will update VetGuide to further clarify the application of the 24-month requirement. One commenter recommended OPM replace the word “badge” with “medal” or “badge or medal” in § 211.102(a)(2). OPM is not adopting this recommendation because the reference to “badge” is contained in law at 5 U.S.C. 2108(1)(A). Further, military personnel receive many awards and decorations which are determined by the Department of Defense. OPM and its predecessor agency, the Civil Service Commission, have always used the terms “badge” and “medal” interchangeably, as appropriate. We believe VetGuide provides sufficient explanation of the many badges and medals which qualify for purposes of veterans' preference. The same individual asked OPM to clarify in the final regulation whether an Army “service medal” qualifies an individual for veterans' preference under part 211. OPM is not adopting this suggestion. The list of military campaigns, expeditions, awards, and decorations qualifying for veterans' preference is too lengthy to be contained in this part. However, OPM lists this information in Appendix A of VetGuide available on-line at *http://www.opm.gov/veterans/html/vgmedal2.asp* . In general, service medals are not qualifying for purposes of veterans' preference. One commenter asked OPM to explain the significance of changing “separated” to “released or discharged” in § 211.102(a), (b), and (g). OPM modified part 211 in order to be consistent with recent statutory changes to 5 U.S.C. 2108. With these changes the law, OPM's implementing regulations, and Department of Defense

(DD)Form 214, *Certificate of Release or Discharge from Active Duty* , the form used by veterans to claim 5-point veterans' preference, all use the same language which should make it easier for eligible veterans to receive their entitlement. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. Regulatory Flexibility Act I certify that this regulation would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because it affects only Federal agencies employees. List of Subjects in 5 CFR Part 211 Government employees, Veterans. Office of Personnel Management. Linda M. Springer, Director. Accordingly, the interim rule amending part 211 of title 5, Code of Federal Regulations, which was published at 71 FR 33375 on June 9, 2006, is adopted as a final rule without changes. [FR Doc. E7-4697 Filed 3-14-07; 8:45 am] BILLING CODE 6325-39-P OFFICE OF PERSONNEL MANAGEMENT 5 CFR PARTS 317, 353, 550, and 551 RIN 3206-AL21 Employment in the Senior Executive Service, Restoration To Duty From Uniformed Service or Compensable Injury, Pay Administration (General), and Pay Administration Under the Fair Labor Standards Act; Miscellaneous Changes to Pay and Leave Rules AGENCY: Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management is issuing final regulations to amend a number of rules on pay and leave administration, including employment in the Senior Executive Service, use of paid leave during uniformed service, time limits for using compensatory time off earned in lieu of overtime pay, and other miscellaneous changes. The final regulations are being issued to standardize pay and leave policies in support of the consolidation of agency human resources and payroll systems. DATES: The regulations are effective on May 14, 2007. FOR FURTHER INFORMATION CONTACT: Sharon Dobson by telephone at

(202)606-2858; by fax at

(202)606-0824; or by e-mail at *pay-performance-policy@opm.gov.* SUPPLEMENTARY INFORMATION: On January 5, 2005, the Office of Personnel Management

(OPM)issued a comprehensive package of proposed regulations on Restoration to Duty From Uniformed Service or Compensable Injury; Payrates and Systems (General); Pay Under the General Schedule; Pay Administration (General); Pay Administration Under the Fair Labor Standards Act; Recruitment and Relocation Bonuses; Retention Allowances; Supervisory Differentials; Hours of Duty; and Absence and Leave (70 FR 1068). The proposed regulations are available at *http://www.opm.gov/fedregis.* The 60-day comment period ended on March 7, 2005. We received a total of 93 comments on the proposed regulations. In these final regulations, we are addressing the revisions to rules concerning the retention of pay and benefits for a Senior Executive Service

(SES)member who accepts a Presidential appointment, use of paid leave during uniformed service, time limits for using compensatory time off earned in lieu of overtime pay, and other miscellaneous rules. We have already published regulations for some of the subject areas included in the January 2005 proposed regulations in separate issuances in the **Federal Register** . Comments received on the proposed changes to the rules on Adjustments of Work Schedules for Religious Observances, Hours of Duty, and Absence and Leave will be addressed in subsequent issuances in the **Federal Register** . Except as otherwise stated in this supplementary information, the purpose of the revisions in these final regulations is to standardize pay and leave policies in support of the consolidation of agency human resources and payroll systems and in general to aid agencies in the administration of these programs. All revisions are being made to regulations in title 5, Code of Federal Regulations. Regulations Already Issued Some of the changes included in the January 2005 proposed regulations have already been addressed in subsequent regulations issued by OPM on May 13, 2005, May 31, 2005, and August 17, 2006, as discussed below. The January 2005 regulations proposed to amend the definition of rate of basic pay in §§ 575.103, 575.203, and 575.303 to clarify that night pay and environmental differential pay under the Federal Wage System are not included in the rate of basic pay for the purposes of recruitment, relocation, and retention incentives. The amended definition of rate of basic pay for the purpose of recruitment, relocation, and retention incentives was included in OPM's interim regulations issued on May 13, 2005, for recruitment, relocation, and retention incentives (70 FR 25732). The interim regulations are available at *http://www.opm.gov/fedregis.* The January 2005 regulations proposed to add a new § 531.605 to define the requirements for determining an employee's official worksite for the purpose of identifying an employee's location-based pay entitlements, including locality rates and special rates. The proposed regulations also addressed official worksite determinations for employees temporarily working at other locations and teleworking from an alternative worksite. The comments OPM received on proposed § 531.605 were addressed and changes made as an interim rule on May 31, 2005 (70 FR 31278). The interim regulations are available at *http://www.opm.gov/fedregis.* Section 531.605 was again revised in interim regulations issued on August 17, 2006, to clarify the rules for determining an employee's official worksite when he or she teleworks from an alternative worksite during an emergency situation, such as a pandemic health crisis (71 FR 47692). The interim regulations are available on OPM's Web site at *http://www.opm.gov/fedregis.* Finally, the January 2005 regulations proposed to amend 5 CFR part 630, subpart D, concerning the use of sick leave for family care or bereavement purposes. The regulations proposed, among other changes, removing the requirement that a full-time employee must maintain 80 hours of sick leave in his or her sick leave account to use up to 104 hours (13 workdays) of his or her sick leave for general family care or bereavement purposes and up to 480 hours (12 workweeks) of sick leave to care for a family member with a serious health condition. The comments OPM received on the proposed amendments to 5 CFR part 630, subpart D, were addressed and changes made as a final rule on August 17, 2006 (71 FR 47693). The final regulations on sick leave are available at *http://www.opm.gov/fedregis.* Final Regulations in This Issuance In this issuance, the final regulations address the changes made to the rules on employment in the Senior Executive Service, use of paid leave during uniformed service, time limits for using compensatory time off earned in lieu of overtime pay, and other miscellaneous changes. For these subject areas, we received 29 comments on the January 2005 proposed regulations—20 from agencies, 6 from individuals, 2 from Federal labor unions, and 1 from a Federal employee association. Senior Executive Service Under 5 U.S.C. 5307(d), a higher aggregate limitation on pay (equal to the total annual compensation payable to the Vice President under 3 U.S.C. 104) applies to SES members in positions covered by a certified senior executive performance appraisal system. An agency questioned whether a former SES member may continue to retain the higher aggregate limitation on pay under the authority provided in 5 U.S.C. 3392(c) and § 317.801(b) to retain SES pay and benefits when he or she accepts a Presidential appointment. In these final regulations, we have amended § 317.801(b) to clarify that a former SES member who chooses to retain SES provisions related to basic pay, performance awards, awarding of ranks, severance pay, leave, and retirement may also choose to retain the higher aggregate limitation on pay that applied to the employee. Paid Leave While Performing Uniformed Service OPM proposed to amend § 353.208 to permit an employee, upon request, to use any accrued annual leave or military leave while performing service with the uniformed service, but not to use sick leave. An agency objected to the proposed change. The agency stated that the use of sick leave during a period of military service is a legitimate right of an employee under the provisions and intent of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), (Public Law 103-353, October 13, 1994). We agree and are not adopting the proposed amendment. Section 353.208 will continue to permit an employee performing service in the uniformed service to use sick leave, when appropriate. An agency recommended that OPM permit an employee to use compensatory time off earned in lieu of overtime pay and earned credit hours while performing uniformed service, since they both provide paid time off. We are not adopting this suggestion because employees are entitled to payment for unused compensatory time off and credit hours only in certain situations. We note that § 550.114(f)(2)(i) and § 551.531(f)(1) require agencies to provide payment for unused earned compensatory time off when an employee is separated or placed in a leave without pay status to perform uniformed service. We believe it would be appropriate to allow an employee to use earned compensatory time off for travel under 5 CFR part 550, subpart N, while performing uniformed service because an employee may not receive payment for unused earned compensatory time off for travel. (See 5 U.S.C. 5550b(b) and § 550.1408.) We have revised § 353.208 to permit an employee to use earned compensatory time off for travel under 5 CFR part 550, subpart N, to perform uniformed service. Section 1106 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65, October 5, 1999) amended 5 U.S.C. 6323(a)(1) to permit an employee to use his or her entitlement to 15 days of military leave for “inactive duty training” (as defined in section 101 of title 37, United States Code) in addition to active duty and active duty training. Consistent with this statutory amendment, we proposed to delete the last sentence of § 353.208, which states an employee may not use military leave for inactive duty training. We did not receive any comments, and therefore, have deleted the last sentence in § 353.208 in these final regulations. Time Limits for Using Earned Compensatory Time Off The consolidation of human resources and payroll processing systems has revealed varying discretionary policies among agencies concerning time limits for using compensatory time off earned in lieu of overtime pay. These varying policies have resulted in increased costs for payroll providers to accommodate the myriad of agency policies within their systems and those increased costs are passed on to the agencies. As part of OPM's effort to support the consolidation of human resources and payroll processing systems, we proposed a standardized time limit of 26 pay periods for using compensatory time off earned in lieu of overtime pay that would be applied Governmentwide. The 26-pay period time limit would be applied to both employees not covered by the FLSA (FLS-exempt) under § 550.114 and employees covered by the FLSA (FLSA-nonexempt) under § 551.531. To assist in transitioning to the new time limitation, we proposed to provide an employee with unused compensatory time off to his or her credit on the effective date of the final regulations 26 pay periods after the effective date to use such compensatory time off. In § 550.114(d), we proposed to provide agencies with discretionary authority to provide payment to FLSA-exempt employees for, or require forfeiture of, compensatory time off that is not used within the 26-pay period time limit. The proposed regulations at § 550.114(d)(2) allowed that if an FLSA-exempt employee is unable to take earned compensatory time off within 26 pay periods due to an exigency of the service beyond the employee's control, the agency must provide payment for the unused compensatory time off at the overtime rate in effect for the period during which the compensatory time off was earned. In addition, the proposed regulations at § 550.114(e)(2) (§ 550.114(f)(2) in the final regulations) required that if an FLSA-exempt employee separates or goes on extended leave without pay to perform service in one of the uniformed services or because of an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81, the agency must provide payment for the unused compensatory time off at the overtime rate in effect for the period during which the compensatory time off was earned. In addition, to ensure consistent treatment of affected employees, OPM proposed amending § 551.531(d) to require an FLSA-nonexempt employee to use earned compensatory time off within 26 pay periods. An FLSA-nonexempt employee who fails to use earned compensatory time off earned within 26 pay periods or who separates or transfers from the agency before the earned compensatory time off is used, must be paid for the unused compensatory time off at the overtime rate in effect for the period during which the compensatory time off was earned. The proposed regulations at § 551.531(e) (§ 551.531(f) in the final regulations) also required that, if an FLSA-nonexempt employee is placed on leave without pay to perform service in the uniformed services or because of an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81, the agency must provide payment for the unused compensatory time off at the overtime rate in effect for the period during which the compensatory time off was earned. One agency recommended a shorter time limitation— *e.g.* , 13 pay periods—for using compensatory time off earned in lieu of overtime pay. An individual opposed the limitation of 26 pay periods. The two labor organizations opposed providing agencies with discretionary authority to determine whether an FLSA-exempt employee must forfeit or receive payment for unused compensatory time off. One labor organization recommended expanding the circumstances in which an employee must receive payment for unused compensatory time off to include reduction in force

(RIF)situations. The other labor organization believed FLSA-exempt employees should receive payment for compensatory time off not used within 26 pay periods or be given additional time to use the compensatory time off. We disagree with these recommendations. Unlike FLSA-nonexempt employees, who have a statutory entitlement to receive payment for unused compensatory time off, FLSA-exempt employees do not have any such statutory entitlement. Legislation is needed to provide FLSA-exempt employees with an entitlement to receive payment for unused compensatory time off. In addition, requiring agencies to provide payment for unused compensatory time off to FLSA-exempt employees would significantly increase costs for Federal agencies. Finally, we believe 26 pay periods is sufficient time for most employees to use their earned compensatory time off. We note that § 550.114(d)(2) requires agencies to provide payment for compensatory time off if an employee's failure to use his or her earned compensatory time off is due to an exigency of the service beyond the employee's control. An agency was concerned that a “rolling” 26-pay period time limit would be an administrative burden for agencies to track. Another agency suggested using a fixed yearly date for employees to use earned compensatory time off because it would provide for easier tracking and monitoring. We are not adopting these suggestions. We believe most agencies already impose on employees a “rolling” time limit for using earned compensatory time off. Therefore, the proposed regulations would not impose an additional administrative burden on the agencies. A fixed yearly date for using earned compensatory time off would result in providing varying lengths of time for individual employees to use earned compensatory time off, depending on when the employee earned the compensatory time off. We believe imposing a time limit of 26 pay periods within which to use earned compensatory time off results in fair and equitable treatment of affected employees and supports our goal of standardizing pay policies. Employees will all have the same number of pay periods within which they must use their earned compensatory time off. We are adopting the revised regulations in § 550.114(d) and

(f)and § 551.531(f) as final. Two agencies disagreed with proposed § 550.114(d), which would give an employee with unused compensatory time off to his or her credit as of the effective date of the final regulations 26 pay periods after the effective date of the final regulations to use the compensatory time off. One agency suggested providing agencies with discretionary authority to extend the time limitation for using earned compensatory time off for employees who have been unable to use earned compensatory time off prior to the effective date of the final regulations because of work requirements or scheduling conflicts. Another agency is concerned that the proposed rule would have major budgetary implications if the agency's policy were to provide payment for unused compensatory time off and employees are unable to use their earned compensatory time off within 26 pay periods after the effective date of the final regulations. The agency suggested that employees who have compensatory time off to their credit as of the effective date of the final regulations be given a minimum of 3 years to use the compensatory time off. We agree and have added a new paragraph

(e)to § 550.114 and § 551.531 of the final regulations to allow an employee who has compensatory time off to his or her credit as of the effective date of the final regulations at least 3 years to use the earned compensatory time off. One agency suggested revising the proposed regulations to require an employee to use earned compensatory time off within 26 pay periods after the pay period during which it was earned. The agency suggested beginning the 26-pay period time limit after the pay period during which it was earned will ensure standardized recordkeeping and tracking. We agree and have revised § 550.114(d) and § 551.531(d) to require that compensatory time off that is not used within 26 pay periods after the pay period during which it was earned must be paid by the agency or forfeited by the employee. An agency noted that proposed § 550.114(e)(1) addresses the treatment of compensatory time off when an employee either transfers or separates from an agency, while § 551.531(d) addresses the treatment of compensatory time off only when an employee separates from an agency. To remedy this, we have revised § 551.531(d) to address the treatment of compensatory time off when an employee transfers to a different agency. Finally, we are redesignating § 551.531(e) as § 551.531(g), and correcting new paragraph

(g)by deleting language that states the value of compensatory time off for FLSA-nonexempt employees is considered in applying pay limitations. Compensatory time off for FLSA-nonexempt employees should not be considered in applying the biweekly or annual premium pay limitations established under 5 U.S.C. 5547 or the aggregate limitation on pay established under 5 U.S.C. 5307. In addition, we are correcting a citation in §§ 550.112(j)(1) and 551.422(d) from “(41 CFR 301-1.3(c)(4))” to “(41 CFR 300-3.1),” which references the definition of *official station* in the General Services Administration's Federal Travel Regulations. An individual requested clarification of the terms *irregular or occasional overtime work* in relationship to earning compensatory time off. As defined in § 550.103, *irregular or occasional overtime work* means overtime work that is not part of an employee's regularly scheduled administrative workweek ( *i.e.* , the period within an administrative workweek in which an employee is regularly scheduled to work). Other Miscellaneous Changes Lump-Sum Payments for Annual Leave The regulations governing lump-sum payments for accumulated and accrued annual leave for employees who separate from Federal service in 5 CFR 550, subpart L, have been revised to ensure consistency with the guidance provided in the OPM Operating Manual on the Federal Wage System. The revised regulations ensure that a lump-sum payment for employees who work a regular rotating schedule involving work on both day and night shifts is calculated as if the employee had continued to work beyond the effective date of separation. An agency asked that we clarify what is meant by “work beyond the effective date of separation.” Another agency requested clarification in determining whether a lump-sum payment should be extended to the end of an employee's last scheduled shift. Under 5 U.S.C. 5551, a lump-sum payment must equal the pay an employee would have received had he or she remained in Federal service until expiration of the period of annual leave. Agencies must project a lump-sum period to include any accumulated and accrued annual leave to the employee's credit, as of the date of separation. The lump-sum leave period is the employee's annual leave projected forward for all workdays the employee would have worked if he or she had remained in Federal service, including holidays (even though they are typically nonworkdays) as required by 5 U.S.C. 5551(a), until the expiration of the employee's accumulated and accrued annual leave. The final regulations in § 550.1205(b)(5) state that a night differential is payable for that portion of the lump-sum period that would have occurred when the employee was scheduled to work night shifts. The lump-sum period extends only through the last hour of annual leave. Restriction on Paying Sunday Premium Pay Section 636 of the Treasury and General Government Appropriations Act, 1998 (Public Law 105-61, October 10, 1997), permanently restricted the payment of Sunday premium pay for all employees Governmentwide who are paid from appropriated funds and who do not actually perform work on Sunday. Section 624 of the Treasury and General Government Appropriations Act, 1999 (Public Law 105-277, October 21, 1998), expanded the permanent restriction on the payment of Sunday premium pay to cover employees who are paid from any Act (including payments from revolving funds). These provisions effectively prohibit the payment of Sunday premium pay to employees during any period when no work is performed. This includes holidays, periods of paid leave, excused absence (administrative leave), compensatory time off, credit hours, or time off as an incentive or performance award. The restriction covers employees who are paid from any Act, including payments from revolving funds. Consistent with this permanent legal restriction, we have revised § 550.171(a) by deleting language stating that Sunday premium pay is paid during periods of paid leave or excused absence. We also will revise our guidance on payment of Sunday premium pay during periods of paid leave in the OPM Operating Manual for the Federal Wage System. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees. List of Subjects in 5 CFR Parts 317, 353, 550, and 551 Administrative practice and procedure, Claims, Government employees, Law enforcement officers, Reporting and recordkeeping requirements, Wages. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM amends parts 317, 353, 550, and 551 of title 5 of the Code of Federal Regulations to read as follows: PART 317—EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE 1. The authority citation for part 317 continues to read as follows: Authority: 5 U.S.C. 3392, 3393, 3395, 3397, 3592, 3593, 3595, 3596, 8414, and 8421. Subpart H—Retention of SES Provisions 2. In § 317.801, paragraph (b)(1) is revised to read as follows:

(b)*Election.*

(1)At the time of appointment, an appointee covered by paragraph

(a)of this section may elect to retain some, all, or none of the following SES provisions related to basic pay (including the aggregate limitation on pay established by 5 U.S.C. 5307), performance awards, awarding of ranks, severance pay, leave, and retirement. That election will remain in effect for no less than 1 year, unless the appointee leaves the position sooner. PART 353—RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE INJURY 3. The authority citation for part 353 continues to read as follows: Authority: 38 U.S.C. 4301 et. seq., and 5 U.S.C. 8151 Subpart B—Uniformed Service 4. Section 353.208 is revised to read as follows: § 353.208 Use of paid leave during uniformed service. An employee performing service with the uniformed services must be permitted, upon request, to use any accrued annual leave under 5 U.S.C. 6304, military leave under 5 U.S.C. 6323, or earned compensatory time off for travel under 5 U.S.C. 5550b during such service. PART 550—PAY ADMINISTRATION (GENERAL) Subpart A—Premium Pay 5. The authority citation for subpart A continues to read as follows: Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections 407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316. § 550.112 [Amended] 6. In § 550.112(j)(1), remove the citation “(41 CFR 301-1.3(c)(4))” and add in its place “(41 CFR 300-3.1).” 7. In § 550.114, paragraph

(d)is revised, paragraph

(e)is redesignated as paragraph (g), and new paragraphs

(e)and

(f)are added to read as follows: § 550.114 Compensatory time off.

(d)Except as provided in paragraph (f)(2) of this section, an employee must use accrued compensatory time off to which he or she is entitled under paragraph

(a)or

(b)of this section by the end of the 26th pay period after the pay period during which it was earned. The head of an agency, at his or her sole and exclusive discretion, may provide that an employee who fails to take compensatory time off to which he or she is entitled within 26 pay periods after the pay period during which it was earned must—

(1)Receive payment for such unused compensatory time off at the dollar value prescribed in paragraph

(g)of this section; or

(2)Forfeit the unused compensatory time off, unless the failure to take the compensatory time off is due to an exigency of the service beyond the employee's control, in which case the agency head must provide payment for the unused compensatory time off at the dollar value prescribed in paragraph

(g)of this section.

(e)Except as provided in paragraph (f)(2) of this section, compensatory time off to an employee's credit as of May 14, 2007 must be used by the end of the pay period ending 3 years after May 14, 2007. The head of an agency, at his or her sole and exclusive discretion, may provide that an employee who fails to take compensatory time off to which he or she is entitled by the end of the pay period ending 3 years after May 14, 2007 must—

(1)Receive payment for such unused compensatory time off at the dollar value prescribed in paragraph

(g)of this section; or

(g)of this section. (f)(1) Except as provided in paragraph (f)(2) of this section, an employee with unused compensatory time off under paragraph

(a)or

(b)of this section who transfers to another agency or separates from Federal service before the expiration of the time limit established under paragraphs

(d)or

(e)of this section may receive overtime pay or forfeit the unused compensatory time off, consistent with the employing agency's policy established under paragraphs

(d)and

(e)of this section.

(2)If an employee with unused compensatory time off under paragraph

(a)or

(b)of this section separates from Federal service or is placed in a leave without pay status under the following circumstances, the employee must be paid for unused compensatory time off at the dollar value prescribed in paragraph

(g)of this section:

(i)The employee separates or is placed in a leave without pay status to perform service in the uniformed services (as defined in 38 U.S.C. 4303 and § 353.102); or

(ii)The employee separates or is placed in a leave without pay status because of an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81. 8. In § 550.171, paragraph

(a)is revised to read as follows: § 550.171 Authorization of pay for Sunday work.

(a)A full-time employee is entitled to pay at his or her rate of basic pay plus premium pay at a rate equal to 25 percent of his or her rate of basic pay for each hour of Sunday work (as defined in § 550.103). Subpart L—Lump-Sum Payment for Accumulated and Accrued Annual Leave 9. The authority citation for subpart L continues to read as follows: Authority: 5 U.S.C. 5553, 6306, and 6311. 10. In § 550.1205, revise paragraph (b)(5)(i) and paragraph

(g)to read as follows: § 550.1205. Calculating a lump-sum payment.

(b)* * *

(5)* * *

(i)Night differential under 5 U.S.C. 5343(f) at the applicable percentage rate received by a prevailing rate employee for all regularly scheduled periods of night shift duty covered by the unused annual leave as if the employee had continued to work beyond the effective date of separation, death, or transfer. In the case of an employee who is assigned to a regular rotating schedule involving work on both day and night shifts, the night differential is payable for that portion of the lump-sum period that would have occurred when the employee was scheduled to work night shifts.

(g)For a reemployed annuitant who becomes eligible for a lump-sum payment under § 550.1203, the agency must compute the lump-sum payment using the annuitant's pay before any reductions required under § 837.303 of this chapter. PART 551—PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT 11. The authority citation for part 551 continues to read as follows: Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29 U.S.C. 204f). Subpart D—Hours of Work § 551.422 [Amended] 12. In § 551.422(d), remove the citation “(41 CFR 301-1.3(c)(4))” and add in its place “(41 CFR 300-3.1).” Subpart E—Overtime Pay Provisions 13. In § 551.531, paragraph

(d)is revised, paragraph

(e)is revised and redesignated as paragraph (g), and new paragraphs

(e)and

(f)are added to read as follows: § 551.531 Compensatory time off.

(d)If compensatory time off earned under paragraph

(a)or

(b)of this section is not taken within 26 pay periods after the pay period during which it was earned or if the employee transfers or separates from an agency before using the compensatory time, the employee must be paid for overtime work at the dollar value prescribed in paragraph

(g)of this section.

(e)Compensatory time off to an employee's credit as of May 14, 2007 must be used by the end of the pay period ending 3 years after May 14, 2007. If the earned compensatory time off is not taken by the end of the pay period ending 3 years after May 14, 2007, the employee must be paid for overtime work at the dollar value prescribed in paragraph

(g)of this section.

(f)If an employee with unused compensatory time off under paragraphs (a), (b), or

(e)of this section separates from Federal service or is placed in a leave without pay status under the following circumstances, the employee must be paid for overtime work at the overtime rate at the dollar value prescribed in paragraph

(g)of this section:

(1)The employee is separated or placed in a leave without pay status to perform service in the uniformed services (as defined in 38 U.S.C. 4303 and § 353.102); or

(2)The employee is separated or placed in a leave without pay status because of an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81.

(g)The dollar value of compensatory time off when it is liquidated is the amount of overtime pay the employee otherwise would have received for hours of the pay period during which compensatory time off was earned by performing overtime work. [FR Doc. E7-4696 Filed 3-14-07; 8:45 am] BILLING CODE 6325-39-P OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 875 RIN 3206-AK99 Federal Long Term Care Insurance Program: Miscellaneous Changes, Corrections, and Clarifications AGENCY: Office of Personnel Management. ACTION: Final regulation. SUMMARY: The Office of Personnel Management

(OPM)is issuing a final rule to make miscellaneous changes, corrections, and clarifications to the Federal Long Term Care Insurance Program (FLTCIP) regulations. DATES: *Effective Date:* April 16, 2007. FOR FURTHER INFORMATION CONTACT: Edward M. DeHarde, Center for Employee and Family Support Policy, Strategic Human Resources Policy Division, Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415; or call him at 202-606-0004. SUPPLEMENTARY INFORMATION: The current FLTCIP regulations were published in the **Federal Register** at 70 FR 30605, May 27, 2005. In those regulations OPM replaced references to “Federal civilian and Postal employees and members of the uniformed services” with “active workforce member” in several places. We are making a similar change in two additional places: § 875.405 and § 875.410. We are also correcting a section reference in § 875.209 of the previously published regulations. In addition, § 875.408 of the FLTCIP regulations discusses incontestability, a provision that allows coverage based on an erroneous application to continue under certain circumstances. The FLTCIP contractor often doesn't learn that coverage is based on an erroneous application until someone files a claim, and the contractor becomes aware that the information on the individual's application differed from what is shown in the individual's medical records. If the erroneous coverage has been in effect less than two years, or if the application contained knowingly false or misleading information, the contractor may rescind

(void)the coverage and refund the individual's premiums. Section 875.104 of the FLTCIP regulations contains procedures for resolving disputes concerning eligibility for benefits and payment of claims. These final regulations clarify that the claims dispute procedures apply only to persons who have valid coverage under the Program. They do not apply to individuals whose erroneous coverage is rescinded. A proposed rule was published to amend 5 CFR part 875 in the **Federal Register** at 71 FR 19459, April 14, 2006. OPM requested comments by June 13, 2006. We received one comment by that date, from an FLTCIP enrollee. The issues raised by this commenter are discussed below. The commenter did not address the miscellaneous changes, corrections, and clarifications that were contained in the proposed regulation. Instead, the commenter suggested that OPM should specifically list in the regulations which injuries qualify for coverage under FLTCIP to ensure that enrollees with similar injuries receive similar coverage. The comment received is beyond the scope of the proposed change to FLTCIP regulations. In addition, coverage under FLTCIP is not based on an enrollee's injury or medical diagnosis; it is based on an enrollee's established inability to perform defined activities of daily living or an enrollee's severe cognitive impairment. Therefore, for the reasons supplied in the proposed rule, the proposed rule amending 5 CFR part 875 which was published in the **Federal Register** at 71 FR 19459, April 14, 2006, is adopted as a final rule without change. Executive Order 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they affect only enrollees in the Federal Long Term Care Insurance Program. List of Subjects in 5 CFR Part 875 Administrative practices and procedures, Employee benefit plans, Government contracts, Government employees, Health insurance, Military personnel, Retirement. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM is amending 5 CFR part 875, as follows: PART 875—FEDERAL LONG TERM CARE INSURANCE PROGRAM 1. The authority citation for 5 CFR part 875 continues to read as follows: Authority: Authority: 5 U.S.C. 9008. 2. In § 875.104 add paragraph

(f)to read as follows: § 875.104 What are the steps required to resolve a dispute involving benefit eligibility or payment of a claim?

(f)The procedures described in paragraphs (a), (b), (c), (d), and

(e)of this section apply only if you have valid coverage under the FLTCIP. If the Carrier determines that your coverage was based on an erroneous application and voids the coverage as described in § 875.408 of this part, these provisions do not apply. The Carrier will provide you with information on your review rights in its rescission letter (letter voiding your coverage). 3. In § 875.209 revise the last sentence of paragraph

(b)to read as follows: § 875.209 How do I demonstrate that I am eligible to apply for coverage?

(b)* * * The incontestability provisions in § 875.408 do not apply to this section. 4. In § 875.405 revise the first sentence of paragraph (a)(1) to read as follows: § 875.405 If I marry, may my new spouse apply for coverage? (a)(1) If you are an active workforce member and you have married, your spouse is eligible to submit an application for coverage under this section within 60 days from the date of your marriage and will be subject to the underwriting requirements in force for the spouses of active workforce members during the most recent open season. * * * 5. In § 875.408 revise paragraph

(a)to read as follows: § 875.408 What is the significance of incontestability?

(a)Incontestability means coverage issued based on an erroneous application may remain in effect. Such coverage will not remain in effect under any of the following conditions:

(1)If your coverage has been in force for less than 6 months, the Carrier may void your coverage upon a showing that information on your signed application that was material to your approval for coverage is different from what is shown in your medical records.

(2)If your coverage has been in force for at least 6 months but less than 2 years, the Carrier may void your coverage upon a showing that information on your signed application that was material to your approval for coverage is different from what is shown in your medical records and pertains to the condition for which benefits are sought.

(3)After your coverage has been in effect for 2 years, the Carrier may void your coverage only upon a showing that you knowingly and intentionally made a false or misleading statement or omitted information in your signed application for coverage regarding your health status that was material to your approval for coverage.

(4)If your coverage is voided, as described in paragraph (a)(1), (a)(2), or (a)(3) of this section, no claims will be paid. In addition, the provisions of § 875.104 relating to the procedures for resolving a dispute involving benefits eligibility or claims denials do not apply to your situation. You may request a review by the Carrier if you believe that your coverage was voided in error. You must submit your request in writing to the Carrier within 30 days of the date of the rescission letter (letter voiding your coverage). 6. In § 875.410 revise the first sentence to read as follows: § 875.410 May I continue my coverage when I leave Federal or military service? If you are an active workforce member, your coverage will automatically continue when you leave active service, as long as the Carrier continues to receive the required premium when due. * * * [FR Doc. E7-4695 Filed 3-14-07; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 916 and 917 [Docket No. AMS-FV-06-0190; FV07-916/917-2 FIR] Nectarines and Peaches Grown in California; Temporary Suspension of Provisions Regarding Continuance Referenda Under the Nectarine and Peach Marketing Orders AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture

(USDA)is adopting, as a final rule, without change, an interim final rule temporarily suspending order provisions that require continuance referenda to be conducted for the nectarine and peach marketing orders during winter 2006-07. This rule enables USDA to postpone conducting the continuance referenda until the industry has had sufficient time to evaluate the effects of recent amendments to the marketing orders. Temporary suspension of the continuance referenda should also minimize confusion during the current committee nomination period, which overlaps with the scheduled referenda period. DATES: *Effective Date:* April 16, 2007. FOR FURTHER INFORMATION CONTACT: Laurel May, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; *Telephone:*

(202)720-2491, *Fax:*

(202)720-8938, or *E-mail* : *Laurel.May@usda.gov* ; or Kurt Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, Fresno, California 93721; *Telephone:*

(559)487-5901, *Fax:*

(559)487-5906, or *E-mail* : *Kurt.Kimmel@usda.gov.* The rule can be viewed at *http://www.regulations.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; *Telephone:*

(202)720-2491, *Fax:*

(202)720-8938, or *E-mail* : *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order Nos. 916 and 917, both as amended (7 CFR parts 916 and 917), regulating the handling of nectarines and peaches grown in California, respectively, hereinafter referred to as the “orders.” The orders are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after date of the entry of the ruling. This rule continues in effect the action that temporarily suspends the provisions in §§ 916.64(e) and 917.61(e) of the orders, which specify when continuance referenda should be conducted to determine whether growers favor continuance of the orders. Temporary suspension of the provisions for continuance referenda will provide growers with more time to evaluate the effects of recent amendments to the orders before voting on continuance of the marketing programs. Suspension of the referenda requirements will also diminish the confusion likely to occur if the referenda are held during current committee nominations. These actions were unanimously recommended by the Nectarine Administrative Committee

(NAC)and the Peach Commodity Committee

(PCC)(committees) at their August 31, 2006, meetings. Nectarines Section 916.64(e) of the nectarine marking order currently provides that USDA shall conduct a continuance referendum between December 1 and February 15 of every fourth fiscal period since winter 1974-75 to ascertain whether continuance of the order is favored by nectarine growers. A continuance referendum is, therefore, scheduled to be conducted between December 1, 2006, and February 15, 2007. Authorization to suspend the continuance referendum requirement is provided in § 916.64(b). The NAC recommended that the provision requiring the winter 2006-07 continuance referendum be temporarily suspended to allow the industry time to fully realize the impact of recent amendments to the marketing order. Amendments to the order were approved by nectarine growers in a referendum held in March 2006. The majority of the amendments were implemented on January 1, 2007. The continuance referendum cycle will resume as provided in § 916.64(e) in the period between December 1, 2010, and February 15, 2011. A referendum can be held in the interim if deemed appropriate by USDA. Among the recent amendments to the order are revisions to the NAC's nomination procedures, which require a transition to mail balloting. Ballots for the 2007-09 term of office were mailed to growers in January 2007. The NAC believes that receiving both the nomination ballots and the continuance referenda ballots during this transitional period would confuse growers, who would then be less likely to return any of the ballots. The committees expect that temporary suspension of the continuance referendum will minimize confusion and maximize grower participation in both the committee nominations and the continuance referendum. After this initial transitional period, biennial committee nominations should take place earlier in the year and are not expected to overlap with scheduled continuance referendum periods. Peaches Section 917.61(e) of the peach marketing order currently provides that USDA shall conduct a continuance referendum between December 1 and February 15 of every fourth fiscal period since winter 1974-75 to ascertain whether continuance of the order is favored by peach growers. A continuance referendum is, therefore, scheduled to be conducted between December 1, 2006 and February 15, 2007. Authorization to suspend the continuance referendum requirement is provided in § 917.61(b). The PCC recommended that the provision requiring the winter 2006-07 continuance referendum be temporarily suspended to allow the industry time to fully realize the impact of recent amendments to the marketing order. Amendments to the order were approved by peach growers in a referendum held in March 2006. The majority of the amendments were implemented on January 1, 2007. The continuance referendum cycle will resume as provided in § 917.61(e) in the period between December 1, 2010, and February 15, 2011. A referendum can be held in the interim if deemed appropriate by USDA. Section 917.61(e) also requires that USDA conduct continuance referenda regarding the provisions of Part 917 pertaining to pears. Although the provisions pertaining to pears are currently suspended, the pear referenda are conducted concurrently with the peach and nectarine continuance referenda. In order to stay synchronized with the peach and nectarine referenda, the pear referendum will not be held during the period between December 1, 2006, and February 15, 2007. The pear continuance referendum cycle will resume as provided in § 917.61(e) in the period between December 1, 2010, and February 15, 2011. A referendum can be held in the interim if deemed appropriate by USDA. Among the recent amendments to the order are revisions to the PCC's nomination procedures, which require a transition to mail balloting. Ballots for the 2007-09 term of office were mailed to growers in January 2007. The PCC believes that receiving both the nomination ballots and the continuance referenda ballots during this transitional period would confuse growers, who would then be less likely to return any of the ballots. The committees expect that temporary suspension of the continuance referendum will minimize confusion and maximize grower participation in both the committee nominations and the continuance referendum. After this initial transitional period, biennial committee nominations should take place earlier in the year and are not expected to overlap with scheduled continuance referendum periods. Final Regulatory Flexibility Act Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service

(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 150 handlers of nectarines and peaches who are subject to regulation under the order and approximately 800 growers of these fruits in the regulated area. Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural growers are defined as those having annual receipts of less than $750,000. The majority of California nectarine and peach handlers and growers may be classified as small entities. The committees' staff has estimated that there are fewer than 26 handlers in the industry who could be defined as other than small entities. For the 2005 season, the committees' staff estimated that the average handler price received was $10.00 per container or container equivalent of nectarines or peaches. A handler would have to ship at least 600,000 containers to have annual receipts of $6,000,000. Given data on shipments maintained by the committees' staff and the average handler price received during the 2005 season, the committees' staff estimates that small handlers represent approximately 86 percent of all the handlers within the industry. The committees' staff has also estimated that fewer than 10 percent of the growers in the industry could be defined as other than small entities. For the 2005 season, the committees' staff estimated the average grower price received was $5.25 per container or container equivalent for nectarines and peaches. A grower would have to produce at least 142,858 containers of nectarines and peaches to have annual receipts of $750,000. Given data maintained by the committees' staff and the average grower price received during the 2005 season, the committees' staff estimates that small growers represent more than 90 percent of the producers within the industry. With an average grower price of $5.25 per container or container equivalent, and a combined packout of nectarines and peaches of approximately 38,776,500 containers, the value of the 2005 packout is estimated to be $203,576,600. Dividing this total estimated grower revenue figure by the estimated number of growers

(800)yields an estimated average revenue per grower of about $254,471 from the sales of peaches and nectarines. This rule continues in effect the action that temporarily suspends the provisions in §§ 916.64(e) and 917.61(e), which specify the time period in which continuance referenda should be conducted to determine if growers favor continuance of the nectarine and peach marketing orders, respectively. Pursuant to these provisions, the next continuance referenda are scheduled for the period between December 1, 2006, and February 15, 2007. Authorization to suspend these provisions is provided in §§ 916.64(b) and 917.61(b) of the orders. The committees recommended suspension of these provisions to allow the industry time to evaluate the effects of recent amendments to the marketing orders before voting on continuation of the programs. For instance, several of the amendments were intended to increase industry participation in program activities. Others were intended to modernize the marketing orders' operations to better reflect current industry business practices. Postponing the referenda will give the industry time to operate under the amended orders and determine whether the intended goals were met before the next continuance referenda. The continuance referenda cycles as provided in §§ 916.64(e) and 917.61(e) will resume in the period between December 1, 2010, and February 15, 2011. Referenda can be held in the interim if deemed appropriate by USDA. This action is also expected to decrease the confusion likely to occur if the continuance referenda scheduled for the period between December 1, 2006, and February 15, 2007, are held as scheduled. Implementation of the order amendments required a transition to mail balloting for NAC and PCC nominations in January 2007, which would overlap with the scheduled continuance referenda. Growers could each receive as many as four ballots during the overlapping nominations and referenda periods if they produce both nectarines and peaches. The committees are concerned that the flood of ballots could confuse growers and discourage them from participating fully. Therefore, the committees recommended that the continuance referenda be postponed. After this initial transitional period the biennial committee nominations should take place earlier in the year and are not expected to overlap with scheduled continuance referenda periods. One alternative to this action would be to conduct the referenda as scheduled. However, the committees believe that growers need additional time to evaluate the effectiveness of the amendments that were adopted before voting on continuation of the marketing programs. Postponing the continuance referenda until a later time is expected to provide a better assessment of industry support for the orders. Further, if the continuance referenda were not postponed the referenda period would overlap with the committee nominations period. Voter confusion would likely occur due to the receipt of multiple ballots during that time. The committees were concerned that the confusion would lead to decreased grower participation in both the referenda and the committee nominations. Therefore, USDA has determined that the provisions requiring that continuance referenda be conducted during the period between December 1, 2006, and February 15, 2007, should be temporarily suspended. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. This rule will not impose any additional reporting or recordkeeping requirements on either small or large nectarine or peach handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the committees' meetings were widely publicized throughout the nectarine and peach industry and all interested persons were invited to attend the meetings and participate in committee deliberations. Like all committee meetings, the August 31, 2006, meetings were public meetings and all entities, both large and small, were able to express their views on this issue. An interim final rule concerning this action was published in the **Federal Register** on December 28, 2006. The committees posted the rule on their Web site. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 30-day comment period which ended January 29, 2007. One comment supporting the proposal was received. The commenter cited more time to evaluate the effects of recent amendments to the order and reduced confusion for committee nominations as justification for temporarily suspending the provisions for continuance referenda. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the committees' recommendations, and other information, it is found that the order provisions suspended by this action no longer tend to effectuate the declared policy of the Act for the 2006-07 period. Accordingly, we are finalizing the interim final rule, without change, as published in the **Federal Register** (71 FR 78042, December 28, 2006). List of Subjects 7 CFR Part 916 Marketing agreements, Nectarines, Reporting and recordkeeping requirements. 7 CFR Part 917 Marketing agreements, Peaches, Pears, Reporting and recordkeeping requirements. PART 916—NECTARINES GROWN IN CALIFORNIA PART 917—FRESH PEARS AND PEACHES GROWN IN CALIFORNIA Accordingly, the interim final rule amending 7 CFR parts 916 and 917, which was published at 71 FR 78042 on September 28, 2006, is adopted as a final rule without change. Dated: March 9, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-4662 Filed 3-14-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 490 RIN 1904-AB67 Alternative Fuel Transportation Program; Replacement Fuel Goal Modification AGENCY: Office of Energy Efficiency and Renewable Energy (EERE), Department of Energy (DOE). ACTION: Final rule. SUMMARY: DOE is publishing this final rule pursuant to the Energy Policy Act of 1992 (EPAct 1992). DOE is extending the EPAct 1992 goal of achieving a production capacity for replacement fuels sufficient to replace 30 percent of the projected U.S. motor fuel consumption (Replacement Fuel Goal) to 2030. DOE determined through its analysis that the 30 percent Replacement Fuel Goal cannot be met by 2010, as established in section 502(b)(2)(B). DOE has determined that the 30 percent goal can be achieved by 2030. DATES: *Effective Date:* This rule is effective June 1, 2007. FOR FURTHER INFORMATION CONTACT: To request a copy of this Final Rule notice or arrange on-site access to paper copies of other information in the docket, or for further information, contact Mr. Dana V. O'Hara, Office of Energy Efficiency and Renewable Energy (EE-2G), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0121;

(202)586-9171; *regulatory_info@afdc.nrel.gov* ; or Mr. Chris Calamita, Office of the General Counsel, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0121;

(202)586-9507. Copies of this final rule and supporting documentation for this rulemaking will be placed at the following Web site address: *http://www1.eere.energy.gov/vehiclesandfuels/epact/private/index.html* . Interested persons may also access these documents using a computer in DOE's Freedom of Information

(FOI)Reading Room, U.S. Department of Energy, Forrestal Building, Room 1E-190, 1000 Independence Avenue, SW., Washington, DC 20585-0121,

(202)586-3142, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: I. Introduction II. Background A. Replacement Fuel Program B. Replacement Fuel Goals C. Definitions D. Previous Review of Goals E. Previous Rulemakings and Court Order F. Notice of Proposed Rule

(NOPR)for the Replacement Fuel Goal III. Comments A. Comments Received B. Discussion of Comments C. Assessment of Comments IV. Determination that the Congressional Goals are Unachievable V. Goal Modification Analysis A. Approach B. Building Blocks C. Replacement Fuel Scenarios D. DOE's VISION Model Analysis E. Annual Energy Outlook

(AEO)2007 Results F. Additional Reports G. Other Issues VI. Modified Goal A. 30 Percent by 2030 B. Interim Goal VII. Regulatory Review A. Review under Executive Order 12866 B. Review under Regulatory Flexibility Act C. Review under the Paperwork Reduction Act D. Review Under the National Policy Act of 1969

(NEPA)E. Review Under Executive Order 12988 F. Review Under Executive Order 13132 G. Review of Impact on State Governments—Economic Impact on States H. Review of Unfunded Mandates Reform Act of 1995 I. Review of Treasury and General Appropriations Act, 1999 J. Review of Treasury and General Appropriations Act, 2001 K. Review Under Executive Order 13175 L. Review Under Executive Order 13211 M. Congressional Notification VIII. Approval by the Office of the Secretary I. Introduction On September 19, 2006, DOE published a notice of proposed rulemaking

(NOPR)announcing its proposed determination that the EPAct 1992 (Pub. L. 102-486) Replacement Fuel Goal of 30 percent by 2010 is not achievable and announcing its proposal to extend the time for achieving the 30 percent replacement fuel production capacity goal to 2030. 71 FR 54771, Sept. 19, 2006. EPAct 1992, section 502(a) directed DOE to establish a replacement fuel program. (42 U.S.C. 13252(a)) The purpose of this program is to “promote the replacement of petroleum motor fuels with replacement fuels to the maximum extent practicable.” (Id., emphasis added.) The focus of this program, as indicated in section 502(b)(2), is on expanding replacement fuels production capacity. (42 U.S.C. 13252(b)(2)) Further, section 502(b)(2) specifies an interim Replacement Fuel Goal of producing sufficient replacement fuels to replace 10 percent by 2000 of the projected consumption of motor fuels in the United States and a final goal of 30 percent by 2010. (42 U.S.C. 13252(b)(2)(A) and (B)) Under section 504, DOE was tasked with evaluating these goals and if DOE finds the goals to be unachievable, then DOE is directed to modify the goals so that they are achievable. (42 U.S.C. 13254(a) and (b)) In modifying the goals DOE can either modify the goal percentage or timeframe or both. (42 U.S.C. 13254(b)) In evaluating and modifying the goals, DOE must balance considerations in order to establish goals that are “achievable.” (42 U.S.C. 13254(b)) The Replacement Fuel Goals must promote replacement fuels to the “maximum extent possible” while remaining technologically and economically feasible. (42 U.S.C. 13254(a) and (b)(2)) The revised goal adopted today meets these requirements, for several reasons. First, DOE based its analysis on the best information available, from published and peer-reviewed sources. In particular, much of DOE's analysis was based on the Energy Information Administration's

(EIA)Annual Energy Outlook

(AEO)2005 through 2007. Second, DOE's analysis generally was based on the current budget and policy framework, under which many technologies show reasonable potential for success and market penetration. Thus, the analysis assumed virtually no major new policies or funding initiatives beyond those already in place. Third and last, the modified goal balances the minimum and maximum projected replacement fuel production capacities from several reasonable scenarios. In the NOPR, DOE evaluated four scenarios, which identified projected replacement fuel capacities of 8.65 percent, 17.84 percent, 35.25 percent, and 47.06 percent, by 2030. (Updated analyses conducted in this final rule resulted in the first and third of these becoming 7.38 percent and 33.13 percent, respectively.) These projections reflect considerations of numerous variables including oil prices, technological breakthroughs, and market acceptance. The goal proposed by DOE fell in the mid-range among these scenarios. Also, the proposed goal did not rest upon a single technology, but instead relied on a portfolio of options. Explicit in this approach is the assumption that not all of the technologies will achieve the same measure of success; some will be more successful than others. Similarly, the proposed goal did not rely on the most advantageous market conditions. Therefore, DOE determined that the proposed goal would meet the requirement to balance the objective of section 502(a) to promote replacement fuels to the “maximum extent practicable” and the section 504(b) requirement that the Replacement Fuel Goal be “achievable.” (42 U.S.C. 13252(a) and 13254(b)) In today's Final Rule, DOE determines that the EPAct 1992 goal of establishing sufficient replacement fuel production capacity to replace 30 percent on an energy equivalent basis of all U.S. motor fuel by 2010 is not achievable. This determination is based on a similar evaluation of the projected U.S. production capacity of replacement fuels as was presented in the NOPR. 71 FR 54711. Further, today's Final Rule extends the 30 percent Replacement Fuel Goal out to 2030 based on an analysis similar to that presented in the NOPR and discussed further below. Today's Final Rule complies with DOE's obligation under section 504(b) of EPAct 1992 to “establish goals that are achievable, for the purposes of this title.” (42 U.S.C. 13254(b)) Today's final rule also implements the March 6, 2006 order of the U.S. District Court for Northern District of California to prepare and publish a final rule to modify EPAct 1992's replacement fuel production goal for 2010. See *Center for Biological Diversity* v. *U.S. Department of Energy et. al.* , 419 F.Supp. 2d 1166 (N.D. Cal. 2006). DOE reminds interested parties that the Replacement Fuel Goal is an administrative goal guiding the replacement fuel program, including administering the EPAct 1992 title V fleet mandates. It is *not* a program plan, implementation plan, national policy, or any other type of major program for achievement of the Replacement Fuel Goal. In addition, the statutory requirement for the Replacement Fuel Goal is potential production capacity. This does not require the fuel quantities implied by this goal actually be produced or used. II. Background A. Replacement Fuel Program Section 502(a) of EPAct 1992 requires the Secretary of Energy (Secretary) to establish a program to promote the development and use of “domestic replacement fuels” and to “promote the replacement of petroleum fuels with replacement fuels to the maximum extent practicable” (42 U.S.C. 13252(a)). Section 502(a) states: The Secretary shall establish a program to promote the development and use in light duty motor vehicles of domestic replacement fuels. Such a program shall promote the replacement of petroleum fuels to the maximum extent practicable. Such program shall, to the extent practicable, ensure the availability of those replacement fuels that will have the greatest impact in reducing oil imports, improving the health of our Nation's economy and reducing greenhouse gas emissions. (42 U.S.C. 13252(a)) Since 1992, DOE has taken a number of steps to implement EPAct 1992's replacement fuel programs, under the authority provided in titles III, IV and V of the Act. DOE coordinates various aspects of the Federal fleet's efforts to comply with the vehicle acquisition requirements established under section 303 of EPAct 1992. (42 U.S.C. 13212). DOE has also promulgated and implemented regulations and guidance for alternative fuel providers and State government fleets, which are subject to the fleet provisions contained in sections 501 and 507(o) (42 U.S.C. 13251 and 13257(o), respectively). 10 CFR Part 490. DOE also established the Clean Cities initiative, which supports public and private partnerships that deploy alternative fueled vehicles

(AFVs)and build supporting infrastructure. Clean Cities works closely with both voluntary and regulated fleets in specific geographic areas, to bring together the necessary “critical mass” of demand for alternative fuels to support expansion of the refueling infrastructure. In addition, DOE conducts research and development on replacement fuels production and utilization technologies in conjunction with other Federal agencies (such as the U.S. Department of Agriculture (USDA)), States, private industry, and universities. All of these programs work together to increase the production and utilization of replacement fuels and improve the efficiency of vehicles. In particular, the regulatory fleet programs have been successful in moving fleets covered under EPAct 1992 toward the use of AFVs and alternative fuels and reducing the use of petroleum fuels. The regulatory fleet programs established under EPAct 1992 have seen extremely high levels of compliance. Nearly all individual Federal agencies have met their AFV acquisition requirements, and the Federal fleet as a whole has exceeded the required 75 percent acquisition level for the last four years. Among State and alternative fuel provider fleets, compliance has also been high and DOE has been able to work out nearly all the relatively few instances of deficient acquisitions with the involved fleets, either through the fleets purchasing credits or agreeing to acquire additional AFVs in future years. Original equipment manufacturers

(OEMs)have expanded the number and type of AFV models offered, mostly due to the demand from EPAct regulated fleet programs, regulatory incentives (Corporate Average Fuel Economy

(CAFE)credits), and coordinated voluntary activities (Clean Cities). In model year 1993, OEMs were only offering a handful of different AFVs models. The availability of models and fuel types has increased substantially over the past decade. During model year 2006, there were over 20 light-duty fuel/vehicle model combinations available (with more models promised over the next several years). Virtually all of these were E85 flexible fuel vehicles (FFVs). Overall, there are now on the order of one million FFVs manufactured annually in the U.S., largely to take advantage of the CAFE benefits. At the same time, the regulated fleets do acquire many of these vehicles each year. The Replacement Fuel Program efforts have also assisted in expanding the infrastructure for alternative fuels. In 1992 when EPAct was passed, there were not that many alternative fuel refueling stations in operation (approximately 3,600) and nearly all were for propane. Today, there are approximately 5,400 alternative fuel refueling stations in the U.S., including over 1,000 E85 stations in operation, with several hundred coming on-line each year over past few years. There are also many more compressed natural gas

(CNG)stations than in 1992, although this number has begun to decrease slightly in the last few years as OEM offerings have dwindled. (For the current number and location of alternative fuel refueling stations, visit the Alternative Fuel Data Center

(AFDC)station locator, *http://www.eere.energy.gov/afdc/infrastructure/refueling.html* .) This overall growth in stations has been primarily through the demand generated through the regulated fleets and related voluntary efforts under Clean Cities. The number of alternative fuel refueling stations remains small when compared to the 180,000 total refueling stations Nationwide, but is projected to continue increasing. In the State of the Union address in January 2006, the President announced the Advanced Energy Initiative (AEI), which focuses on increasing the use of non-conventional fuels like replacement fuels in all sectors of the U.S. economy, with a central focus on the transportation sector. AEI sets out an aggressive course for reducing the Nation's dependence on foreign petroleum, setting a national goal of replacing more than 75 percent of the U.S. imports from foreign sources by 2025. AEI emphasizes technology developments as the key to reducing energy dependence, including several of the same technologies such as efficiency improvements, biofuels, and hydrogen. These appear under the portion of the Initiative focused on “Changing the way we fuel our vehicles.” AEI is available on the White House Web site at the following location: *http://www.whitehouse.gov/stateoftheunion/2006/energy/* . On January 23, 2007, the President, in the State of the Union Address, proposed replacing 20 percent of the projected gasoline usage in 10 years (“Twenty in Ten” initiative). Twenty in Ten builds on the foundation established by the AEI from the previous year's State of the Union Address with two major elements relevant to today's final rule. The first element is to increase the use of alternative fuels to 35 billion gallons in 2017, reducing projected gasoline consumption by 15 percent, through advancements in many fields including cellulosic ethanol, butanol, and biodiesel. In the second element of Twenty in Ten, the President has asked Congress to give the Administration authority to reform the fuel efficiency system for passenger cars, as was recently done for light trucks and sport utility vehicles (SUVs). It is estimated that the projected gains in mileage for passenger cars could save another 5 percent of our projected gasoline usage in 2017. The Twenty in Ten initiative, which sets a goal for 2017, is consistent with the Replacement Fuel Goal adopted today. However, there are several notable differences. First, DOE notes that the Twenty in Ten initiative relates to projected gasoline consumption, whereas today's final goal relates to projected gasoline and diesel fuel consumption. Second, the Replacement Fuel Goal is established in terms of energy equivalency, where as the Twenty in Ten initiative is in terms of absolute volume. Third, while the Twenty in Ten initiative emphasizes the same elements as the Replacement Fuel Goal, the Twenty in Ten initiative is more aggressive than the revised goal in terms of assumptions of increased fuel efficiency of light trucks and passenger cars and increased use of renewable and alternative fuels to replace a significant portion petroleum usage. 1 1 The President's initiative notes that given the changing nature of the marketplace for both cars and light trucks, the Secretary of Transportation would determine in a flexible rulemaking process the *actual* fuel economy standard and accompanying fuel savings. Additionally, under the Twenty in Ten initiative the EPA Administrator and the Secretaries of Agriculture and Energy will have authority to waive or modify the required levels of alternative and renewable fuel use if they deem it necessary, and the new fuel standard will include an automatic “safety valve” to protect against unforeseen increases in the prices of alternative fuels or their feedstocks. The more aggressive components of the Twenty in Ten initiative are based on policy and legislative actions proposed by the President that were not considered in today's final rule. The final rule generally considered only policies and programs currently in place, and therefore the policies proposed in the Twenty in Ten initiative were not considered in today's final rule. DOE intends to continue monitoring the Twenty in Ten initiative as policies and programs begin to develop, and will determine if the Replacement Fuel Goal requires additional modification. The Twenty in Ten initiative is available on the White House Web site at: *http://www.whitehouse.gov/stateoftheunion/2007/initiatives/energy.html* . B. Replacement Fuel Goals As previously discussed, section 502(a) requires DOE to implement a replacement fuel program. Under such program the Secretary is required to review appropriate information and estimate the production capacity for replacement fuels and AFVs. The Secretary also has to determine the technical and economical feasibility of achieving the capacity to produce on an energy equivalent basis, 10 percent of the projected motor fuel in the U.S. in 2000 and 30 percent in 2010. Section 502(b) established production goals for replacement fuels, and states:

(b)Development Plan and Production Goals—[T]he Secretary * * * shall review appropriate information and—

(2)Determine the technical and economic feasibility of achieving *the goals of producing sufficient replacement fuels* to replace, on an energy equivalent basis—

(A)At least 10 percent by the year 2000; and

(B)At least 30 percent by the year 2010, of the projected consumption of motor fuel in the United States for each such year, with at least one half of such replacement fuels being domestic fuels[.] (42 U.S.C. 13252(b)(2)) (Emphasis added.) Thus section 502(b) sets two goals, an interim goal of developing sufficient U.S. domestic replacement fuel production capacity to replace 10 percent of projected total motor fuel use by the year 2000, and a final goal of 30 percent by the year 2010, with at least one half of such replacement fuels being domestic fuels. (42 U.S.C. 13252(b)(2)(A) and (B)) While the goals in section 502(b) and the programs established under section 502(a) are related, the goals are not mandates for the programs. Today's review of the Congressional goals is in the context of the section 502(a) programs. Section 502(b) states that, “under the programs established under subsection (a), the [DOE] * * * shall review appropriate information and” evaluate the achievability of the goals. (42 U.S.C. 13252(b)) Further, in the context of the section 502(a) programs, DOE must “determine the most suitable means and methods of developing and encouraging the production, distribution, and use of replacement fuels and alternative fueled vehicles[.]” (42 U.S.C. 13252(b)(3)) As discussed above, DOE has established various programs to implement the goals of sections 502(a) and (b). However, no where in the text of section 502 are the goals established as mandates for the section 502(a) programs. Pursuant to section 504 of EPAct 1992, DOE is required to review these goals periodically and publish the results and provide opportunities for public comments. (42 U.S.C. 13254(a)) If DOE determines that the goals are not achievable, section 504(b) directs DOE to modify, by rule, the percentage requirements and/or dates, so that the goals are achievable. (42 U.S.C. 13254(b)) DOE has determined that in order for a goal to be achievable, there must be a reasonable expectation that the desired level of replacement fuels production capacity will develop within the relevant timeframe. While DOE has authority to modify the section 502(b) goals, DOE's authority to establish requirements under the replacement fuel and alternative fuel programs is limited. Section 504(c) provides DOE the authority to issue regulations if the achievement of the Replacement Fuel Goals contained in section 502(b) are likely to lead to “a significant and correctable failure” to meet the overall program goals established by section 502(a). (42 U.S.C 13254(c)) However, EPAct 1992 does not provide DOE the authority “to mandate marketing or pricing practices, policies or strategies for alternative fuel, or to mandate the production or delivery of such fuels.” (42 U.S.C. 13254(c)) Further, DOE's authority to require the use of alternative fuels is limited. 2 2 Fleets are not required to use alternative or replacement fuel in their AFVs (except for alternative fuel providers and Federal Fleet, which are required by section 501(a)(4) and 303 of EPAct, respectively). C. Definitions The term “ *replacement fuel* ” is defined by EPAct 1992 to mean “ *the portion of any motor fuel* that is methanol, ethanol, or other alcohols, natural gas, liquefied petroleum gas, hydrogen, coal derived liquids, fuels (other than alcohols) derived from biological materials, electricity (including electricity from solar energy), ethers,” or any other fuel that the Secretary determines meets certain statutory requirements. (42 U.S.C. 13211(14)) (Emphasis added.) The term “ *alternative fuel* ” is defined to include many of the same types of fuels (such as ethanol, natural gas, hydrogen, and electricity), but also includes certain “mixtures” of petroleum-based fuels and other fuels as long as the “mixture” is “substantially not petroleum.” (42 U.S.C. 13211(2) and 10 CFR 490.2) Thus, a certain mixture might constitute an “alternative fuel,” but only the portion of the fuel that falls within the definition of “replacement fuel” would actually constitute a “replacement fuel.” For example, M85, a mixture of 85 percent methanol and 15 percent gasoline, would, in its entirety, constitute an “alternative fuel,” but only the 85 percent that was methanol would constitute “replacement fuel.” Also by way of example, gasohol (a fuel blend typically consisting of approximately 10 percent ethanol and 90 percent gasoline) would not qualify as an “alternative fuel” because it is not “substantially not petroleum,” but the 10 percent that is ethanol would qualify as “replacement fuel.” Section 301(12) of EPAct 1992 defines “motor fuel” as “any substance suitable as fuel for a motor vehicle.” (42 U.S.C. 13211(12)) Moreover, the term motor vehicle is defined in EPAct 1992 section 301(13), through reference to 42 U.S.C. 7550(2), as a self-propelled vehicle that is designed for transporting persons or property on a street or highway. (42 U.S.C. 13261(13)) The goals established in section 502(b)(2) require that DOE evaluate the capacity of producing sufficient replacement fuels to offset a certain percentage of U.S. “motor fuel” consumption. Therefore, DOE, for the purposes of Title V of EPAct 1992, has interpreted the term motor fuel to include all fuels that are used in motor vehicles. This includes fuels used in light-, medium-, and heavy-duty on-road vehicles. 71 FR 54771 (September 19, 2006). D. Previous Review of the Goals Section 504(a) of EPAct 1992 requires DOE to periodically “examine” the goals established in section 502(b)(2) and determine whether they should be modified. (42 U.S.C. 13254(a)) The examination of the goals is to be made taking into account the program goals stated under section 502(a), namely to promote the development and use of “domestic replacement fuels” and to “promote the replacement of petroleum fuels with replacement fuels to the maximum extent practicable.” (42 U.S.C. 13254(a)) As an initial matter, DOE notes that it is unaware of any analysis or technical data that was used by Congress in 1992 as a basis for setting the 10 percent and 30 percent Replacement Fuel Goals set forth in EPAct 1992. DOE is also not aware of any affirmative determination by Congress or by any agency that, at the time they were set, the statutory goals were explicitly considered achievable. Thus, DOE has treated these replacement fuel production capacity levels as the starting point for future goal analyses. Regardless of the original rationale for the goals, and as described and discussed below, DOE periodically has evaluated the feasibility of the goals as provided by Congress in EPAct 1992. Several previous efforts were made by DOE to analyze the Replacement Fuel Goal. The first effort was in 1996, as part of the Assessment of Costs and Benefits of Flexible and Alternative Fuel Use in the U.S. Transportation Sector, Technical Report Fourteen: Market Potential and Impacts of Alternative Fuel Use in Light-Duty Vehicles: a 2000/2010 Analysis (U.S. Department of Energy, Office of Policy and Office of Energy Efficiency and Renewable Energy, January 1996, report number DOE/PO-0042), to be referred to as Technical Report 14. The second major attempt by DOE to evaluate the replacement fuel picture was made at the end of the last decade, in the report Replacement Fuel and Alternative Fuel Vehicle Analysis Technical and Policy Analysis, Pursuant to Section 506 of the Energy Policy Act of 1992 (U.S. Department of Energy, Energy Efficiency and Renewable Energy, Office of Transportation Technologies, December 1999 with amendments September 2000), hereinafter section 506 report. The report is available at *http://www.eere.energy.gov/vehiclesandfuels/epact/pdfs/plf_docket/section506.pdf* . The next report to consider the achievability of the Replacement Fuel Goals was the Transitional Alternative Fuels and Vehicles

(TAFV)Model Report. See The Alternative Fuel Transition: Results from the TAFV Model of Alternative Fuel Use in Light-Duty Vehicles 1996-2000 (ORNL.TM2000/168) (September 17, 2000). This report was completed shortly after the section 506 report. It examined multiple pathways toward increased replacement and alternative fuel use. The major difference between the TAFV report and earlier reports is that it used a dynamic transitional model to analyze potential replacement fuel pathways. Many of the earlier studies and analyses used single-period equilibrium models and also assumed no transitional barriers to increased alternative fuel and replacement fuel use. The TAFV report includes a number of scenarios that assume no transitional barriers but it also includes multiple pathways that do include analysis of transitional barriers. The report is available for review at: *http://www.eere.energy.gov/vehiclesandfuels/epact/pdfs/plf_docket/tafv99report31a_ornltm.pdf* . In summary, Technical Report 14, prepared only three years after EPAct 1992's passage, did indicate that the 2010 goal could be achieved, albeit only under several scenarios relying upon extensive policy additions. The section 506 report and TAFV Report both concluded that it would be difficult and unlikely, but not impossible, to achieve the 30 percent EPAct 1992 Replacement Fuel Goal by 2010. In neither of the latter reports, issued in mid to late 2000, did DOE make a determination under EPAct 1992 section 504(b) that the statutory Replacement Fuel Goals were not achievable. If DOE had made such a determination, it would have triggered a statutory obligation to set a new, achievable, Replacement Fuel Goal. Instead, DOE chose to take a “wait and see” approach regarding the need to revise the 2010 goal. A much more detailed discussion on each of the three reports and their conclusions was provided in section III. of the NOPR. 71 FR 54773, Sept. 19, 2006. E. Previous Rulemakings and Court Order Section 507(c) directed DOE to issue an Advanced Notice of Proposed Rulemaking (ANOPR) that, in part, would evaluate the progress toward achieving the Replacement Fuel Goal and assess the adequacy and practicability of the goal. (42 U.S.C. 13257(c)) In response to that directive, DOE issued an ANOPR on April 17, 1998, 63 FR 19372. DOE conducted three public hearings (Minneapolis, Minnesota; Los Angeles, California; and Washington, DC) and solicited written comments from the public on the ANOPR. More than 110 interested parties responded by providing written and oral comments. Comments were received through July 16, 1998. In the ANOPR, DOE requested comments on 23 specific questions covering three broad areas: replacement fuels, fleet requirements, and urban transit buses. Only the first set of questions is relevant to today's rulemaking. A detailed discussion of these comments was previously provided in the NOPR for the Private and Local Government Fleet Determination (68 FR 10320, 10326-10328; March 3, 2003) and a summary of those comments was provided in the Replacement Fuel Goal NOPR. 71 FR 54771, Sept. 19, 2006. Additionally, DOE previously addressed the issue of whether to revise the replacement fuel production goal for 2010 in the context of its determination that an AFV acquisition mandate for private and local government fleets was not necessary. 69 FR 4219 (January 29, 2004). Section 507(e) directs DOE to consider whether a fleet requirement program for private and local fleets is “necessary” for the achievement of the Replacement Fuel Goals. (42 U.S.C. 13257(e)) As part of DOE's decision under that directive, DOE stated in its notice of final rulemaking that a private and local government fleet rule would “not appreciably increase the percentage of alternative fuel and replacement fuel used by motor vehicles.” 69 FR 4220, Jan. 29, 2004. DOE further concluded that “adoption of a revised goal would not impact its determination that a private and local government rule * * * would not provide any appreciable increase in replacement fuel use.” 69 FR 4221, Jan. 29, 2004. DOE, therefore, did not revise the Replacement Fuel Goal at the time but indicated that it would continue to evaluate the need to revise the statutory goal in the future. Subsequent to the publication of the January 29, 2004 final rule, DOE was sued in Federal court by the Center for Biological Diversity

(CBD)and Friends of the Earth for failing to impose a private and local government fleet acquisition mandate and for not revising the replacement fuel production goal for 2010 as part of its determination. On March 6, 2006, the U.S. District Court for the Northern District of California vacated DOE's final determination regarding the private and local government fleet mandate and ordered DOE to revise the replacement fuel production goal for 2010. (See *Center for Biological Diversity* , 419 F.Supp. 2d 1166.) In its order, the Court directed DOE to prepare notices of proposed rulemaking and final rules on both the Replacement Fuel Goal for 2010 and the private and local government fleets determination. (Id. at 1171.) F. NOPR for the Replacement Fuel Goal DOE proposed to revise the 30 percent by 2010 goal by extending the goal date to 2030. 71 FR 54771, Sept. 19, 2006. DOE based the proposed revised goal on an analysis which focused on projected production capacity for replacement fuels through 2030. DOE based the proposal on four reference cases, which were based on three building blocks. The three building blocks are:

(1)The reference case projected by EIA in AEO 2006;

(2)the high price case presented in AEO 2006; and

(3)projections from the DOE programs conducting research and development on replacement fuel and vehicle technologies. These building blocks provide the basis for the reference cases which project varying levels of potential replacement fuel production capacity. The four scenarios relied upon in the NOPR analysis were:

(1)The reference case projected by EIA in AEO 2006;

(2)the high price scenario presented in AEO 2006;

(3)a combination of the AEO 2006 reference case with achievement of program goals (designated as program developments); and

(4)a combination of the AEO 2006 high price case with program developments. The different scenarios represent the potential bounds for proposing a revised replacement fuel production goal under sections 502 and 504 of EPAct 1992. Under a 2030 timeframe, these scenarios projected a replacement fuel production capacity as a percent of on-road fuel use of 8.65 percent, 17.84 percent, 35.25 percent, and 47.06 percent, respectively. 71 FR 54782-3, Sept. 19, 2006. As presented in the NOPR, DOE proposed to maintain the 30 percent goal and move the goal date out 20 years, to 2030. 71 FR 54785, Sept. 19, 2006. Given the uncertainties inherent in projecting fuel prices and technology achievements, DOE tentatively determined that a goal slightly above the midpoint of the projections of the four reference cases represented an “achievable” goal as required by section 504(b). (42 U.S.C. 13254(b)) A detailed discussion of the building blocks and the reference cases is provided in section V. of the NOPR. 71 FR 54776, Sept. 19, 2006. Today's final rule relies on essentially the same analysis framework, with updated projections by the EIA. The analysis framework and results are summarized below. III. Comments A. Comments Received The NOPR solicited comments on the proposed Replacement Fuel Goal modification. Written comments were received from a total of sixteen organizations. This included the following four specific organizations providing substantive comments: • The American Automotive Leasing Association (AALA), • The CBD/Friends of the Earth, • The National Association of Fleet Administrators (NAFA), and • NGVAmerica. The other twelve sets of comments were from Clean Cities coordinators or stakeholders, or were organizations that were not identified specifically as related to Clean Cities, but which provided similar type or level of comments to those received from the Clean Cities organizations. Thus, for most of the discussion below, these Clean Cities and related comments were grouped together. These organizations included: • Central Texas Clean Cities. • City of Victoria. • DieselGreen/Austin Biodiesel Cooperative. • Granite State Clean Cities. • Greater New Haven Clean Cities Coalition, Inc. • Greater New Orleans Regional Planning Commission. • Kansas City Clean Cities. • Maine Clean Communities. • Norwich Clean Cities. • Public Solutions Group, Ltd./Central Texas Clean Cities. • St. Louis Clean Cities. • Synetek Research Co. It should be noted that within these comments, most Clean Cities organizations utilized a common framework for their comments, relying upon shared key points. Within these organizations, however, two (Granite State Clean Cities and Maine Clean Communities) provided somewhat more expansive and detailed comments. On October 3, 2006, DOE held a hearing at DOE headquarters in Washington, DC. Approximately one dozen people attended, including representatives from AALA, NGVAmerica, several media organizations, and DOE program staff and related personnel. In addition, one member of the general public also attended. A list of attendees is available at *http://www1.eere.energy.gov/vehiclesandfuels/epact/pdfs/plg_docket/hearing_attendee_list.pdf* . Program technical staff presented a short overview of the rulemaking process (available at *http://www1.eere.energy.gov/vehiclesandfuels/epact/pdfs/plg_docket/ohara_presentation.pdf* ). No entities prepared or delivered detailed testimony at this hearing. Discussions during the hearing were relatively short and of a much more general nature with all points raised also included within the written comments received. Therefore, no separate discussion of the comments from the hearing is necessary. The transcript from this hearing is available at *http://www1.eere.energy.gov/vehiclesandfuels/epact/pdfs/plg_docket/hearing_transcript.pdf* . Due to technical difficulties in receiving comments on the NOPR electronically, on January 18, 2007, DOE published a limited re-opening of the comment period; 72 FR 2212, Jan. 18, 2007. This notice re-opened the comment period until January 31, 2007. During this additional period, one additional set of comments was received from the National Propane Gas Association (NPGA). B. Discussion of Comments In order to address the comments in a clear manner, they were split out into several basic categories. These include: • Approach—comments concerning DOE's approach to addressing its requirements concerning evaluating and modifying the Replacement Fuel Goal; • Goal—comments concerning the level and time-frame for the proposed modified goal, schedule for review of the modified goal, and whether an interim goal was necessary; • Assumptions—comments concerning the detailed assumptions made by DOE in its analysis; and • Programmatic/DOE's Role—comments concerning possible programs or DOE's overall role concerning achievement of the Replacement Fuel Goal. In addition to identifying the comments in each section below, the discussion of the final analysis further addresses, where appropriate, specific issues raised by commenters. Approach One commenter indicated that DOE's interpretation of “achievable” was reasonable, and that the current goal needed to be modified. This commenter also indicated that DOE was correct to focus on more than just a single technology, and on the entire fuel supply chain. Another commenter also indicated that DOE should base the revised goal upon reductions across the entire transportation sector, and not just regulated fleets. In response, DOE reiterates that it did base its approach upon a number of technologies and fuels, and did look at fuel savings and substitution within the entire on-road transportation sector. As indicated in the NOPR, DOE looked at the entire highway transportation sector in determining the Replacement Fuel Goal. DOE also looked at technologies such as hybrids, fuel cell vehicles, advanced energy efficient vehicles, and dual-fuel/FFVs. The fuels used in the analysis included ethanol, biodiesel, natural gas, coal to liquids, gas to liquids, and hydrogen. 71 FR 54771, Sept. 19, 2006. Different opinions were expressed concerning DOE's approach with respect to determining if the Private and Local Government Fleets Rule is necessary. One commenter specifically indicated its satisfaction with the approach taken by DOE, while another specifically indicated its objection. A third commenter simply cautioned DOE to resist the urge to set a new Replacement Fuel Goal level solely for the purpose of justifying a Private and Local Government Fleet Rule. This same commenter spent the majority of its comments stating why such a fleet rule is wrong. In response, DOE is focused only on the development of an achievable goal that meets the requirements of sections 502(a) and 504(b) of EPAct 1992 in this rule. DOE is not predisposed to any outcome beyond setting the goal. The Private and Local Government Fleet Rule determination is a separate rulemaking process from the Replacement Fuel Goal modification, and DOE is continuing to treat these as separate processes. The fleet rule determination will not be commenced until the revised Replacement Fuel Goal is set, and the determination process will specifically include an opportunity for comment on a proposed determination prior to development of the final determination. Goal/Schedule/Interim Goal Two specific commenters plus a number of the Clean Cities and related organizations objected to what they stated is a 20-year delay in the goal, from 2010 to 2030. They indicated that a more progressive goal is needed, and one that has a stronger focus upon program development and implementation. Similarly, one of the individual commenters indicated that it did not understand why the inability to meet the goal in 2010 permits a 20-year delay. While a number of these commenters indicated that they wanted to see DOE set a “higher goal,” few offered concrete proposals as to what that goal should be and how it would be achievable. Two Clean Cities coordinators did specifically suggest that DOE select one of the more accelerated paths included within its NOPR analysis, such as utilizing one of the “program development” cases. At the same time, one commenter felt that DOE's proposed goal was reasonable, based upon comparison to similar actions of States and several foreign governments. In response to commenters requesting a more aggressive goal than what was proposed, DOE notes that it has a statutory obligation to balance certain considerations in order to establish goals that are “achievable.” (42 U.S.C. 13254(b)) The replacement fuel production capacity goals must promote replacement fuels to the “maximum extent possible” while at the same time remaining technologically and economically feasible. (42 U.S.C. 13254(a) and (b)(2)) DOE interprets “achievable” to mean that there is a reasonable expectation of reaching the goal in the time period specified. DOE considered the various options within the current budgetary and policy framework and selected what DOE determined is a goal which is set at the “maximum extent practical” and still “achievable.” The current EIA baseline projection for replacement fuels by 2030 is only 7.38 percent. Today's analysis indicated that if all DOE's technical programs were as successful as predicted and the technologies were fully adopted in the marketplace, the maximum replacement fuel that could be achieved is 33 to 47 percent. To expect DOE to be 100 percent successful in its development programs is unreasonable. By their very nature, many of the research programs are high risk. One individual commenter and several Clean Cities and related organizations generally claimed that there are significant environmental, energy security, and economic impacts in delaying the goal. However, the commenters did not provide specific estimates of these potential impacts or how moving the goal to 2030 would result in such impacts. One individual commenter and two Clean Cities coordinators specifically called for DOE to set an interim goal. DOE notes that in the Court's order directing DOE to revise the Replacement Fuel Goal, the Court focused almost entirely upon the 2010 goal. ( *Center for Biological Diversity* , 419 F.Supp. 2d 1166.) Further, the Court clearly directed DOE to revise the “goal.” ( *Center for Biological Diversity* v. * U.S. Dept. of Energy et. al. * , No. 05-cv-01526-WHA Document 54 p. 2 (N.D. Cal. March 30, 2006) ( *Order re Timing of Relief* )) The Court's use of “goal” in the singular provides direction to revise the 2010 goal, and DOE developed the NOPR accordingly. To the extent that an “interim goal” allows the public to understand the trajectory of the replacement fuel production necessary to meet the 2030 goal, DOE's analysis developed data points at 2020, 2025 and 2030 for all four scenarios evaluated. The charts provided below indicate a range of percentages which provide benchmarks for evaluating progress towards the achieving the goal. Moreover, the annual publication of EIA analyses of replacement fuel contributions in the Annual Energy Review

(AER)and AEO provides an indication of progress. For example, the replacement fuel production capacity levels were estimated in the range between approximately 6 and 17 percent in the NOPR for 2020. As updated in the analysis for this final rule, the two 2020 reference case-based scenarios project a replacement fuel capacity between 5 and 14 percent. DOE and the public will be able to compare the AEO projections and AER data to the Replacement Fuel Goal analysis presented in today's final rule and the NOPR. Two commenters specifically requested that DOE provide a specific schedule for reviewing the Replacement Fuel Goal in the future. These commenters stated that the information resulting from such reviews should be published more frequently. The statutory requirement in section 504(a) is for periodic review. As discussed above, EIA publishes the AEO report annually, which estimates the replacement fuel production capacity of the U.S. DOE will review the annual AEO reports and based in part on these reports determine whether a more comprehensive review of the Replacement Fuel Goal is warranted. Finally, a commenter specifically indicated that “DOE should note that future reviews may also result in modifying the goal to reduce the timeframe or increase the replacement fuel percentage if achievable in order to effectuate the intent of the Act and the Replacement Fuel Program.” DOE acknowledges that if future reviews show results more or less favorable to achievement of the goal, then DOE could increase/decrease the level or accelerate/push out the date. DOE has no pre-conceived concepts as to what any future reviews of progress toward the goal will show. The statutory requirement of the periodic review is for DOE to evaluate the goal and determine if the goal is practical and achievable. If the goal is not achievable, DOE has the responsibility to develop an achievable goal that is “technically and economically feasible” and promotes replacement fuels to the “maximum extent practicable” in a specific timeframe, whatever that may be. Analysis Assumptions One individual commenter and two Clean Cities coordinators stated that the future oil prices upon which DOE based its analyses should have been much higher. Therefore, these commenters asserted, the decision on replacement fuel penetration levels should have been closer to the EIA high price case, or even based on prices higher than EIA's high price case. In response, DOE determined that it was inappropriate to assume significantly higher fuel prices than those presented in the AEO reports without a sufficient basis upon which to determine such prices. A case in point: there has been a significant drop in the cost of crude oil since the publication of the NOPR on September 19, 2006. Last summer crude prices were over $70 per barrel, but prices had fallen below $50 per barrel by late January, 2007. (EIA Petroleum Navigator at *http://tonto.eia.doe.gov/dnav/pet/pet_pri_wco_k_w.htm* ) In addition, EIA analysis from AEO Reports indicates that higher oil prices do encourage more replacement fuel usage and increased energy efficiency. However, higher oil prices also cause drivers to use less petroleum overall. This coupled with the increased use of replacement fuels and increased energy efficiency can cause oil prices to fall. DOE is required to develop a goal that is achievable. Commenters did not provide any data to justify reliance on abnormally high oil prices for a sustained period or years. Therefore, DOE based its analysis upon EIA analyses. If projections for future prices increase significantly, DOE will review the annual AEO and based in part on these reports determine whether further review of the Replacement Fuel Goal is warranted. One commenter indicated that it felt DOE underestimated the contribution of conservation in the overall analysis. In response, DOE did address conservation, and believes that conservation was given a sizable role in both of the program development cases. The program development cases included energy efficiency gains from hybrids, advanced diesels, and fuel cell vehicles. The EIA data only takes into account the annual energy efficiency gains that vehicles have gained historically, typically around 1.2 percent. As presented in the NOPR, DOE analyzed two cases that incorporated savings of approximately 3 million barrels per day in 2030, above and beyond any conservation efforts already taken into account in EIA data. One commenter stated that DOE's assertion that research and development programs will accomplish their goals is unrealistic, and thus contradicts DOE's approach to “achievable.” DOE notes that it used approximately a 50 percent, not 100 percent, success rate for all of DOE's programs in arriving at the final Replacement Fuel Goal. As reflected in the NOPR, estimates for the maximum contributions from successful commercialization of technologies resulting from DOE research and development to the overall goal by 2030 were no more than 30 percent replacement fuel. The two EIA base cases (reference and high price (NOPR Tables 1 and 2)) projected levels of approximately 9 to 18 percent replacement fuel. Adding approximately half of the DOE research and development technologies to the EIA base cases results in projected levels of approximately 24 to 33 percent replacement fuel. Therefore, DOE proposed in the NOPR a goal within the range of the identified scenarios, and did not rely upon DOE research and development programs achieving all of their goals. One commenter plus a number of Clean Cities-related organizations specifically questioned the Department's exclusion of plug-in hybrid electric vehicles (PHEVs) as inadequate, and disagreed with projections showing that the contribution from electricity would not grow significantly during the period of the analysis. No commenter submitted any data supporting a more concrete role for these vehicles, or what their overall effect would be. As stated in the NOPR, DOE has determined that it is premature to specifically evaluate this new technology, especially to the level of detail of the analysis done for this action. DOE recognizes that PHEVs offer a significant potential for reducing petroleum use in the U.S. transportation sector. As such, PHEVs were evaluated as part of the total hybrid vehicle market analysis. Modeling used for this analysis indicates that conventional, flex-fuel, and PHEVs as well as fuel-cell hybrids will be vying for the same market segments by 2030. The entire market segment was evaluated and significant gains in fuel efficiency and replacement fuels were indicated. However, DOE does not have sufficient data to evaluate the specific contributions to petroleum reduction attributable to PHEVs. Furthermore, DOE notes that its analysis is based upon replacement fuels competing in the marketplace. Nothing in the 30 percent goal prevents PHEVs from capturing a larger share of the replacement fuel market than is indicated by DOE's analysis. If PHEVs develop quickly and impact the relative contributions of electricity and energy efficiency relied upon in the current analysis, DOE will take notice and determine if the Replacement Fuel Goal requires additional modification. Considerable analysis was done in the NOPR scenario 3 to determine what the vehicle sales would have to be in order to generate a demand for replacement fuel commensurate with a 35 percent Replacement Fuel Goal by 2030. 71 FR 54783. The VISION results are in Figures 5 and 6 in the NOPR. 71 FR 54784. For a level of replacement fuel demand that would be equivalent to the replacement fuel production capacity under a 35 percent by 2030 Replacement Fuel Goal, the VISION model projected that non-conventional light-duty vehicles would comprise 99 percent of new LDV sales in that model year. The breakdown of the LDVs were FFVs—24 percent of new vehicle sales; Hybrids—37 percent of new vehicle sales; Diesels—22 percent of new vehicle sales; Fuel Cell Vehicles—15 percent of new vehicle sales; and other AFVs—1 percent of new vehicle sales. Similarly, two commenters and several Clean Cities-related organizations indicated that they felt the potential from natural gas and gas-to-liquids

(GTL)was underestimated. One of these commenters also raised environmental concerns about GTL. Thus it was unclear whether this particular commenter wanted a greater role shown for this technology or not. In response to the overall concerns about potential for any particular technology, DOE relied upon the best information it had available, relying primarily upon the EIA AEO data. Neither commenter nor the Clean Cities-related organizations submitted specific data on these or other technologies. In general, however, even if the contribution of a particular technology (whether natural gas, GTL, PHEVs, or others) were increased, DOE would anticipate that much of this change might be at the expense of another included technology. As presented above, the total level of replacement fuel usage is relatively fixed. Thus, the gains for one technology will likely be offset by reductions in another technology, as opposed to increasing the number of non-conventionally fueled motor vehicles. Therefore, given that other replacement fuels may have a larger share of the market than our analysis might otherwise indicate, the overall results for replacement fuel production capacity will remain the same. Should better data become available DOE will review it and revise the goal as necessary. One commenter also questioned EIA's projections about coal-to-liquids (CTL), since current oil prices already appear above the level needed for economic parity, but plants have not been built. As discussed in the NOPR, having economic parity now or achieving it only recently does not mean that the plants would already be in place. As DOE indicated in the NOPR, financial investors often need to see current and projected conditions that appear favorable for several years before they are moved to act. Once investment begins, it can be a number of years before any plants are on-line. Today, some of this initial investment appears to be happening, since conditions now appear favorable, but it may be many years before significant contributions are anticipated from this technology. In addition, as shown in section V.E. below, under the updated analysis based upon the AEO 2007, the projected contribution from CTL decreased significantly. One commenter indicated that it was unclear if DOE used Government Performance and Results Act

(GPRA)analyses, or if not, why not. DOE did use GPRA analyses for a number of the program developments technologies, as indicated in the NOPR. 71 FR 54777, 54778, 54781. Two such examples are the energy efficiency gains from the FreedomCAR and Vehicle Technologies

(FCVT)program and in the Hydrogen Fuel Cell and Infrastructure Technologies (HFCIT) Program (commonly referred to as the “Hydrogen Program”) in the building blocks section (V.B.3) of the NOPR. 71 FR 54777. Where current analyses existed for technology programs, they were used. Item D11 in the electronic docket (available at *http://www1.eere.energy.gov/vehiclesandfuels/epact/private/plg_docket.html* ) specifically provides a link to EERE's GPRA analyses for all relevant technology programs. One commenter questioned whether DOE's analysis assumed new Federal incentives for certain fuels, but not for others (particularly natural gas). This commenter also indicated that DOE needed to explain how different fuels react differently to higher prices. Generally, DOE did not assume new incentives or policies that would promote a specific alternative fuel. In the limited instances in which a new policy was assumed, DOE identified its assumptions, which were based upon information received from EIA or the relevant technology programs. One instance in which policies beyond those existing were assumed was for the hydrogen and fuel cell technologies. These technologies were identified as an exception because DOE recognizes that they will need additional support later in getting the technology into the market. Most of the other replacement fuels and technologies are viable in the market or they have or are getting tax breaks, subsidies, or other price supports until they become market viable. In order for fuel cell technologies to have the same opportunities in the market they may require similar types of support as previous technologies as well as potentially new types of assistance. One commenter indicated that DOE did not adequately address the benefits of other Federal, State, local, and private efforts, including other EERE, FCVT, and USDA activities. In particular, this commenter indicated that DOE should include a discussion of other efforts and indicate how the President's AEI fits in. The commenter did not indicate specific programs that should be included in DOE's analysis that would contribute significantly to the Replacement Fuel Goal. It should be noted that DOE did much of what this commenter claims it did not. In particular, the “program developments” scenarios were specifically based upon EERE and FCVT efforts, and DOE did discuss the AEI in section VI.B. of the NOPR. 71 FR 54786. DOE also is working with USDA in development of biofuels especially in the area of cellulosic ethanol. In preparing this final rule, DOE has taken into account the Renewable Fuel Standard

(RFS)from EPAct 2005 and also considered the Twenty in Ten initiative. The same commenter indicated that DOE did not address the utilization side of the equation sufficiently. Again, the Replacement Fuel Goal is a production capacity goal, not a utilization goal. However, DOE recognizes that production and use are related. DOE did look at utilization in the VISION modeling, provided in tables 5 and 6 of the NOPR. 71 FR 54784. Moreover, the commenter failed to provide data for a revised analysis to reflect the commenter's concern. One commenter pointed out perceived discrepancies between the EIA and VISION model analyses concerning the makeup of the LDV market. While DOE acknowledges that these two analyses differ somewhat in their pathways, they are in relative agreement on the overall destination points. DOE analysis looked at the potential capacity to produce replacement fuels as required by section 502(a) and (b). In order to validate that data, a second analysis was performed using a fuel usage model. The VISION model looked at what replacement fuels could be used in what type of vehicles based on available knowledge of the different vehicle technologies. The total replacement fuel figures were very similar even though there were slight variations of the fuel mix and vehicle technologies. These simply show two different paths to the same result, based upon the particular assumptions of their analysts and the mechanisms within the models. DOE is not stating any one specific fuel or technology advancement, or specific set of advancements, has to occur for the Replacement Fuel Goal to be achieved. DOE believes that a portfolio of technologies, some indicated here, as well as possibly some that were not included, are required to achieve any goal. Finally, one commenter took particular issue with DOE's approach to its greenhouse gas

(GHG)analysis. This commenter stated that DOE used the wrong baseline for assessing GHG emissions. The commenter indicated that DOE should have used the levels “the U.S. would have achieved if DOE had implemented Congress's original fuel replacement goals.” In response, DOE believes that the commenter's assertion is incorrect on several counts. First, DOE does not have authority to mandate achievement of the goal. DOE has authority to conduct programs in accordance with the goals, to review the goals, and modify the goals. The commenter's implication that DOE could have mandated achievement of the 30 percent goal by 2010 is therefore incorrect. Second, a GHG analysis as suggested by the commenter would require the establishment of a fictitious baseline based upon a completely fabricated fuel mix that possibly could be used to meet the goal in 2010 whether or not a 2010 goal was ever achievable. Since DOE has found that the goal is unachievable, it does not know what the fuel mix would have been in 2010 if the 30 percent goal had been achieved, which is critical to determining the baseline contribution of GHGs. Without such a breakdown, no such estimate can be made. This commenter further asserted that DOE was required to perform an environmental assessment as part of this rulemaking. As discussed below in section VII, Regulatory Review, DOE has not conducted an environmental assessment, which is consistent with the Court's holding in *Center for Biological Diversity.* (419 F. Supp 2d at 1173.) Programmatic/DOE's Role Three commenters and several Clean Cities-related organizations specifically called for DOE to promote programs or incentives and make recommendations to further the goals of the Replacement Fuel Programs. This Final Rule requires DOE to select a specific goal that is achievable. DOE notes that the Administration is making proposals and recommendations relevant to alternative fuel production and use. The President's 2007 State of the Union Address on January 23, 2007, made two clear and strong recommendations. Twenty in Ten proposed increasing the RFS to 35 billion gallons of renewable and alternative fuel in 2017 and giving Department of Transportation

(DOT)authority to set CAFE standards for passenger vehicles based on vehicle attributes consistent with DOT's recent rule for light-duty trucks. Thus, the President's “Twenty in Ten” initiative contains replacement fuel and energy efficiency as its main elements, which is the same approach employed by the Replacement Fuel Goal established today. In addition, one of the previous commenters cited CAFE standards as an opportunity for DOE to take action. As part of his Twenty in Ten initiative, the President has called for reforms in the CAFE standards. However, concerning CAFE, Congress has limited authority in this area to itself and the DOT, not DOE. While DOT does confer with DOE in this area, Congress has established the authority for CAFE regulations within DOT. (49 U.S.C. 32902). Two commenters called for DOE to establish a replacement fuel program and develop a plan for its implementation. In addition, one of these specifically called for DOE to solicit input from stakeholders concerning measures to advance replacement fuels. In response, DOE notes that the research and development programs provided the data and development plans relied on for the analysis. As for a replacement fuel program under the context of EPAct 1992 (particularly section 502(a)), DOE has, for more than a decade, been conducting a program focused on the replacement of petroleum in the transportation sector. These on-going efforts include activities such as the Federal Fleet requirements, the State and Alternative Fuel Provider Fleets Regulations, and the Clean Cities initiative. As for soliciting input from stakeholders, the NOPR specifically provided opportunity for comment by stakeholders interested in replacement fuels, both through written comments and testimony at the hearing. In addition, DOE continues an open dialog in this area with interested stakeholders, particularly through the Clean Cities initiative. One commenter specifically called for DOE to work with the Environmental Protection Agency

(EPA)to ensure that regulations for conversions “are not overly burdensome for those wishing to convert vehicles * * * to alternative fuels.” DOE has a history of working with EPA in alternative fuel-related areas, and will continue to do so. One commenter disagreed with DOE's assertion that its authority under this rulemaking is limited by EPAct 1992. It cited EPAct's section 504(c), which states that: If the Secretary determines that the achievement of goals described in section 502(b)(2) of this title would result in a significant and correctable failure to meet the program goals described in section 502(a) of this title, the Secretary shall issue such additional regulations as are necessary to remedy such failure. (42 U.S.C. 13254(c)). DOE has read this clause to mean that, if the numerical Replacement Fuel Goal (30 percent in 2010 from 502(b)(2)) conflicts with the overall replacement fuel program goal of replacing motor fuels to the maximum extent practical (from 502(a)), then DOE has additional regulatory authority to rectify the conflict. However, DOE's additional authority to establish regulations under EPAct 1992 is limited. Section 504(c) continues: The Secretary shall have no authority under this Act to mandate the production of alternative fueled vehicles or to specify, as applicable, the models, lines, or types of, or marketing or pricing practices, policies, or strategies for, vehicles subject to this Act. Nothing in this Act shall be construed to give the Secretary authority to mandate marketing or pricing practices, policies, or strategies for alternative fuels or to mandate the production or delivery of such fuels. (42 U.S.C. 13254(c)). Finally, several Clean Cities related organizations called for DOE generally to enforce EPAct, support mandated fleets with funding, increase funding to Clean Cities coalitions, and to “propose real solutions.” An additional commenter also raised the issue of funding for relevant programs. In response, DOE asserts that it is indeed enforcing EPAct fleet programs, through programs focused specifically on regulated fleets under titles III and V of EPAct. These programs, as mentioned above, have been highly successful at accomplishing their missions within the context of the scope and authority provided by Congress. DOE remains committed to Clean Cities as a key element of its replacement fuel efforts. DOE intends to continue to utilize Clean Cities to identify new opportunities for success in the implementation of replacement fuel and energy efficiency technologies as they become available for deployment. As for the non-specific request that DOE propose “real solutions,” DOE has provided its detailed analysis supporting its decision concerning modification of the Replacement Fuel Goal, which also incorporates the technology development plans of many of its research and development programs. C. Assessment of Comments There are several important observations that can be made about the comments received. First, no commenter supplied any data to dispute DOE's analysis. Commenters did discuss the potential of particular technologies, but data from which DOE could make projections of the technology impacts was not provided, nor were any indications that modifying the analysis as generally proposed by several commenters would result in any significant net changes to the results of DOE's analysis. Second, a number of commenters (especially the Clean Cities and related organizations) merely asserted an objection to delaying the goal by 20 years, without any comment on the achievability of the proposed goal or an alternative goal. Third, many commenters did not appear to fully understand the purpose of the goal and the purpose of this rulemaking. As indicated in the NOPR and in the discussion above, DOE is directed by statute to analyze the existing goal of 30 percent replacement in 2010, and if found not to be achievable, modify the goal. However, many commenters discussed issues beyond the scope of this rulemaking, e.g., funding policies, establishment of particular programs, and other wide-ranging regulatory actions. In conclusion, the comments received have not persuaded DOE that it erred in its analysis or in its choice of revised goal, as included in the NOPR. DOE does note its continuing responsibility to periodically conduct analyses of the progress toward this goal, and to modify the goal again if and when appropriate. Such modification could include proposing either earlier or later achievement, or also a higher or lower replacement fuel level. IV. Determination That Congressional Goals Are Unachievable DOE has determined that the 2000 goal was not achieved and that the 2010 goal is not achievable. DOE notes that it is unaware of any analysis or technical data that was used by Congress in 1992 as a basis for setting the 10 percent and 30 percent Replacement Fuel Goals set forth in EPAct 1992. DOE is also not aware of any affirmative determination by Congress or by any agency that, at the time they were set, the statutory goals were reasonably achievable. As indicated in the NOPR, the actual data reported for 2000 indicated that the 10 percent Replacement Fuel Goal was not achieved. Replacement fuel use in that year totaled about 4.7 billion gallons, or only about 2.9 percent of the 162 billion gallons of motor fuel consumed. Of this amount, oxygenates in the form of ethanol and Methyl Tertiary Butyl Ether

(MTBE)supplied about 92 percent of the replacement fuel production. (See Transportation Energy Data Book—26th Edit., Table 2.3

(2006)(replacement fuel use) and FHWA Motor Fuel Use Report, Table MF-21; *http://199.79.179.101/ohim/hs00/mf.htm.* ) Based on EIA's AER 2005 (the last such review completed prior to this final rule), replacement fuels supply approximately 2.5 percent of the total motor vehicle fuel used in motor vehicles. The amount of replacement fuel used, as a percent of total motor fuel consumed, has essentially been flat for the past decade despite some increased use of alternative and replacement motor fuels. There are two reasons for this trend. First, as discussed in the NOPR, the recently accelerated phase-out of MTBE as an additive in gasoline has limited the total amount of replacement fuels consumed since MTBE previously accounted for a significant portion of these fuels. Because a gallon of MTBE contains more energy than a gallon of ethanol, replacing MTBE with ethanol may result in more gallons of ethanol used, but not in a higher replacement fuel level, since the level of replacement (percentage) is calculated on an energy content basis. This replacement of MTBE with ethanol partly explains why replacement fuels have not garnered a larger share of the on-road fuels market on an energy basis, even as ethanol use has increased quite significantly in the past several years, increasing from a level of slightly more than 1 billion gallons in 2002 to 4 billion gallons in 2005. (AER 2005.) Second, the comparatively small growth in total replacement fuels production and use has been matched by the growth in petroleum-based motor fuel use. The EIA AEO 2007 reference case projected that replacement fuels in 2010 will account for approximately 4.5 percent of total motor fuel use, or approximately 8.7 billion gallons of gasoline equivalent replacement fuel (although it is possible higher oil prices and the President's recent proposals will result in greater use of biofuels during this period). Given the short-term nature of the 2010 goal, it appears that ethanol would be the primary replacement fuel option to consider. Some production capacity for ethanol now exists, with increases in capacity projected over the next few years. The changes in distribution and infrastructure needed for other fuels (e.g., gaseous fuels or electricity) to make major contributions would be much longer term in nature, and thus largely impractical for serious consideration before 2010. Therefore, ethanol in blends are expected to account for about 85 percent of the replacement fuels produced in 2010, with the remaining balance made up of mostly natural gas and propane. DOE did not receive any data or information from commenters as to the projected production capacities of replacement fuel by 2010. In addition, the commenters did not provide any data or information to indicate how the replacement fuel production capacity of 30 percent in 2010 could be achievable. DOE therefore determines that the EPAct 1992 Replacement Fuel Goal of 10 percent for 2000 was not met and that the goal of 30 percent for 2010 is not achievable, considering all information available and the economic and technical feasibility of achieving the 2010 goal. V. Goal Modification Analysis As part of its preparation for the NOPR, DOE conducted an analysis focused on projecting potential production capacity for replacement fuels through 2030. This was necessary to determine how the Replacement Fuel Goal should be modified. DOE has relied upon this analysis and other more recent information and data currently available in the development of this final rule. DOE has identified and reviewed relevant internal and external reports, studies, and analyses on alternative and replacement fuel use and projected production. The pertinent information was compiled to assist in the development of an “achievable goal.” Because of the detailed analytical description provided in the NOPR concerning this analysis, and because today's notice relies on substantially similar analytical framework (e.g., building blocks and scenarios, and assumptions), a discussion of the analysis conducted by DOE will primarily be provided in summary form here. For more detail on the analysis, consult section V. of the NOPR. 71 FR 54776. During the period since the publication of the NOPR, EIA released portions of the AEO 2007. In order to meet the court ordered deadline and because the full AEO 2007 is unavailable, DOE could not update all of its analysis described in the NOPR. DOE does provide a comparison of the results using AEO 2006 and the available portions of AEO 2007 at the end of this section. A. Approach As discussed previously, DOE has two statutory criteria for modification of the Replacement Fuel Goal. First, the goal has to be aggressive enough to meet the intent of the program goal to promote replacement fuels to the “maximum extent practicable.” (42 U.S.C. 13252(a)). Secondly, the Replacement Fuel Goal has to be “achievable.” (42 U.S.C. 13254(b)). In meeting these criteria, DOE had several options in modifying the Replacement Fuel Goal, in accordance with the authority provided in section 504 of EPAct 1992. First, DOE could modify the goal level to what it believed was achievable in the 2010 timeframe, probably around the 4.5 percent projected in the AEO 2007. Second, DOE could move the goal out in time, since the potential contributions from replacement fuels increase over time. A third option would be to combine the two primary options and modify both the replacement fuel level and date. In analyzing the data, DOE looked at all of these options. DOE's evaluated credible data, projections, and other information covering approximately the next 25 years, to see what could be achievable. DOE's evaluation and analysis went out to 2030, since that is the last date for which credible input existed, particularly in the form of data from AEO 2006 and the recently released portions of AEO 2007. In general, the analytical framework included only existing statutory authorities and incentives in the development of the technologies. The only exception was in hydrogen and fuel cell technologies which did consider some level of additional or new incentives and/or mandates in the future. Therefore, the primary variables in DOE's analysis were projected technological and cost improvements. Hydrogen and fuel cell technologies were specifically identified as an exception because DOE recognizes that the hydrogen economy will require additional support later in the market introduction phase. Most of the other replacement fuels and technologies are viable in the market or they are getting or have gotten tax breaks, subsidies, or other price supports until they become viable in the market. One commenter claimed that DOE's analysis assumes continued support in terms of tax credits and other incentives that are currently provided but are scheduled to expire before 2030. In response, DOE believes it was careful to keep such variations to a minimum. Most of the technologies did not assume continue price support or other incentives. The projected results from technology programs were primarily based upon reaching technology cost goals that would result in cost competitiveness without subsidies. Therefore, DOE did not assume any new policies for nearly all technologies. The only exception, as indicated above, was hydrogen and fuel cell technologies, which embedded a higher level of support into its GPRA projections. B. Building Blocks The Replacement Fuel Goal proposed in this action was developed after careful consideration of existing market factors, energy forecasts, and programs directed by DOE and its national laboratories. Three combined building blocks were considered:

(1)The reference case projected by EIA in the AEO 2006 with updates from AEO 2007;

(2)the high price case presented in the AEO 2006; and

(3)projections from the DOE programs conducting research and development on replacement fuel and vehicle technologies. The outcome of this effort is several different cases under which varying levels of replacement fuel are potentially achieved. These building blocks include replacement fuel and vehicle technologies, with projected contributions based on either the high or reference prices from the AEO, or the DOE program development projections. Some of the building blocks are relevant to all of the scenarios, while others appear in a limited number of scenarios. As indicated above, DOE evaluated data out through 2030, at periodical intervals. In all cases, the highest levels of replacement fuels appear in 2030. Below is a description of the building blocks and “cases” which were used to develop the four scenarios, described in the subsequent section. AEO Reference Case Description The AEO reference case is the base case prepared by EIA. It takes into account developments that are likely to occur as a result of policies that existed at the time the forecast was developed. AEO takes into account expected improvements and cost reductions in many technologies, but does not attempt to project the impact of DOE technology development programs. It does not account for potentially new policies, or legislation. The reference case also includes a number of other critical assumptions including economic growth rates and oil prices. The AEO 2006 reference case assumes a U.S. economic growth rate of 3 percent per year. Oil prices in this case are projected to fluctuate from the high $40 range to mid $50 range and peak at $57 in 2030 under AEO 2006. AEO 2006, which was first released in late 2005, indicates that the oil price projection in the reference case represents EIA's “current judgment regarding the expected behavior of the Organization of Petroleum Exporting Countries

(OPEC)producers in the long term, adjusting production to keep world oil prices in a range of $40 to $50 per barrel”. (AEO 2006, p. 206.) In the AEO 2007 Reference Case update, EIA estimated that “the average world crude oil price declines slowly in real terms (2005 dollars), from a 2006 average of more than $69 per barrel * * * to just under $50 per barrel * * * in 2014 as new supplies enter the market, then rises slowly to about $59 per barrel * * * in 2030.” Thus the 2030 world oil price in the AEO 2007 reference case is slightly above the 2030 price in the AEO 2006 reference case ($59 versus $57). It should be noted that EIA specifically used the same rationale in developing its projections in the AEO 2007 as it had in the AEO 2006, indicating the following: The world oil price in AEO2007 is defined as the average price of low-sulfur, light crude oil imported into the United States—the same definition used in AEO2006. This price is approximately equal to the price of the light, sweet crude oil contract traded on the New York Mercantile Exchange (NYMEX) and the price of West Texas Intermediate

(WTI)crude oil delivered to Cushing, Oklahoma. The weighted average U.S. refiners' acquisition cost of imported crude oil is $5 to $8 per barrel less than the price of imported low-sulfur, light crude oil. (AEO 2007.) For more information on the AEO 2007 (Early Release), see *http://www.eia.doe.gov./oiaf/aeo/index.html* . AEO High Price Case Description The high price case makes “more pessimistic assumptions for worldwide crude oil and natural gas resources than in the reference case” (AEO 2006, p. 204). In particular, OPEC resources and production capacity are projected to be lower in this case. As a result, oil prices rise to nearly $90/barrel by 2030. Even in the high price case, however, some of the projected prices are lower than recent levels, rising to $70/barrel in 2013 and $80/barrel in 2018. The high oil price forecast for the next several years ranges from $50 to $60, roughly comparable to today's prices. In this case, transportation energy demand also is reduced because of high petroleum prices, which tend to encourage fuel efficiency. At the same time, higher oil prices in general also encourage more replacement fuel use. It should be noted that at the time of preparation of this final rule, EIA had not yet released its updated High price case for the AEO 2007. DOE Program Development Case Description Section 504(b) of EPAct 1992 requires that the goal, as modified, be achievable. (42 U.S.C. 13254(b)) As part of the determination as to whether a goal would be achievable, DOE considered technologies that are technically and economically feasible today. DOE also considered technologies that currently may not be technologically or economically feasible, but that may be reasonably expected to be technologically and economically feasible given the achievement of certain conditions in the timeframes necessary to contribute to the goal. Many of these technologies are currently being developed under DOE's own programs. The DOE program development case represents the estimated potential replacement fuel levels achieved if industry commercializes in significant amounts the new technologies and new fuels being developed by DOE and its industry partners through research and development programs. These estimated levels are predicated on continuing existing research and development activities and the achievement of technology goals/milestones that have been set. They also depend on economic targets being achieved and market acceptance of the technologies and fuels reviewed; however, for the most part, they do not rely upon new policy or regulatory initiatives. Information to support these cases came primarily from the relevant EERE and Fossil Energy programs, and included GPRA (Public Law 103-62; August 3, 1993) analyses and recently released technical reports identifying potential contributions of various fuel and vehicle technologies. (For more information concerning GPRA analyses, see *http://www1.eere.doe.gov/ba/pba/gpra_estimates/fy_07.html.* ) The technologies and fuels for which information was received from DOE program offices include fuel efficiency measures, ethanol, gas-to-liquid fuels, hydrogen, and electricity in PHEVs. The GPRA analysis was specifically relied on for the figures used for the Hydrogen Program and the fuel-efficiency savings rates projected for technologies arising from the EERE's FCVT Program. It should be noted that the GPRA figures are based on the AEO 2005 forecast and not AEO 2006 or AEO 2007 because AEO 2006 and AEO 2007 were not available when the most recent GPRA analysis was conducted. The GPRA analyses are updated every 2 or 3 years and have not been updated since the publication of the NOPR. In the case of hydrogen, therefore, this means that the analysis presented here is based on AEO 2007. In the case of energy efficient vehicle technology savings, DOE calculated a savings rate based on the 2007 GPRA report and applied this figure to AEO 2006's (or for the updated Reference Case analysis for AEO 2007's) projection of on-road motor fuel use. The analysis conducted by DOE addressed a number of programs and fuels that contribute to the Replacement Fuel Goal, including energy efficiency measures, ethanol, biodiesel, coal-to-liquid fuels, gas-to-liquid fuels, hydrogen, and other alternative fuels. These programs and fuels were described in section V. of the NOPR. 71 FR 54776. C. Replacement Fuel Scenarios The previous section summarized the building blocks reviewed by DOE. This section describes how the various building blocks are combined into separate and distinct scenarios. Four scenarios were considered:

(1)The reference case projected by EIA in AEO 2006;

(2)the high price scenario presented in AEO 2006;

(3)a combination of the AEO 2006 reference case with achievement of program goals (designated as program developments); and

(4)a combination of the AEO 2006 high price case with program developments. The different scenarios represent the potential bounds for proposing a revised replacement fuel production goal under sections 502 and 504 of EPAct 1992. The analysis performed looked at values for replacement fuel penetrations in the 2020, 2025, and 2030 timeframes. Near the end of this section, a comparison of the reference case analyses based upon the AEO 2006 and AEO 2007 is provided. Reference Case Scenario As discussed earlier, the reference case represents the base case, or the most conservative approach to projecting potential replacement fuel production. The total projected replacement fuel production level by the year 2030 is approximately 8.65 percent in this scenario based upon AEO 2006. This level of petroleum replacement further assumes that all CTL fuel is used for transportation purposes. Aside from this assumption, the most noticeable difference between this scenario and the ones that include the program development case is the relatively low amount of biofuels that is projected to be used. (This is due to assumptions made about technological progress of ethanol production technologies in the program development case.) Results for this scenario are provided in Figure 1. 3 On all summary results tables, the AEO 2006 cases have some fuel efficiency savings built into the forecasts, as a result of gradual improvements in vehicle technologies. The fuel efficiency savings reflected in the line below in each table represent those additional savings due to FCVT program developments. Figure 1.—Summary of Results for Reference Case Scenario Reference 2020 2025 2030 On-road Fuel Use 3 14.42 15.36 16.46 Additional Fuel Efficiency Savings

(FCVT)0.00 0.00 0.00 OnRoad Fuel Use w/Additional Fuel Efficiency Savings 14.42 15.36 16.46 Ethanol 0.49 0.51 0.51 Biodiesel 0.02 0.02 0.02 Hydrogen/FCVs 0.001 0.001 0.002 Coal to Liquids 0.23 0.58 0.76 Gas to Liquids 0.00 0.00 0.00 Other Alternative Fuels 0.10 0.11 0.12 Petroleum Use 13.58 14.14 15.03 Total Replacement Fuel 0.84 1.22 1.42 Portion Replacement Fuel 5.83% 7.95% 8.65% [ Note: Results in million barrels per day

(mbpd)unless otherwise noted] High Price Case Scenario The high price case, which predicts higher oil prices throughout the forecast, indicates a potential for replacement fuel production level that is double that in the reference case. By 2030, replacement fuel production potentially accounts for 2.65 million petroleum equivalent barrels per day, providing a replacement fuel production level of 17.84 percent. The most notable changes in this forecast are the reduction in total motor fuel consumption, dropping from 16.46 to 14.86 million barrels a day as a result of reduced demand, and the significant increase in potential CTL production, which increases from a level of 0.76 million barrels a day in the reference case to 1.69 million barrels a day in the high price case. Results for this scenario are provided in Figure 2. Figure 2.—Summary of Results for High Price Case Scenario High price 2020 2025 2030 On-road Fuel Use 13.20 13.97 14.86 Additional Fuel Efficiency Savings

(FCVT)0.00 0.00 0.00 OnRoad Fuel Use w/Additional Fuel Efficiency Savings 13.20 13.97 14.86 Ethanol 0.54 0.60 0.62 Biodiesel 0.03 0.03 0.03 Hydrogen/FCVs 0.001 0.001 0.002 Coal to Liquids 0.29 0.81 1.69 Gas to Liquids 0.04 0.19 0.19 Other Alternative Fuels 0.09 0.10 0.11 Petroleum Use 12.21 12.24 12.21 Total Replacement Fuel 0.99 1.73 2.65 Portion Replacement Fuel 7.49% 12.37% 17.84% ( Note: Results in mbpd unless otherwise noted). Reference Case With Program Developments Scenario This scenario combined the reference case assumptions regarding transportation energy demand with projections for successful DOE research and development programs. As in the reference case discussed above, this case assumes that all the CTL production capacity forecasted in the reference case is used for transportation purposes. The reference case with program developments further assumes additional fuel efficiency savings over and above those included in the reference case based on the fuel efficiency improvements and change in vehicle penetration rates attributed to commercialization of technologies undergoing research and development at DOE. Each of the other program initiatives discussed in this notice are factored into this scenario so that estimates for replacement fuel production potential of GTL, ethanol, biodiesel, and hydrogen are included. The potential impact of combining these forecasts with the individual program goals results in a replacement fuel production level potential of 35.25 percent in 2030. The most significant differences from the two previous forecasts (reference and high price stand-alone) are the incorporation of additional efficiency savings and significant biofuels (ethanol and biodiesel) production. The additional fuel efficiency improvements represent over 3 mbpd savings by 2030. The two biofuels also combine to replace more than 3 mbpd equivalent in this scenario. Results for this scenario are provided in Figure 3. Figure 3.—Summary of Results for Reference Case With Program Development Scenario Reference/program goals 2020 2025 2030 On-road Fuel Use 14.42 15.36 16.46 Additional Fuel Efficiency Savings

(FCVT)0.55 1.11 3.04 OnRoad Fuel Use w/ Additional Fuel Efficiency Savings 13.88 14.25 13.42 Ethanol 1.33 1.95 2.58 Biodiesel 0.37 0.51 0.65 Hydrogen/FCVs 0.001 0.16 0.47 Coal to Liquids 0.23 0.58 0.76 Gas to Liquids 0.05 0.15 0.15 Other Alternative Fuels 0.10 0.11 0.12 Petroleum Use 11.81 10.79 8.64 Total Replacement Fuel 2.07 3.46 4.73 Portion Replacement Fuel 14.94% 24.27% 35.25% ( Note: Results in mbpd unless otherwise noted). High Price Case With Program Developments This scenario combines the high price case assumptions with the program developments. It includes the same assumptions regarding CTL use as discussed above. The program development assumptions regarding potential replacement fuels and fuel efficiency savings are the same as used in the previous scenario. The major difference in this scenario is that CTL production more than doubles due to higher oil prices. Ethanol and biodiesel again demonstrate the potential to replace a significant amount of petroleum. The higher oil prices, however, have the effect of reducing overall motor fuel use, which magnifies the potential replacement fuel levels. The result in this scenario is a maximum potential replacement fuel level of 47.06 percent. Results for this scenario are provided in Figure 4. Figure 4.—Summary of Results for High Price Case With Program Development Scenario High price/program goals 2020 2025 2030 On-Road Fuel Use 13.20 13.97 14.86 Additional Fuel Efficiency Savings

(FCVT)0.50 1.01 2.74 On-Road Fuel Use w/Additional Fuel Efficiency Savings 12.70 12.96 12.12 Ethanol 1.33 1.95 2.58 Biodiesel 0.37 0.51 0.65 Hydrogen/FCVs 0.001 0.16 0.47 Coal to Liquids 0.29 0.81 1.69 Gas to Liquids 0.05 0.15 0.20 Other Alternative Fuels 0.09 0.10 0.11 Petroleum Use 10.58 9.28 6.41 Total Replacement Fuel 2.12 3.68 5.70 Portion Replacement Fuel 16.710% 28.400% 47.060% Note: Results in mbpd unless otherwise noted. D. DOE's VISION Model Analysis To validate the results of its analysis, DOE used the VISION model to look at what the vehicle mix would have to be for the replacement fuel production levels suggested by the different scenarios considered. The Replacement Fuel Goal is a production capacity goal not a fuel use goal. However, production capacity (supply) is tightly linked with fuel usage (demand). The primary purpose of the VISION modeling exercise was to verify the replacement fuel production levels were reasonable given various potential vehicle mixes and fuel availability. The secondary use was to project the greenhouse emission impacts under each of the scenarios. (For more information on VISION, see *http://www.transportation.anl.gov/software/VISION/index.html.* ) The VISION model results matched very closely with those from the analysis for this rule. In most cases the VISION model projected slightly higher replacement fuel levels due to differences in assumptions about overall petroleum consumption, efficiency gains, and heating values for fuels. The projected emission results indicated that the annual emissions will decrease from approximately 846 million metric tons of carbon equivalent (MMTCe) for the AEO 2006 reference case scenario, to just under approximately 500 MMTCe for the AEO 2006 reference case with program development scenario. Additional results and discussion on the VISION results for vehicle mix and greenhouse emissions impact can be found in section V.D. of the NOPR. 71 FR 54783. One commenter pointed out apparent discrepancies between the EIA and VISION model analyses concerning the makeup of the LDV market. While DOE acknowledges that these two analyses differ somewhat in their pathways, they are in relative agreement on the overall destination points. Comparison of the VISION model with the combined scenarios validates that the combination of replacement fuels analyzed by DOE, is achievable under the framework of this rule. E. AEO 2007 Results DOE utilized AEO 2006 in conducting the analysis for the NOPR. In December 2006, EIA began to make available portions of its AEO 2007. (See *http://www.eia.doe.gov/oiaf/aeo/index.html.* ) EIA released its reference case update, which allowed DOE to conduct comparative analysis of its Replacement Fuel Goal analysis, namely the two scenarios based specifically upon the reference case. At the time of preparation of this final rule, EIA had not yet released its high price case, thus DOE could not update all four scenarios. Overall, the AEO 2007 update did result in a few differences in the Replacement Fuel Goal analysis, although overall

(net)impacts were relatively minor. Figure 5 below shows a comparison of the year 2030 results for the reference case scenario and the reference case with program developments scenario (portrayed in the table as “Reference/Program Goals”). Figure 5.—Summary of Results for Reference Case and Reference Case With Program Development Scenarios for 2030 AEO Reference case 2006 Reference case 2007 Reference/program goals 2006 Reference/program goals 2007 On-Road Fuel Use 16.46 16.27 16.46 16.27 Additional Fuel Efficiency Savings

(FCVT)0.00 0.00 3.04 3.01 On-Road Fuel Use w/Additional Fuel Efficiency Savings 16.46 16.27 13.42 13.26 Ethanol 0.51 0.62 2.58 2.58 Biodiesel 0.02 0.03 0.65 0.65 Hydrogen/FCVs 0.002 0.002 0.47 0.47 Coal to Liquids 0.76 0.44 0.76 0.44 Gas to Liquids 0.00 0.00 0.15 0.15 Other Alternative Fuels 0.12 0.11 0.12 0.11 Petroleum Use 15.03 15.07 8.64 8.87 Total Replacement Fuel 1.42 1.20 4.73 4.39 Portion Replacement Fuel 8.65% 7.38% 35.25% 33.13% ( Note: Results in mbpd unless otherwise noted.) The first change seen from the AEO 2007 reference case update is that motor fuel use drops from 16.46 to 16.27 mbpd. As for the replacement fuels, ethanol and biodiesel increase slightly, while CTL drops significantly. This change in the biofuels reflects EIA's readjusting for the RFS and the accompanying increased use of blends. EIA has indicated that the primary cause for the change to the CTL projection is higher capital costs. Discussions with industry indicated that the capital costs for CTL facilities were higher than originally anticipated, resulting in less facilities being built. Other alternative fuels are relatively flat however, and within this number electricity actually grows by nearly 40 percent over the AEO 2006 with a corresponding reduction in liquid petroleum gas. Overall these figures are very small and the changes are a reflection of minor adjustments in EIA's earlier assumptions. AEI also indicated that PHEVs were incorporated in their modeling analysis but that the resulting electricity use was negligible. The overall impact on the reference case replacement fuel percentage is to reduce the replacement fuel contribution from 8.65 percent down to 7.38 percent, a change of approximately 1.3 percentage points or 15 percent. The impact of the 2007 AEO reference case update has much less overall significance to the reference case plus program developments scenario. This is because the efficiency contribution and many of the replacement fuel contributions in this scenario were the result of programmatic inputs, such as from GPRA or other technical analyses conducted by DOE's research and development programs. These did not change, as new analyses have not been conducted by the programs since publication of the NOPR. The programmatic inputs include additional fuel efficiency savings (implemented solely as an unchanging percentage of overall on-road fuel use), ethanol, biodiesel, hydrogen, and GTL. Thus, the biggest impact on this scenario came from the EIA change to its reference case projection for CTL (which was used in both the reference case and reference case plus program developments scenarios of this analysis). The resulting impact was to reduce the replacement fuel contribution under the reference case plus program developments scenario slightly from 35.25 percent to 33.13 percent, a reduction of just over 2 percentage points or 6 percent. In summary, overall, the changes due to the use of the AEO 2007 reference case did not result in major impacts on the replacement fuel analysis as included in the NOPR. Thus, DOE did not see sufficient changes to warrant modifying the Replacement Fuel Goal as proposed in the NOPR. F. Additional Reports DOE also reviewed additional reports and analyses released during the period since the NOPR that are relevant to the development of the final rule. DOE notes three such reports. In October 2006, the Council on Foreign Relations

(CFR)released National Security Consequences of U.S. Oil Dependency, Report of an Independent Task Force (CFR Report). The CFR task force is chaired by John Deutsch (former director of Central Intelligence and Deputy Secretary of Defense) and James R. Schlesinger (former Secretary of Defense and the first Secretary of Energy). This report was focused on examining “the consequences of dependence on imported energy for U.S. foreign policy.” In doing so, it focused its attention on “how oil consumption (or at least growth in consumption) can be reduced and why and how energy issues must become better integrated with other aspects of U.S. foreign oil policy.” (See CFR Report p. xi.) Consistent with DOE's analysis supporting today's final rule, the Council's analysis “concentrates on the next twenty years, a period long enough to put necessary policy measures into place but not so distant as to encounter a wider range of future geopolitical or technological uncertainties.” (See CFR Report p. 4.) The Council then went on to emphasize many of the same technologies that DOE relies upon in today's action, such as energy efficiency, batteries, fuel cells, and biofuels. The Council also pointed out, as DOE did in the NOPR, that energy market forces are now leading to innovation by encouraging entrepreneurs to invest in new energy products and services, particularly research and development. While focusing on a different objective than today's final rule, the CFR Report relied on many assumptions and analyses that appear consistent with those employed by DOE in today's action. In November 2006, the President's Council of Advisors on Science and Technology (PCAST) released The Energy Imperative: Technology and the Role of Emerging Companies (PCAST Report). PCAST was formed under Executive Order 13226 in September 2001 to advise the President “on matters involving science and technology policy.” The PCAST Report recommendations focus on “immediate steps that could be taken to reduce our Nation's reliance on foreign oil and to reduce atmospheric emissions from energy production and use.” (PCAST Report cover letter.) For transportation, PCAST suggests “steps for a major transition to biofuels and to electric or hydrogen-powered vehicles.” (PCAST Report cover letter.) The major transportation-related recommendations focus specifically on increasing production of and demand for biofuels, as well as reviewing CAFE standards to make needed reforms and encourage non-fossil-fuel use. Thus, the PCAST report highlights two of the more important elements of DOE's replacement fuel analysis, biofuels and energy efficiency, and is also generally consistent with the President's recent State of the Union Address. The Energy Security Leadership Council

(ESLC)released Recommendations to the Nation on Reducing U.S. Oil Dependence in December 2006. ESLC is chaired by General P.X. Kelley, USMC (Ret.), the former Commandant of the Marine Corps, and Frederick W. Smith, Chairman, President, and CEO, FedEx Corporation. Other Council members include various leaders of industry as well as former Defense and Homeland Security officials and high-ranking military officers. As in today's action, the Council used the year 2030 as its focal point for analysis. Consistent with the DOE's Replacement Fuel Goal analysis, ESLC focused heavily upon improved efficiency of vehicles and increasing supply and demand of biofuels. Its corollary recommendations included suggestions relating to improving the efficiency of medium- and heavy-duty trucks (through both hybrid technologies and fuel efficiency standards) and carbon sequestration (to enable coal-to-liquids and other fuels production). Thus, the ESLC's portfolio also appears to be generally consistent with the portfolio relied upon by DOE. Each of these reports provides interesting and thoughtful perspectives on issues that are closely related to those addressed in this final rule. While the reports do not include quantitative analyses that would either support or undercut DOE's analysis, they do use approaches that are similar to those used by DOE and they draw conclusions that appear to be generally consistent with those reached by DOE in this final rule. For example, each focused on a portfolio of options, with the greatest emphasis on energy efficiency, biofuels, and other non-petroleum fuels. They also considered 20-25 year time-frames, similar to those used by DOE. G. Other Issues Domestic Content Section 502(b)(2) of EPAct 1992 directs that of the replacement fuels counted in the goal, at least half must be domestic replacement fuels. (42 U.S.C. 13252(b)(2)) The replacement fuels analyzed for today's final goal are assumed to be primarily domestic in nature. The only replacement fuels analyzed that showed potential for being imported are GTL, which represent a relatively small contribution to the overall goals. In addition, the small amount of GTL fuels included in the analysis was assumed to be based solely upon domestic resources. Ethanol imports are also assumed to be small. All biodiesel, CTL, and hydrogen are assumed to be domestic. Thus, DOE has assumed that the overwhelming majority of the replacement fuels included in its analyses will be domestic in nature. However, since the actual contribution of imports to the supply of these replacement fuels will be determined by markets, DOE intends to closely monitor the development of markets in this area. If it determines that these assumptions are not valid, it will consider whether changes in the Replacement Fuel Goal are warranted. One commenter did indicate a concern about any assumptions that may have been made about exports of replacement fuels, and that any decision to reduce exports might constitute a major shift in trade policy. It should be remembered that the Replacement Fuel Goal is a production capacity goal. Therefore, for the purposes of the analysis, DOE was concerned with whether there would be sufficient capacity to produce a given amount of replacement fuels. A consideration of whether some portion of those fuels might ultimately be exported, if export was the opportunity that made the most sense, was outside the scope of DOE's analysis. GHG As part of its analysis of the replacement fuel levels considered in this Final Rule, DOE evaluated the overall GHG implications of the various scenarios. All scenarios show reduced carbon emissions over the reference case. Carbon emissions are reduced because more fuel efficient vehicles are used in these scenarios and the replacement fuels in general are less carbon intensive than petroleum motor fuels. The exception is the GHG emissions associated with CTL fuels if the carbon dioxide emitted during fuel production is not captured and sequestered. EIA indicates that there are currently no plans to sequester the carbon associated with CTL production absent new policies or requirements, so DOE has not assumed such emissions will be sequestered. Even with the increased emissions of GHG from CTL, the net effect of the replacement fuel production goal proposed in today(s notice is a substantial reduction in GHG emissions. On a life cycle basis, replacement fuel percentages projected by the VISION model goal would achieve a reduction in GHG emissions of over 40 percent compared to the reference case. The annual emissions are projected to decrease from 846.5 million metric tons of carbon equivalent (MMTCe) from fuel mix represented by the AEO 2006 reference case scenario, to just under 500 MMTCe from the fuel mix represented by the fuel mix that most closely represents the AEO 2006 reference case with program development scenario. This projected reduction is primarily due to the high utilization of biofuels, most of which have significantly lower carbon emissions than petroleum-based fuels, especially when derived from biomass. As noted earlier, the exact carbon emissions cannot be pinpointed as the mix of fuels may ultimately be different than that projected; however, it is expected that significant reductions would occur. The full VISION model is typically not updated until the middle of the calendar year, several months after release of all of the Annual Energy Outlook. Therefore, it was not possible to conduct a complete update to the GHG emission analysis conducted for the NOPR. A preliminary effort was made, focusing primarily upon the contribution from CTL because it was the only component of the analysis that changed significantly that could have a detrimental impact on GHG. Initial estimates indicate that GHG emissions from CTL are significantly greater than previously estimated. Additional studies since the original NOPR analysis indicated that the life-cycle GHG emissions from CTL produced was underestimated. At the same time, however, the updated analyses based upon the AEO2007 reference case indicate that the CTL contribution in the 2030 time-frame will be considerably less than estimated in the NOPR. The increase in per unit GHG emissions was of a comparable degree to the decrease in the projected contribution of CTL to the replacement fuel market. Thus, according to the most current analysis, the net result is that there is no change in GHG emissions as compared to the estimates in the NOPR. There is still a projected 40 percent drop in GHG emissions versus the baseline reference case. One commenter took particular issue with DOE's approach to its GHG analysis. This commenter claimed that DOE used the wrong baseline for assessing GHG emissions. The commenter indicated that DOE should have used the levels “the U.S. would have achieved if DOE had implemented Congress's original fuel replacement goals.” DOE disagrees with this comment. First, as stated above, the goal established by Congress and modified today is not a mandate. DOE's authority is limited to supporting achievement of the goal, reviewing the goal, and modifying the goal. As such, the commenter's suggestion that DOE was required to implement the goals is a mischaracterization. Second, the baseline suggested by the commenter would be based upon a hypothetical fuel mix used to meet the goal in 2010. Since DOE has found that the goal is unachievable, it does not know what the fuel mix would have been in 2010 to achieve a 30 percent level. This fuel mix is critical for determining the baseline contribution of GHGs. Without such a breakdown, no such estimate can be made. VI. Modified Goal A. 30 Percent by 2030 DOE is establishing a modified Replacement Fuel Goal of 30 percent by 2030. The modified Replacement Fuel Goal is based primarily on the evaluation of four scenarios across a range of probable market conditions and involves a portfolio of technology options as presented in the NOPR. The four scenarios project a replacement fuel percentage that ranges from just over 7 percent to a little above 47 percent in the 2030 timeframe. DOE selected a goal that falls near the middle of this range, providing a balance between the most optimistic and pessimistic scenarios analyzed by DOE. Based on the analysis as presented in the NOPR and summarized in this notice DOE determines that a fuel production capacity of 30 percent by 2030 is achievable. Section 504 makes clear that achievability of the goal is key, both for analysis of the goal as well as modifying the goal. (42 U.S.C. 13245(b).) EPAct 1992, however, does not define “achievable” for the purpose of modifying the goal. Section 502(b)(2) directs DOE to consider the technological and economic feasibility of the statutory goal in determining the goal's achievability under the initial review (42 U.S.C. 13242(b)(2).) As stated in the NOPR, DOE has determined that in order for a goal to be achievable there must be a reasonable expectation, based on technological and economic feasibility, that the desired level of production capacity will be created within the relevant timeframe. In order to further ensure that the final goal is achievable, as discussed above, the final rule generally considered only policies and programs that are currently in place. In establishing the Replacement Fuel Goal adopted today, DOE assumed that not all technologies would be fully adopted into the marketplace. This assumption is consistent with statements provided by one commenter, who stated that to assume that research and development programs will accomplish all of their goals is unrealistic. This assumption provides an appropriate balance between the statutory requirements of the “maximum extent practicable” and “achievable.” DOE has determined that a timeframe of 2030 is necessary to achieve the 30 percent level of the Replacement Fuel Goal adopted today. There are important reasons why a timeframe extending out to 2030 is required to make major changes in motor fuel consumption patterns and thus production levels—the lead-time for investments to begin and bear fruit, and the retirement cycles for U.S. vehicles. Major investments of capital are required to establish industrial capacity to produce replacement fuels. Such investments are typically focused over the entire operating life of a production facility (often 30 years) and potential investors may require a high degree of certainty that the cost of competing fuels will be higher than the cost of fuels produced by the subject plant far into the future, thus allowing a positive return on investment. Barriers to such major investments include uncertainty of world oil prices, high cost of production coupled with high initial capital cost, and the long decision-to-production lead times. Once investments are made to develop replacement fuel production, production facilities must be built. It can take five years or more from the start of construction on a new facility until full operation is achieved, depending on the complexity and size of the production facility involved. Achievement of the 30 percent Replacement Fuel Goal is projected to require a substantial number of new production facilities (such as plants to produce cellulosic ethanol and CTL fuels). Construction of production facilities is not expected to occur simultaneously, thereby resulting in an additional five or even ten years until production capacity is at a level necessary to achieve the Replacement Fuel Goal. Many of the investments anticipated in 1992 have only recently begun. Recent high oil prices are beginning to spur more investment in alternative and replacement fuels, but not fast enough to allow DOE to set a 2010 replacement fuel production goal at levels any higher than the AEO 2007 ( ~4.5 percent). Although the Replacement Fuel Goal is production (supply) based, production is closely linked to fuel usage (demand). On the vehicle side, a similar period of lead-time is typically required to make a significant impact on U.S. fuel consumption patterns. This is because it takes more than 25 years to turn over the U.S. fleet of in-use motor vehicles. According to the 25th Edition of the Transportation Energy Data Book (TEDB 25, U.S. DOE and Oak Ridge National Laboratory, ORNL-6974, 2006), after 30 years, approximately 93 percent of the 1990 model year vehicles are projected to be retired, and slightly less than 96 percent of the 1990 model year light trucks will have been scrapped. The median lifetime for 1990 cars is now 16.9 years, and 15.5 years for 1990 light trucks. While the truck numbers are relatively consistent (compared to 1970 and 1980 model years), the car numbers have increased substantially (from 11.5 years in 1970 and 12.5 years in 1980). The effects of this can be seen by a U.S. vehicle population of 226 million in 2003, with annual new LDV sales of approximately 16.5-17 million/year (or approximately equal to 7 percent of the size of the in-use fleet). Thus, any replacement fuel or higher efficiency technology which requires actual replacement of vehicles must be phased into the U.S. fleet of vehicles over a number of years to eventually account for a significant portion of in-use vehicles. (See TEDB, Tables 3.8, 3.9, 4.5, 4.6, and 8.1.) DOE has determined to maintain the level of the goal at 30 percent for two reasons. First, when Congress passed EPAct 1992, it indicated that it believed the level of 30 percent replacement fuel was appropriate. Second, this level of replacement fuel production is both consistent with the overall goals of the President's AEI and Twenty in Ten initiatives, to promote replacement fuels and energy efficiency. Since DOE's analysis of the Replacement Fuel Goal was originally published in the NOPR, DOE has continued to review relevant data and published reports to inform today's decision. Overall, the reports appear to rely on an analytical framework consistent with that relied upon for today's final rule, further supporting the reasonableness of DOE's approach. DOE also reviewed comments received in response to the NOPR and found that none included data to support a Replacement Fuel Goal other than that adopted in this final rule. It should be noted that nearly all of the public comments agreed with the need to modify the goal, but a majority disagreed with the Department's choice to move the goal to 2030. As discussed above in section III, a variety of commenters requested that DOE establish a more aggressive goal with a stronger focus upon program development and implementation. While a number of these commenters indicated that they wanted to see DOE set a “higher goal,” few offered concrete proposals as to what that goal should be and how it could be achieved. DOE is required to set a goal that is deemed achievable. As illustrated in the analysis above and that provided in the NOPR, DOE has set out a rational pathway to the achievement of a goal, based upon widely accepted forecasts (such as the EIA forecast) and information provided by DOE research and development programs. In addition, the documents provided by the research and development programs and included within the docket, include the individual pathways for contributing to the achievement of the modified Replacement Fuel Goal. As for utilizing either of the “program developments” cases as the specific goal level, DOE explicitly rejected a goal based solely on these levels because of the fact that not all research and development programs can be expected to achieve *all* milestones. DOE is unable to set a more accelerated pathway based upon the information it has at this time. In summary, due to both lead-times for fuel supply investments and the time required to turn over nearly all of the U.S. fleet of vehicles, a significant change in the utilization of U.S. motor fuel consumption patterns could take more than two decades. Today's decision is based primarily on the existing budgetary and policy framework. Therefore, it is largely a reflection of existing and expected conditions. In and of itself, it is not an action plan or roadmap for expanding replacement fuel production capacity. Nothing in this action precludes appropriate parties (such as Federal, State, or local governments, or private industry) from taking steps to accelerate achievement of the goal. B. Interim Goal As proposed, today's final rule adopts a revised the Replacement Fuel Goal for 2030. Today's rule does not adopt an interim Replacement Fuel Goal. The court order under which today's final rule is being issued, directed DOE to “revise the *goal* for replacement fuels contained in the Energy Policy Act of 1992.” *Center for Biological Diversity* v. *U.S. Dept. of Energy et. al.* , No. 05-cv-01526-WHA Document 54 p. 2 (N.D. Cal. March 30, 2006) (Order Re Timing of Relief); emphasis added. As indicated by the court, DOE is only required to revise a single goal, and not the final goal and the interim goal. Several commenters urged DOE to establish a revised interim goal in conjunction with a revised final goal. Commenters stated that Congress established the ten percent by 2000 interim goal as a method of evaluating the Nation's progress in achieving the original thirty percent by 2010 final goal. Commenters further stated that a revised interim goal is necessary to provide for an evaluation of progress towards achieving the revised goal, and is necessary so that DOE may identify difficulties in achieving the revised goal earlier in the process. A revised interim goal is not necessary for evaluating the progress in achieving the revised final goal adopted in today's final rule. The EIA AEO provides the current production capacity of alternative fuel in comparison to the consumption of motor fuel in the Untied States. The EIA AEO provides a de facto report on the progress in achieving the revised Replacement Fuel Goal. As such, DOE determined that an interim goal is not needed to monitor the progress of the Replacement Fuel Goal. Further, DOE will periodically evaluate the prospects for achieving the Replacement Fuel Goal set in today's rule, including tracking the levels projected for intervening years, and will publish the results of its evaluations as appropriate. If the AEO projections should indicate that the goal, as revised in this action, no longer meets the criteria of achievable, or if it appears that the goal can be achieved earlier or a greater level can be achieved, DOE will institute a rulemaking process to modify the goal at that time. VII. Regulatory Review A. Review Under Executive Order 12866 Today's final rule action has been determined to be a “significant regulatory action” under Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under the Executive Order by the Office of Information and Regulatory Affairs in the Office of Management and Budget. B. Review Under Regulatory Flexibility Act The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires preparation of a regulatory flexibility analysis for any rule that is likely to have a significant economic impact on a substantial number of small entities. Today's action merely modifies the Replacement Fuel goal, with no requirements imposed upon any entity. Therefore, this action will not result in compliance costs on small entities. DOE certifies that this final rule will not have a significant economic impact on a substantial number of small entities, and accordingly, no regulatory flexibility analysis has been prepared. C. Review Under the Paperwork Reduction Act No new record keeping requirements, subject to the Paperwork Reduction Act, 44 U.S.C. 3501, *et seq.* , are imposed by this final rule. D. Review Under the National Environmental Policy Act of 1969

(NEPA)DOE has not prepared an environmental impact statement

(EIS)or an environmental assessment

(EA)for the final rule, as neither is required. The final rule implements the March 6, 2006, Order of the U.S. District Court of California to modify the EPAct 1992 Replacement Fuel Goal. *Center for Biological Diversity* , 419 F.Supp 2d 1166. In its order, the Court determined that EPAct 1992 imposed mandatory action on the Secretary in requiring that the goal be modified, if the Secretary determines the goal is unachievable. Since DOE lacked discretion, the Court determined that NEPA did not apply. In the final rule, DOE has determined that the “30 percent by 2010” goal is unachievable. Therefore, modification of the goal is mandatory, and consistent with the Court's Order, neither an EA or EIS is required. E. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements:

(1)Eliminate drafting errors and ambiguity;

(2)write regulations to minimize litigation; and

(3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by sections 3(a) and 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 sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. Executive Order 12988 does not apply to this rulemaking notice because DOE is merely modifying the Replacement Fuel Goal provided in section 502(b)(2) of EPAct 1992, and is not establishing any regulations that would impose any requirements on any person or entity. F. 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. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined today's modification of the Replacement Fuel Goal and has determined that it will not preempt State law and 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. G. Review of Impact on State Governments—Economic Impact on States Section 1(b)(9) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (September 30, 1993), established the following principle for agencies to follow in rulemakings: “Wherever feasible, agencies shall seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. In addition, as appropriate, agencies shall seek to harmonize Federal regulatory actions with regulated State, local and tribal regulatory and other governmental functions.” Because DOE is modifying the Replacement Fuel Goal under section 502(b)(2) of EPAct 1992, and is not establishing any requirements, no significant impacts upon State and local governments are anticipated. The position of State fleets currently covered under the existing EPAct 1992 fleet program is unchanged by this action. H. Review of Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires each Federal agency to assess the effects of Federal regulatory actions on State, local and tribal governments and the private sector. The Act also requires a Federal agency to develop an effective process to permit timely input by elected officials 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 in the **Federal Register** a statement of policy on its process for intergovernmental consultation under the Act. 62 FR 12820. The final rule published today does not establish or contain any Federal mandate, so the requirements of the Unfunded Mandates Reform Act do not apply. I. Review of Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. Today's final rule does 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. J. Review of Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for 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), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's final rule under the OMB and DOE guidelines, and has concluded that it is consistent with applicable policies in those guidelines. K. Review Under Executive Order 13175 Under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (November 9, 2000), DOE is required to consult with Indian tribal officials in development of regulatory policies that have tribal implications. Today's final rule does not have such implications. Accordingly, Executive Order 13175 does not apply. L. 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 preparation and submission to OMB of a Statement of Energy Effects for significant regulatory actions under Executive Order 12866 that are likely to have a significant adverse effect on the supply, distribution, or use of energy. A modification to the Replacement Fuel Goal under EPAct 1992 section 502(b)(2) does not require fleets, suppliers of energy, or distributors of energy to do or to refrain from doing anything. Consequently, DOE has concluded there is no need for a Statement of Energy Effects. M. Congressional Notification As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's Final Rule prior to the effective date set forth at the outset of this Final Rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2). VIII. Approval by the Office of the Secretary The issuance of this Final Rule for the Replacement Fuel Goal modification has been approved by the Office of the Secretary. List of Subjects in 10 CFR Part 490 Administrative practice and procedure, Energy conservation, Fuel economy, Gasoline, Motor vehicles, Natural gas, Penalties, Petroleum, Reporting, and recordkeeping requirements. Issued in Washington, DC, on March 6, 2007. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. For the reasons set forth in the Preamble, the Department of Energy is amending Chapter II of title 10 of the Code of Federal Regulations as set forth below: PART 490—ALTERNATIVE FUEL TRANSPORTATION PROGRAM 1. The authority citation for part 490 is revised to read as follows: Authority: 42 U.S.C. 7191 *et seq.* ; 42 U.S.C. 13201, 13211, 13220, 13251 *et seq.* 2. In § 490.1 of subpart A, paragraph

(b)is revised to read as follows: § 490.1 Purpose and Scope.

(b)The provisions of this subpart cover:

(1)The definitions applicable throughout this part;

(2)Procedures to obtain an interpretive ruling and to petition for a generally applicable rule to amend this part; and

(3)The goal of the replacement fuel supply and demand program established under section 502(a) of the Act (42 U.S.C. 13252(a)). 3. Subpart A is amended by adding § 490.8 to read as follows: § 490.8 Replacement fuel production goal. The goal of the replacement fuel supply and demand program established by section 502(b)(2) of the Act (42 U.S.C. 13252(b)(2)) and revised by DOE pursuant to section 504(b) of the Act (42 U.S.C. 13254(b)) is to achieve a production capacity of replacement fuels sufficient to replace, on an energy equivalent basis, at least 30 percent of motor fuel consumption in the United States by the year 2030. [FR Doc. E7-4324 Filed 3-14-07; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27267; Directorate Identifier 2002-NE-40-AD; Amendment 39-14991; AD 2007-06-10] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc RB211-524 Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive

(AD)for Rolls Royce plc

(RR)RB211-524 series turbofan engines with certain part number (P/N) intermediate pressure compressor

(IPC)stage 5 disks installed. That AD currently requires new reduced IPC stage 5 disk cyclic limits. This AD requires the same reduced IPC stage 5 disk cyclic limits, requires removal from service of affected disks that already exceed the new reduced cyclic limit, and, removal from service of other affected disks before exceeding their cyclic limits using a drawdown schedule. This AD also exempts disks reworked to RR Service Bulletin

(SB)No. RB.211-72-E182, Revision 1, dated July 30, 2004, and allows an on-wing eddy current inspection

(ECI)on RB211-524G and RB211-524H series engines. This AD results from the manufacturer issuing a revised Alert Service Bulletin

(ASB)to remove certain disks from applicability, and to allow an on-wing ECI on RB211-524G and RB211-524H series engines. We are issuing this AD to prevent failure of the IPC stage 5 disk, which could result in uncontained engine failure and possible damage to the airplane. DATES: This AD becomes effective April 19, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of April 19, 2007. ADDRESSES: You can get the service information identified in this AD from Rolls-Royce plc, P.O. Box 31 Derby, DE248BJ, United Kingdom; telephone 011-44-1332-242424; fax 011-44-1332-249936. You may examine the AD docket on the Internet at *http://dms.dot.gov* or in Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7178; fax

(781)238-7199; e-mail: *ian.dargin@faa.gov.* SUPPLEMENTARY INFORMATION: The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to RR RB211-524 series turbofan engines with certain P/N IPC stage 5 disks installed. We published the proposed AD in the **Federal Register** on July 11, 2006 (71 FR 39025). That action proposed to require: • Establishing new reduced IPC stage 5 disk cyclic limits. • Removing from service affected disks that already exceed the new reduced cyclic limit. • Removing from service other affected disks before exceeding their cyclic limits, using a drawdown schedule. • Allowing optional inspections at each shop visit or an on-wing ECI to extend the disk life beyond the specified life. 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. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Request To Add a Note One commenter, Rolls-Royce plc, requests that we add a note, just above compliance paragraph (j)(5), that states: “To qualify for maximum alleviation since last NDT inspection (see Table 5 of this AD) it is recommended that discs be ECI inspected using paragraph 3.D. of the Accomplishment Instructions of RR Alert Service Bulletin No. RB.211-72-AD428, Revision 5, dated March 18, 2005.” The commenter feels that this note adds clarification to the AD compliance. We do not agree. The note is identified in the service bulletin that is incorporated by reference, and need not be included in the text of the AD. We did not change the AD. Request To Add Engine Series Rolls-Royce plc requests that we add the RB211-524B/B3 engine series to compliance paragraph (k)(1), and add the RB211-524H2 and RB211-524H2-T engine series to compliance paragraph (k)(2), as they need to be included, the same as they appear in the service bulletin. We agree and added those engine series to the paragraphs. Clarification of Paragraph

(g)Since we issued the proposed AD, we reviewed the wording in paragraph

(g)and realized that the compliance times in that paragraph were in conflict. We clarified that paragraph. It now states to comply with the reduced cyclic life limits in Table 3 of this AD within 30 days after the effective date of this AD, or conduct optional qualifying nondestructive test

(NDT)inspections before December 1, 2008, to extend the IPC stage 5 disk life as specified in paragraph

(i)of this AD. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Docket Number Change We are transferring the docket for this AD to the Docket Management System as part of our on-going docket management consolidation efforts. The new Docket No. is FAA-2007-27267. The old Docket No. became the Directorate Identifier, which is 2002-NE-40-AD. This AD might get logged into the DMS docket, ahead of the previously collected documents from the old docket file, as we are in the process of sending those items to the DMS. Costs of Compliance We estimate this AD will not affect any engines installed on airplanes of U.S. registry. Based on this, we estimate this AD will not have any cost to U.S. operators. 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 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 Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration 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 removing Amendment 39-14202 (70 FR 43036, July 26, 2005) and by adding a new airworthiness directive, Amendment 39-14991, to read as follows: **2007-06-10 Rolls-Royce plc:** Amendment 39-14991. Docket No. FAA-2007-27267; Directorate Identifier 2002-NE-40-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective April 19, 2007. Affected ADs

(b)This AD supersedes AD 2005-15-13, Amendment 39-14202. Applicability

(c)This AD applies to the Rolls-Royce plc

(RR)RB211-524 series turbofan engines listed in the following Table 1, with intermediate pressure compressor

(IPC)stage 5 disk part numbers (P/Ns) listed in Table 2 of this AD, installed. Table 1.—Engine Models Affected -524B-02 -524B-B-02 -524B3-02 -524B4-02 -524B4-D-02 -524B2-19 -524B2-B-19 -524C2-19 -524C2-B-19 -524D4-19 -524D4-B-19 -524D4X-19 -524D4X-B-19 -524D4-39 -524D4-B-39 -524G2-19 -524G2-T-19 -524G3-19 -524G3-T-19 -524H2-19 -524H2-T-19 -524H-36 -524H-T-36 These engines are installed on, but not limited to, Boeing 747, 767, and Lockheed L-1011 series airplanes. Table 2.—IPC Stage 5 Disk P/Ns Affected LK60130 LK65932 LK69021 LK81269 LK83282 LK83283 UL12290 UL15743 UL15744 UL15745 UL19132 UL20785 UL20832 UL23291 UL25011 UL36821 UL36977 UL36978 UL36979 UL36980 UL36981 UL36982 UL36983 UL37078 UL37079 UL37080 UL37081 UL37082 UL37083 UL37084 Unsafe Condition

(d)This AD results from the manufacturer issuing a revised Alert Service Bulletin

(ASB)to remove certain disks from applicability and to allow an on-wing eddy current inspection

(ECI)on RB211-524G and RB211-524H series engines. The actions specified in this AD are intended to prevent failure of the IPC stage 5 disk, which could result in uncontained engine failure and possible damage to 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. Exempted Disks

(f)For engines with an IPC stage 5 disk P/N listed in Table 2 of this AD, reworked to RR SB No. RB.211-72-E182, Revision 1, dated July 30, 2004, no further action is necessary. Cycle Limits

(g)Comply with the reduced cyclic life limits in Table 3 of this AD within 30 days after the effective date of this AD, or conduct optional qualifying nondestructive test

(NDT)inspections before December 1, 2008 to extend the IPC stage 5 disk life, as specified in paragraph

(i)of this AD. Table 3.—Cyclic Life Limits Without Qualifying NDT Inspection Date of reduced life limit Engine models -524G2, G2-T, G3, G3-T, H2, H2-T, H-36, H-T-36 -524D4, D4-B, D4-B-39, D4X, D4X-B, D4-39 -524B2, B2-B, C2, C2-B -524B-02, B-B-02, B3-02, B4-02, B4-D-02 November 30, 2002 13,500 cycles-in-service

(CIS)16,150 CIS 16,000 CIS 16,200 CIS. April 1, 2003 13,500 CIS 13,500 CIS 13,500 CIS 14,000 CIS. December 1, 2003 12,000 CIS 13,500 CIS 13,500 CIS 14,000 CIS. December 1, 2004 11,000 CIS 13,500 CIS 12,000 CIS 12,000 CIS. December 1, 2005 11,000 CIS 12,000 CIS 12,000 CIS 12,000 CIS.

(h)On December 1, 2008, the revised cyclic life limits specified in Table 4 of this AD become effective. Incorporate the revised cyclic life limits specified in Table 4 of this AD into the RR Time Limits Manual, 05-10-01. Table 4.—Cyclic Life Limits on December 1, 2008 Date of reduced life limit Engine models -524G2, G2-T, G3, G3-T, H2, H2-T, H-36, H-T-36 -524D4, D4-B, D4-B-39, D4X, D4X-B, D4-39 -524B2, B2-B, C2, C2-B -524B-02, B-B-02, B3-02, B4-02, B4-D-02 December 1, 2008 7,830 CIS 8,700 CIS 8,900 CIS 9,000 CIS. Optional Inspections

(i)Before December 1, 2008, you may perform an optional NDT inspection on-wing or at each shop visit to extend the disk life. Guidance for these inspections is provided in paragraphs

(j)or

(k)of this AD. Optional Inspections at Shop Visit

(j)Perform optional inspections at shop visit, as follows:

(1)Remove corrosion protection from IPC stage 5 disk. Information on corrosion protection removal can be found in the Engine Maintenance Manual.

(2)Perform a visual inspection and a binocular inspection of the IPC stage 5 disk for corrosion pitting at the cooling air holes and defender holes in the disk front spacer arm. Follow paragraph 3.C. of the Accomplishment Instructions of RR ASB No. RB.211-72-AD428, Revision 5, dated March 18, 2005. The RR Engine Maintenance Manual, Inspection Check-00 (ATA 72-32-31-200-000), contains limits for corrosion pitting of the IPC stage 5 disk.

(3)If the disk has corrosion pitting in excess of limits, remove the disk from service.

(4)If the disk is free from corrosion pitting, perform a magnetic penetrant inspection

(MPI)of the entire disk as follows:

(i)For RB211-524G2-T, RB211-524G3-T, and RB211-524H-T series engines, the RR Engine Maintenance Manual, Inspection Check 08 (ATA 72-32-31-200-008), contains limits for corrosion pitting of the IPC stage 5 disk.

(ii)For RB211-524G2, RB211-524G3, and RB211-524H series engines, the RR Engine Maintenance Manual, Inspection Check 09 (ATA 72-32-31-200-009), contains limits for corrosion pitting of the IPC stage 5 disk.

(iii)If the disk passes the MPI and you find no cracks, complete all other inspections, re-apply corrosion protection to the disk, and return the disk to service using the cyclic limits allowed by paragraph

(m)of this AD. RR Repair FRS5900 contains information on re-applying corrosion protection.

(5)If the disk has corrosion pitting that is within limits, do the following:

(i)Perform an ECI on all disk cooling air holes, defender holes, and inner and outer faces. Use paragraph 3.D. of the Accomplishment Instructions of RR ASB No. RB.211-72-AD428, Revision 5, dated March 18, 2005. The RR Engine Maintenance Manual, Inspection Check-00 (ATA 72-32-31-200-000), contains limits for corrosion pitting of the IPC stage 5 disk.

(ii)If the disk passes the ECI and you find no cracks, perform an MPI on the entire disk.

(iii)If the disk passes the MPI and you find no cracks, re-apply corrosion protection to the disk, and return the disk to service using the cyclic limits allowed by paragraph

(m)of this AD. Optional On-Wing Eddy Current Inspections

(k)You may perform an optional on-wing ECI of the IPC stage 5 disk only once between shop visit inspections as follows:

(1)For RB211-524B2/C2, RB211-524B/B3, and RB211-524B4/D4 series engines, use paragraphs 3.A. through 3.F. of the Accomplishment Instructions of RR SB No. RB.211-72-E148, dated March 13, 2003, and RR SB No. RB.211-72-E150, Revision 1, dated June 4, 2003.

(2)For RB211-524G2, RB211-524G2-T, RB211-524G3, RB211-524G3-T, RB211-524H, RB211-524H-T, RB211-524H2, and RB211-524H2-T series engines, use paragraphs 3.A. through 3.M. of the Accomplishment Instructions of RR SB No. RB.211-72-E171, Revision 1, dated February 8, 2005.

(3)If the disk passes the ECI and you find no cracks, you may extend the cycle life as specified in paragraph

(m)of this AD. Definition of Shop Visit

(l)The manufacturer defines a shop visit as the separation of an engine major case flange. This definition excludes shop visits when only field maintenance type activities are performed in lieu of performing them on-wing (such as to perform an on-wing inspection of a tail engine installation on a Lockheed L-1011 series airplane). Cyclic Life Extension

(m)Disks that pass an optional inspection may remain in service after that inspection for the additional cycles listed in the following Table 5, until the next inspection, until the cyclic life limit published in the RR Time Limits Manual, 05-10-01, is reached, or December 1, 2008, whichever occurs first. Table 5.—Cyclic Life Extension Type of extension Engine models -524G2, G2-T, G3, G3-T, H2, H2-T, H-36, H-T-36 (cycles) -524D4, D4-B, D4-B-39, D4X, D4X-B, D4-39 (cycles) -524B2, B2-B, C2, C2-B (cycles) -524B-02, B-B-02, B3-02, B4-02, B4-D-02 (cycles) Extension After Passing MPI 1,600 2,000 2,000 2,000 Extension After Passing In-Shop ECI 3,800 4,500 4,500 4,500 Extension After Passing On-Wing ECI 1,000 1,200 1,200 1,200 Disks That Have Been Intermixed Between Engine Models

(n)The RR Time Limits Manual, 05-00-01, contains information on intermixing disks between engine models. Alternative Methods of Compliance

(o)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. Credit for Previous Inspections

(p)Inspections done using RR SB No. RB.211-72-E150, dated April 17, 2003, SB No. RB.211-72-E171, dated December 14, 2004, SB No. RB.211-72-D428, Revision 3, dated June 30, 2003, and ASB No. RB.211-72-AD428, Revision 4, dated March 7, 2005, meet the requirements of this AD. Reporting Requirement

(q)Report findings of all inspections of the IPC stage 5 disk using paragraph 3.B.(2) of the Accomplishment Instructions of RR No. ASB RB.211-72-AD428, Revision 5, dated March 18, 2005. The Office of Management and Budget

(OMB)has approved the reporting requirements specified in Paragraph 3.B. of the Accomplishment Instructions of RR No. ASB RB.211-72-AD428, Revision 5, dated March 18, 2005, and assigned OMB control number 2120-0056. Related Information

(r)CAA airworthiness directive G-2005-0008, dated March 8, 2005, also addresses the subject of this AD.

(s)Contact Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7178; fax

(781)238-7199; e-mail: *ian.dargin@faa.gov* for more information about this AD. Material Incorporated by Reference

(t)You must use the service information specified in Table 6 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 6 of this AD in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Rolls-Royce plc, P.O. Box 31 Derby, DE248BJ, United Kingdom; telephone 011-44-1332-242424; fax 011-44-1332-249936 for a copy of this service information. 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 6.—Incorporation by Reference Rolls-Royce plc Service Bulletin (SB)/Alert Service Bulletin

(ASB)No. Page Revision Date SB No. RB.211-72-E148 All Original March 13, 2003. Total Pages: 83 SB No. RB.211-72-E150 All 1 June 4, 2003. Total Pages: 72 SB No. RB.211-72-E171 All 1 February 8, 2005 Total Pages: 71 ASB No. RB.211-72-AD428 All 5 March 18, 2005. Total Pages: 27 Appendix 1 of ASB No. RB.211-72-AD428 All 5 March 18, 2005. Total Pages: 4 Appendix 2 of ASB No. RB.211-72-AD428 All 5 March 18, 2005. Total Pages: 2 Appendix 3 of ASB No. RB.211-72-AD428 All 5 March 18, 2005. Total Pages: 5 Appendix 4 of ASB No. RB.211-72-AD428 All 5 March 18, 2005. Total Pages: 2 Issued in Burlington, Massachusetts, on March 7, 2007. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-4536 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26497; Directorate Identifier 2006-CE-082-AD; Amendment 39-14989; AD 2007-06-08] RIN 2120-AA64 Airworthiness Directives; Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko” Model SZD-50-3 “Puchacz” Gliders 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: Some cases of turnbuckle adjusting screws fatigue failure have occurred, due to lateral load component applied by pilot's foot. Such events may lead to rudder and pedals disconnection. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective April 19, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of April 19, 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: Gregory Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*

(816)329-4130; *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 5, 2007 (72 FR 485). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that some cases of turnbuckle adjusting screws fatigue failure have occurred, due to lateral load component applied by pilot's foot. Such events may lead to rudder and pedals disconnection. 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 highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 8 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $100 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 $2,080, or $260 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: **2007-06-08 Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko”:** Amendment 39-14989; Docket No. FAA-2006-26497; Directorate Identifier 2006-CE-082-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective April 19, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Model SZD-50-3 “Puchacz” Gliders, all serial numbers, certificated in any category. Reason

(d)The mandatory continuing airworthiness information

(MCAI)states: Some cases of turnbuckle adjusting screws fatigue failure have occurred, due to lateral load component applied by pilot's foot. Such events may lead to rudder and pedals disconnection. Actions and Compliance

(e)Unless already done, within the next 3 calendar months after April 19, 2007 (the effective date of this AD), install the extra pull rod between the rear pedals and turnbuckle adjusting screws following Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006, except as specified in paragraphs (e)(1) through (e)(4) of this AD. For owners/operators that have installed an additional short cable between the rear seat pedal and turnbuckle prior to Allstar PZL's issuance of Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006, this additional short cable assembly must comply with the requirements of Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006. Upon completion, a logbook entry is required.

(1)Paragraph 1 of Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006, describes the dimension length of the extra segment pull rod to be 140 mm. Modify this to read: “140 mm (5.5118 inches).”

(2)Paragraph 4 of Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006, describes the dimensions of the short pull rod to be 3 mm diameter core and approximately 140 mm. Modify this to read: “3 mm (0.1181 inch) and 140 mm (5.5118 inches).”

(3)Paragraph 4.4 of Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006, describes a 1 mm diameter cotter pin. Modify this to read: “1 mm (0.03937 inch).”

(4)Paragraph 5 of Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 2006, reads, “The parts necessary for modification are available at Allstar PZL Glider, or substitute aircraft parts may be used—capable to withstand a load of 6100N at minimum.” Change this to read: “The parts necessary for modification are available at Allstar PZL Glider, or substitute aircraft parts may be used—capable to withstand a load of 6100N (1,372 lbs) at minimum. If a substitute part is used, the hole diameter specified in Figure 1 of the service bulletin as ‘Ø 6 Hg' means a 6 mm (0.2362 inch) diameter hole with a dimensional tolerance of +0.03 mm (+0.0012 inch). Contact the manufacturer for further details.” FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: Paragraphs (e)(1) through (e)(4) of this AD have been added to clarify certain procedures in the service bulletin. 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:* Gregory Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*

(816)329-4130; *fax:*

(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(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. Material Incorporated by Reference

(g)You must use Allstar PZL Glider Sp. Z o.o. Mandatory Service Bulletin No. BE-057/SZD-50-3/2006 “PUCHACZ”, dated October 16, 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 AllStar PZL Glider Sp. zo.o., ul. Cieszyńska 325, 43 300 Bielsko-Biala; *telephone:* +48 (0)33 8125021; *fax:* +48 (0)33 8123739; *e-mail:* office@szd.com.pl.

(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/code_of_federal_regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on March 7, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4541 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25739; Directorate Identifier 2006-CE-46-AD; Amendment 39-14988; AD 2007-06-07] RIN 2120-AA64 Airworthiness Directives; Raytheon Aircraft Company Models 58 and G58 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: The FAA adopts a new airworthiness directive

(AD)for certain Raytheon Aircraft Company

(RAC)Models 58 and G58 airplanes with optional propeller unfeathering accumulators installed. This AD requires you to inspect the left propeller accumulator oil tube assembly for any chafing; replace the propeller accumulator oil tube assembly if any chafing is found; and reposition and secure with clamps both the left engine manifold pressure hose and its metal identification tags to avoid contact with other tubes, hoses, electrical wires, parts, components, and structure. This AD results from several reports on the affected airplanes of chafing damage on the left propeller accumulator oil tube assembly. We are issuing this AD to detect, correct, and prevent any chafing damage of the left propeller accumulator oil tube assembly, which could result in loss of engine oil. Loss of engine oil may lead to fire or smoke in the engine compartment, inability to unfeather the propeller, engine damage, or loss of engine power. DATES: This AD becomes effective on April 19, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of April 19, 2007. ADDRESSES: To get the service information identified in this AD, contact Raytheon Aircraft Company, 9709 E. Central, Wichita, Kansas 67201-0085; telephone:

(800)429-5372 or

(316)676-3140. 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-2006-25739; Directorate Identifier 2006-CE-46-AD. FOR FURTHER INFORMATION CONTACT: Jeff Pretz, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:

(316)946-4153; fax:

(316)946-4407. SUPPLEMENTARY INFORMATION: Discussion On October 10, 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 RAC Models 58 and G58 airplanes with optional propeller unfeathering accumulators installed. This proposal was published in the **Federal Register** as a notice of proposed rulemaking

(NPRM)on October 17, 2006 (71 FR 60924). The NPRM proposed to require you to inspect the left propeller accumulator oil tube assembly for any chafing; replace the propeller accumulator oil tube assembly if any chafing is found; and reposition and secure with clamps both the left engine manifold pressure hose and its metal identification tags to avoid contact with other tubes, hoses, electrical wires, parts, components, and structure. 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: Service Information and Derived ADs The Modification and Replacement of Parts Association (MARPA) states that frequently ADs are derived from service information originating with the type certificate holder or its suppliers. MARPA also states that manufacturer's service documents are privately authored instruments generally enjoying copyright protection against duplication and distribution. MARPA contends that when a service document is incorporated by reference under 5 U.S.C. 552(a) and 1 CFR part 51 into a public document such as an AD, it loses its private, protected status and becomes itself a public document. MARPA explains that if a service document is used as a mandatory element of compliance it should not simply be referenced, but should be incorporated into the regulatory document. MARPA states that public laws by definition must be public, which means they cannot rely for compliance upon private writings, especially when the writings originate in a foreign country. MARPA adds that the interpretation of a document is not a question of fact, but of law, bound by the figurative four corners of the document; therefore, unless the service document is incorporated by reference, a court of law will not consider it when interpreting the AD. MARPA is concerned that failure to incorporate-by-reference the relevant service information could result in a court decision invalidating the AD. MARPA advises that it was informed that service documents are usually not incorporated into NPRMs, but only into final actions. MARPA notes that there is no indication in the NPRM that the FAA intends to incorporate by reference the necessary service information; in addition, there is no indication of which service documents are mandatory and which are merely sources of additional service information; therefore, the reader is unsure of the FAA's intent. MARPA asks that future proposed actions indicate the FAA intent by including the following, or a similar statement: “We intend to incorporate by reference the following publications.” MARPA also states that incorporation by reference service documents should be made available to the public by publication in the Docket Management System

(DMS)keyed to the action that incorporates them. MARPA adds that, under the aforementioned authorities, incorporation by reference is a technique used to reduce the size of the **Federal Register** when the information is already available to the affected individuals. MARPA notes that, traditionally, “affected individuals” has meant aircraft owners and operators who are generally provided service information by the manufacturer. MARPA states that a new class of affected individuals has emerged since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA adds that this new class includes maintenance and repair organizations (MRO), component servicing and repair shops, parts purveyors and distributors and organizations manufacturing or servicing alternatively certified parts under section 21.303 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303). Further, MARPA notes that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper. Therefore, MARPA asks that the service documents deemed essential to the accomplishment of the NPRM be incorporated by reference into the regulatory instrument, and published in DMS prior to release of the AD. We understand MARPA's comment concerning incorporation by reference. The Office of the Federal Register

(OFR)requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the documents necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information. The FAA does not concur with the commenter's request to indicate in an NPRM our intent to incorporate service information by reference. When we propose that actions be accomplished in accordance with certain service information in an NPRM, the public may assume we intend to IBR that service information, as requested by the Office of the Federal Register. Service information that is cited in the proposed AD as a source of additional information is not presented as a requirement, and the public may assume we do not intend to IBR that service information. No change to this final rule is necessary in regard to the commenter's request. In regard to MARPA's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an 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. No change to the final rule is necessary in response to this comment. 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 affects 49 airplanes in the U.S. registry. We estimate the following costs to do the inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1 work-hour × $80 per hour = $80 $5 $85 $4,165 We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost Parts cost Total cost per airplane 1 work-hour × $80 per hour = $80 $39 $119 RAC will provide warranty credit as specified in RAC Mandatory Service Bulletin No. SB 61-3806, issued: August 2006. 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-2006-25739; Directorate Identifier 2006-CE-46-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: **2007-06-07 Raytheon Aircraft Company:** Amendment 39-14988; Docket No. FAA-2006-25739; Directorate Identifier 2006-CE-46-AD. Effective Date

(a)This AD becomes effective on April 19, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Models 58 and G58 airplanes, serial numbers TH-2097 through TH-2150, with optional propeller unfeathering accumulators installed, that are certificated in any category. Unsafe Condition

(d)This AD results from several reports on the affected airplanes of chafing damage on the left propeller accumulator oil tube assembly. This includes an in-flight oil leak from the left engine on a Raytheon Aircraft Company Model G58 airplane. We are issuing this AD to detect, correct, and prevent any chafing damage of the left propeller accumulator oil tube assembly, which could result in loss of engine oil. Loss of engine oil may lead to fire or smoke in the engine compartment, inability to unfeather the propeller, engine damage, or loss of engine power. Compliance

(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures

(1)Inspect the left propeller accumulator oil tube assembly for chafing *For airplanes that have not had a 100-hour time-in-service

(TIS)inspection or the inspection following Raytheon Safety Communiqué No. 271, dated May 2006:* Within the next 25 hours TIS after April 19, 2007 (the effective date of this AD). *For airplanes that have had a 100-hour TIS inspection or the inspection following Raytheon Safety Communiqué No. 271, dated May 2006:* Within the next 50 hours TIS after April 19, 2007 (the effective date of this AD) Follow Raytheon Aircraft Company Mandatory Service Bulletin No. SB 61-3806, issued: August 2006.

(2)If any chafing is found in the inspection required by paragraph (e)(1) of this AD, replace the propeller accumulator oil tube assembly Before further flight after the inspection required by paragraph (e)(1) of this AD Follow Raytheon Aircraft Company Mandatory Service Bulletin No. SB 61-3806, issued: August 2006.

(3)Reposition and secure with clamps the left manifold pressure hose and its metal identification tags to ensure clearance between it and all tubes, hoses, electrical wires, parts, components, and structure Before further flight after the inspection or replacement required in paragraphs (e)(1) and (e)(2) of this AD Follow Raytheon Aircraft Company Mandatory Service Bulletin No. SB 61-3806, issued: August 2006. Material Incorporated by Reference

(f)You must use Raytheon Aircraft Company Mandatory Service Bulletin No. SB 61-3806, issued: August 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 Raytheon Aircraft Company, 9709 E. Central, Wichita, Kansas 67201-0085; telephone:

(800)429-5372 or

(316)676-3140.

(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 March 7, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4523 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24369; Directorate Identifier 2006-NM-001-AD; Amendment 39-14990; AD 2007-06-09] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-600, -700, -700C, and -800 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive (AD), which applies to certain Boeing Model 737-600, -700, -700C, and -800 series airplanes. That AD currently requires replacing the point “D” splice fitting between windows number 1 and 2 with a new splice fitting; performing an eddy current inspection for cracking of the holes in the structure common to the new splice fitting, including doing any related investigative actions; and performing corrective actions if necessary. This new AD adds repetitive inspections for cracking of the skin just below each splice fitting, and related corrective actions if necessary. This AD results from full-scale fuselage fatigue testing on the splice fitting that failed prior to the design objective on Boeing Model 737-800 series airplanes, and a report of a cracked splice fitting on an operational airplane. We are issuing this AD to prevent cracking of the existing fitting, which may result in cracking through the skin and consequent decompression of the flight deck. DATES: This AD becomes effective April 19, 2007. The incorporation by reference of Boeing Alert Service Bulletin 737-53A1222, Revision 3, dated January 3, 2007, as listed in the regulations, is approved by the Director of the Federal Register as of April 19, 2007. On December 21, 2005 (70 FR 72595, December 6, 2005), the Director of the Federal Register approved the incorporation by reference of Boeing Alert Service Bulletin 737-53A1222, Revision 2, dated October 20, 2005. 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 Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6447; fax

(425)917-6590. 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 supersedes AD 2005-25-03, amendment 39-14396 (70 FR 72595, December 6, 2005). The existing AD applies to certain Boeing Model 737-600, -700, -700C, and -800 series airplanes. That NPRM was published in the **Federal Register** on April 11, 2006 (71 FR 18251). That NPRM proposed to continue to require replacing the point “D” splice fitting between windows number 1 and 2 with a new splice fitting; performing an eddy current inspection for cracking of the holes in the structure common to the new splice fitting, including doing any related investigative actions; and performing corrective actions if necessary. That NPRM also proposed to add repetitive inspections for cracking of the skin just below each splice fitting, and related corrective actions if necessary. Explanation of Revision Service Information The NPRM referred to Boeing Alert Service Bulletin 737-53A1222, Revision 2, as the appropriate source of service information for the inspection of paragraph (g). Boeing has since revised the service bulletin. Revision 3, dated January 3, 2007, corrects and clarifies certain information and adds fastener options, but adds no additional work for airplanes with splice fittings replaced as specified in a previous version of the service bulletin. We have revised this final rule to refer to Revision 3 of the service bulletin for the inspection in paragraph (g), and to provide credit for work done in accordance with Revision 2. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM. Support for the NPRM One commenter, Continental Airlines, agrees with the NPRM. Request To Provide an Alternate Method of Compliance

(AMOC)KLM Engineering and Maintenance requests that the FAA review the inspection methods for the proposed one-time inspection of certain fastener locations during the point “D” splice fitting replacement. The commenter advises that, for certain fastener locations, an eddy current open fastener hole is impractical and may not even be possible due to structure build-up. The commenter requests that an AMOC be given specifying fluorescent penetrant inspections instead of the eddy current open fastener hole inspections. The commenter notes that use of the fluorescent penetrant inspections has been coordinated with the manufacturer. Since we issued the NPRM, the manufacturer issued Revision 3 of Boeing Alert Service Bulletin

(ASB)737-53A1222. Revision 3, dated January 3, 2007, contains procedures for performing fluorescent penetrant inspections. This final rule incorporates the revised service bulletin; therefore, no AMOC will be necessary to do this type of inspection. We have not changed this AD regarding this issue. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance There are about 563 airplanes of the affected design in the worldwide fleet. We estimate that about 243 airplanes are on the U.S. Register, and that the average labor rate is $80 per hour. The following table provides the estimated costs for U.S. operators to comply with this AD. Estimated Costs Action Work hours Parts Cost per airplane Fleet cost Replacing splice fittings with new fittings (required by AD 2005-25-03) 36 $15,445 $18,325 $4,452,975 External detailed inspection (new action) 1 0 80 1 19,440 1 Per inspection cycle. 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 removing amendment 39-14396 (70 FR 72595, December 6, 2005) and by adding the following new airworthiness directive (AD): **2007-06-09 Boeing:** Amendment 39-14990. Docket No. FAA-2006-24369; Directorate Identifier 2006-NM-001-AD. Effective Date

(a)This AD becomes effective April 19, 2007. Affected ADs

(b)This AD supersedes AD 2005-25-03. Applicability

(c)This AD applies to Boeing Model 737-600, -700, -700C, and -800 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin

(ASB)737-53A1222, Revision 3, dated January 3, 2007. Unsafe Condition

(d)This AD results from full-scale fuselage fatigue testing on a splice fitting that failed prior to the design objective on Boeing Model 737-800 series airplanes, and a report of a cracked splice fitting on an operational airplane. We are issuing this AD to prevent cracking of the existing fitting, which may result in cracking through the skin and consequent decompression of the flight deck. 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. Restatement of Certain Requirements of AD 2005-25-03 Replacing the Splice Fittings

(f)Replace the splice fittings with new splice fittings in accordance with the Accomplishment Instructions of Boeing ASB 737-53A1222, Revision 2, dated October 20, 2005, or Revision 3, dated January 3, 2007, at the times specified in paragraph (f)(1) or (f)(2) of this AD, as applicable. Before further flight, do any related investigative actions by accomplishing all the applicable actions specified in the Accomplishment Instructions.

(1)For airplanes that have accumulated fewer than 13,500 total flight cycles as December 21, 2005 (the effective date of AD 2005-25-03): Replace prior to the accumulation of 13,500 total flight cycles, or within 1,000 flight cycles after December 21, 2005, whichever occurs later.

(2)For airplanes that have accumulated 13,500 or more total flight cycles as of December 21, 2005: Replace at the later of the times specified in paragraphs (f)(2)(i) and (f)(2)(ii) of this AD.

(i)Prior to the accumulation of 18,000 total flight cycles, or within 1,000 flight cycles after December 21, 2005, whichever occurs first.

(ii)Within 90 days after December 21, 2005. New Requirements of This AD Repetitive Inspections

(g)Within 24,000 flight cycles after accomplishing the actions specified in paragraph

(f)of this AD, perform an external detailed inspection of the skin just below each splice fitting, in accordance with the Accomplishment Instructions of Boeing ASB 737-53A1222, Revision 3, dated January 3, 2007. Thereafter, repeat the external detailed inspections at intervals not to exceed 24,000 flight cycles. Corrective Actions

(h)If any cracking is found during any inspection required by this AD, prior to further flight, repair in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, or with a method approved in accordance with the procedures specified in paragraph

(j)of this AD. Acceptable Method of Compliance

(i)Replacing the splice fitting and any related investigative actions before December 21, 2005 (the effective date of AD 2005-25-03), in accordance with Boeing Service Bulletin 737-53-1222, dated June 6, 2002; or Boeing ASB 737-53A1222, Revision 1, dated January 30, 2003, is acceptable for compliance with the requirements of paragraph

(f)of this AD. An inspection done before the effective date of this AD in accordance with Boeing ASB 737-53A1222, Revision 2, dated October 20, 2005, is acceptable for compliance with the requirements of paragraph

(g)of this AD. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle ACO, FAA, 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.

(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

(4)AMOCs approved previously in accordance with AD 2005-25-03, amendment 39-14396, are approved as AMOCs for the corresponding provisions of paragraphs

(f)and

(h)of this AD. Material Incorporated by Reference

(k)You must use Boeing Alert Service Bulletin 737-53A1222, Revision 2, dated October 20, 2005; or Boeing Alert Service Bulletin 737-53A1222, Revision 3, dated January 3, 2007; to perform the actions that are required by this AD, unless the AD specifies otherwise.

(1)The incorporation by reference of Boeing Alert Service Bulletin 737-53A1222, Revision 3, dated January 3, 2007, is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

(2)On December 21, 2005 (70 FR 72595, December 6, 2005), the Director of the Federal Register approved the incorporation by reference of Boeing Alert Service Bulletin 737-53A1222, Revision 2, dated October 20, 2005.

(3)Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, S.W., 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 March 7, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4540 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-26834; Directorate Identifier 2006-NM-235-AD; Amendment 39-14984; AD 2007-06-03] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330 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 airworthiness authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as an incomplete discharge of the extinguishing agent in the fire zone, which could lead, in the worst case, in combination with an engine fire, to a temporary uncontrolled engine fire. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective April 19, 2007. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 19, 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: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1175; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This 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 allow 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. 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 12, 2007 (72 FR 1470). That NPRM proposed to require a one-time detailed visual inspection for the presence of the retaining-ring on the discharge head assembly of the engine fire extinguishing system, and repair if necessary. The MCAI states that one Model A330 operator discovered that the line connection to the discharge head could not be properly secured during engine fire bottle replacement, due to a missing retaining-ring. Inspections revealed that all four discharge-heads line connectors, two per engine, were missing the retaining-ring. It was confirmed later that it was a quality issue. The function of the retaining-ring is to secure a tight connection between the fire-extinguishing line and the discharge head. In absence of the retaining-ring, in case of activation of the fire extinguishing system, the pressure exerted by the agent on the pipe could compromise the tightness of the connection, leading to an incomplete discharge of the extinguishing agent in the fire zone. This situation if not corrected could lead, in the worst case, in combination with an engine fire, to a temporary uncontrolled engine fire which constitutes an unsafe condition. Comments We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter, Jonathan Frederick, supports the NPRM. Conclusion We reviewed the available data, including the comments received, 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 a U.S. court of law. 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 our FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements, if any, take precedence over the actions copied from the MCAI. Costs of Compliance We estimate that this AD will affect 27 products of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $0 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 $8,640, or $320 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 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. 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: **2007-06-03 Airbus:** Amendment 39-14984. Docket No. FAA-2007-26834; Directorate Identifier 2006-NM-235-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective April 19, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Airbus Model A330 airplanes, all certified models, certificated in any category, all serial numbers up to 755 included. Reason

(d)The mandatory continuing airworthiness information

(MCAI)states that one Model A330 operator discovered that the line connection to the discharge head could not be properly secured during engine fire bottle replacement, due to a missing retaining-ring. Inspections revealed that all four discharge-heads line connectors, two per engine, were missing the retaining-ring. It was confirmed later that it was a quality issue. The function of the retaining-ring is to secure a tight connection between the fire-extinguishing line and the discharge head. In absence of the retaining-ring, in case of activation of the fire extinguishing system, the pressure exerted by the agent on the pipe could compromise the tightness of the connection, leading to an incomplete discharge of the extinguishing agent in the fire zone. This situation if not corrected could lead, in the worst case, in combination with an engine fire, to a temporary uncontrolled engine fire which constitutes an unsafe condition. The MCAI requires a one-time detailed visual inspection for the presence of the retaining-ring on the discharge head assembly of engine fire extinguishing system, and repair if necessary. Actions and Compliance

(e)Unless already done, do the following actions. Within 900 flight hours from the effective date of this AD: On both engine pylons (left hand and right hand), for all four engine fire extinguisher bottles, two per engine pylon, perform a one-time detailed visual inspection for the presence of the retaining ring on the discharge head of the bottles and apply all applicable corrective actions, in accordance with instructions defined in Airbus Service Bulletin A330-26A3037, dated July 26, 2006. Do all applicable corrective actions before further flight. Aircraft on which the four engine fire extinguishing bottles, 2 per engine pylon, have been removed and re-installed at the opportunity of hydrostatic test of engine fire extinguishing as per Airbus A330 Maintenance Review Board Report

(MRBR)task 26.21.00/04, are not concerned by this AD. Other FAA AD Provisions

(f)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, Attn: Todd Thompson, Aerospace Engineer, 1601 Lind Avenue, SW., Renton, Washington 98057-3356, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Material Incorporated by Reference

(g)You must use Airbus Service Bulletin A330-26A3037, excluding Appendix 01, dated July 26, 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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.

(3)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 March 5, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4380 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26516; Directorate Identifier 2006-NM-173-AD; Amendment 39-14983; AD 2007-06-02] RIN 2120-AA64 Airworthiness Directives; Airbus Model A318, A319, A320, and A321 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive (AD), which applies to all Airbus Model A318-100 and A319-100 series airplanes, Model A320-111 airplanes, and Model A320-200, A321-100, and A321-200 series airplanes. That AD currently requires repetitive inspections of the upper and lower attachments of the trimmable horizontal stabilizer actuator

(THSA)to measure for proper clearance and to detect cracks, damage, and metallic particles. The existing AD also requires corrective actions, if necessary, and reports of inspection findings. This new AD shortens the repetitive interval for inspecting the upper THSA attachment. This AD results from new test results on the secondary load path, which indicated the need to shorten the repetitive interval for inspecting the upper THSA attachment. We are issuing this AD to detect and correct failure of the THSA's primary load path, which could result in latent (undetected) loading and eventual failure of the THSA's secondary load path and consequent uncontrolled movement of the horizontal stabilizer and loss of control of the airplane. DATES: This AD becomes effective April 19, 2007. The Director of the Federal Register approved the incorporation by reference of Airbus Service Bulletin A320-27-1164, Revision 04, including Appendix 01, dated July 17, 2006, as of April 19, 2007. On May 5, 2006 (71 FR 16203, March 31, 2006), the Director of the Federal Register approved the incorporation by reference of Airbus Service Bulletin A320-27-1164, Revision 03, including Appendix 01, dated August 24, 2005. 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 Dulin, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2141; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the airworthiness directive

(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 supersedes AD 2006-07-09, amendment 39-14536 (71 FR 16203, March 31, 2006). The existing AD applies to all Airbus Model A318-100 and A319-100 series airplanes, Model A320-111 airplanes, and Model A320-200, A321-100, and A321-200 series airplanes. That NPRM was published in the **Federal Register** on December 8, 2006 (71 FR 71103). That NPRM proposed to continue to require the existing actions (repetitive inspections of the upper and lower attachments of the trimmable horizontal stabilizer actuator

(THSA)to measure for proper clearance and to detect cracks, damage, and metallic particles; corrective actions, if necessary; and reports of inspection findings). That NPRM proposed to shorten the repetitive interval for inspecting the upper THSA attachment. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM. Request To Extend Repetitive Interval The NPRM proposed to reduce the existing repetitive interval for inspecting the upper attachment—from 20 months to 10 months. Agreeing with the intent of the AD, Northwest Airlines nonetheless requests that we change this inspection interval to 11 months. The commenter reports that Northwest Airlines' inspection of 139 affected airplanes during accomplishment of AD 2006-07-09 has revealed no findings. Northwest Airlines is currently working with Airbus to better understand the reasons for the reduced inspection interval for the upper attachment. Northwest Airlines' current L-check interval is 21.5 months. The commenter therefore feels that an inspection interval of 11 months for the upper attachment would allow Northwest Airlines to accomplish alternate inspections in a hangar, and yet fulfill the intent of the AD. The commenter explains that a hangar environment would allow the use of a more effective, specialized workforce, and reduce the impact of correcting any finding. We disagree with the request to extend the compliance time. The absence of positive findings alone does not justify an extension of the compliance time in this case. The 10-month inspection interval for the upper attachment is based on the results of Airbus's tests of the endurance of the secondary load path under simulated loads. Northwest Airlines did not provide any data that would support the extension of the compliance time. We have not changed the final rule. Conclusion We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD as proposed. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this AD, per inspection cycle. Estimated Costs Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost 1 $80 None $80 700 $56,000 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 removing amendment 39-14536 (71 FR 16203, March 31, 2006) and by adding the following new airworthiness directive (AD): **2007-06-02 Airbus:** Amendment 39-14983. Docket No. FAA-2006-26516; Directorate Identifier 2006-NM-173-AD. Effective Date

(a)This AD becomes effective April 19, 2007. Affected ADs

(b)This AD supersedes AD 2006-07-09. Applicability

(c)This AD applies to all Airbus Model A318, A319, A320, and A321 airplanes, certificated in any category. Unsafe Condition

(d)This AD results from new test results on the secondary load path, which indicated the need to shorten the repetitive interval for inspecting the upper attachment of the trimmable horizontal stabilizer actuator (THSA). We are issuing this AD to detect and correct failure of the THSA's primary load path, which could result in latent (undetected) loading and eventual failure of the THSA's secondary load path and consequent uncontrolled movement of the horizontal stabilizer and loss of control 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. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” Repetitive Inspections: Lower THSA Attachment

(f)Within 20 months since first flight of the airplane, or within 600 flight hours after May 5, 2006 (the effective date of AD 2006-07-09), whichever occurs later: Do detailed inspections of the lower THSA attachments for proper clearances, and do related corrective actions as applicable, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1164, Revision 03, including Appendix 01, dated August 24, 2005; or Revision 04, including Appendix 01, dated July 17, 2006. After the effective date of this AD, only Revision 04 of the service bulletin may be used. Do corrective actions before further flight. Repeat the inspection thereafter at intervals not to exceed 20 months. Repetitive Inspections: Upper THSA Attachment

(g)At the earlier of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Do detailed inspections of the upper THSA attachment for cracks, damage, or metallic particles, and do related corrective actions as applicable, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1164, Revision 04, including Appendix 01, dated July 17, 2006, except as required by paragraph

(h)of this AD. Do corrective actions before further flight. Repeat the inspections thereafter at intervals not to exceed 10 months.

(1)At the latest of the times specified in paragraphs (g)(1)(i), (g)(1)(ii), and (g)(1)(iii) of this AD.

(i)Within 10 months since the first flight of the airplane.

(ii)Within 10 months after the most recent inspection of the upper THSA attachment done in accordance with Airbus Service Bulletin A320-27-1164, Revision 02, including Appendix 01, dated March 30, 2005; Revision 03, including Appendix 01, dated August 24, 2005; or Revision 04, including Appendix 01, dated July 17, 2006.

(iii)Within 100 days after the effective date of this AD.

(2)Within 20 months after the most recent inspection of the upper THSA attachment done in accordance with Airbus Service Bulletin A320-27-1164, Revision 02, including Appendix 01, dated March 30, 2005; Revision 03, including Appendix 01, dated August 24, 2005; or Revision 04, including Appendix 01, dated July 17, 2006. Repair Exceptions

(h)If any metallic particles are detected during any inspection required by paragraph

(g)of this AD: Repair the damage before further flight in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; the Direction Generale de l'Aviation Civile

(DGAC)(or its delegated agent); or the European Aviation Safety Agency

(EASA)(or its delegated agent). Acceptable Prior Actions

(i)Inspections of the lower THSA attachment done before May 5, 2006, in accordance with Airbus Alert Service Bulletin A320-27A1164, dated September 10, 2004; or Airbus Service Bulletin A320-27-1164, Revision 01, including Appendix 01, dated December 17, 2004; are acceptable for compliance with the inspection requirements of paragraph

(f)of this AD.

(j)Actions done before the effective date of this AD in accordance with Airbus Service Bulletin A320-27-1164, Revision 02, including Appendix 01, dated March 30, 2005; or Revision 03, including Appendix 01, dated August 24, 2005; are acceptable for compliance with the corresponding requirements of paragraphs

(f)and

(g)of this AD. Inspection Reports

(k)At the applicable time specified in paragraph (k)(1) or (k)(2) of this AD, send a report of the positive findings of all inspections required by paragraphs

(f)and

(g)of this AD to Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. The report must include the inspection results, a description of any discrepancies found, the airplane serial number, and the number of landings and flight hours on the airplane. Using Appendix 01 of Airbus Service Bulletin A320-27-1164, Revision 02, dated March 30, 2005; Revision 03, dated August 24, 2005; or Revision 04, dated July 17, 2006; is an acceptable method to comply with this paragraph. 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 contained in this AD and has assigned OMB Control Number 2120-0056.

(1)For any inspection done before the effective date of this AD: Send the report within 30 days after the effective date of this AD.

(2)For any inspection done after the effective date of this AD: Send the report within 30 days after the inspection. Alternative Methods of Compliance (AMOCs) (l)(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.

(m)EASA airworthiness directive 2006-0223, dated July 21, 2006, also addresses the subject of this AD. Material Incorporated by Reference

(n)You must use Airbus Service Bulletin A320-27-1164, Revision 03, including Appendix 01, dated August 24, 2005; or Airbus Service Bulletin A320-27-1164, Revision 04, including Appendix 01, dated July 17, 2006; as applicable; to perform the actions that are required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of Airbus Service Bulletin A320-27-1164, Revision 04, including Appendix 01, dated July 17, 2006, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

(2)On May 5, 2006 (71 FR 16203, March 31, 2006), the Director of the Federal Register approved the incorporation by reference of Airbus Service Bulletin A320-27-1164, Revision 03, including Appendix 01, dated August 24, 2005.

(3)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 March 2, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4382 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26231; Directorate Identifier 2006-CE-61-AD; Amendment 39-14985; AD 2007-06-04] RIN 2120-AA64 Airworthiness Directives; EADS SOCATA Model TBM 700 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 two fatigue failures of flap carriage rollpins that occurred on in-service airplanes. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective April 19, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of April 19, 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: Albert J. Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*

(816)329-4119; *fax:*

(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 December 26, 2006 (71 FR 77310). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states reports of two fatigue failures of flap carriage rollpins that occurred on in-service airplanes. The MCAI requires inspecting and applying torque values to the rollpins nuts. Comments We gave the public the opportunity to participate in developing this AD. We considered the comments received. Comment Issue No. 1: Use Consistent Language Raymond S. Benischeck comments on this AD due to the fact there is inconsistent language regarding the identification of the part in question. The commenter states: In portions of the NPRM we are told to inspect for a fracture of the flap carriage “ROLLPINS.” Elsewhere, the correct terminology “ROLLER PINS” is used. The correct terminology should be used throughout the document. The terminology used within the Discussion and Reason sections was copied directly from the associated MCAI. We are currently trying to use the language provided to us by the foreign airworthiness authority whenever possible. For consistency, we will change the phrase “roller pin” to “rollpin” in the final rule AD action to coincide with the MCAI. We are changing the final rule AD action based on this comment. Comment Issue No. 2: Clarify Paragraph (e)(1) of the Proposed AD Raymond S. Benischeck comments that clarification may be necessary in paragraph (e)(1) of the proposed AD in which instructions are given to check for correct torque of the roller pin. Although applying correct torque should reveal any discrepancies in this roller pin, the actual inspection is for the purposes of detecting broken rollpins. The instructions to do the actions stated in paragraph (e)(1) of the proposed AD are included in the referenced service bulletins. The AD mandates use of these instructions to comply with the AD. We are not changing the final rule AD action based on this comment. Comment Issue No. 3: Clarify Paragraph (e)(4) of the Proposed AD Raymond S. Benischeck comments that a question arises regarding paragraph

(4)of the proposed AD. Will aircraft in compliance with SB 70-138 still be required to perform the initial inspection before terminating action is considered to be in place? The statement “no further action is required” could be confusing since it seems to indicate at least one inspection for rollpin torque has been accomplished. If these aircraft are exempt from the inspection portion, the exception might better be noted in the serial number applicability portion in paragraph

(c)of the proposed AD. Both the MCAI and this AD state to do the action following SB70-122, which specifies in the Compliance section that those airplanes in compliance with SB 70-138 are not affected. In paragraph (e)(4) of the proposed AD, we restated this information. If we put the statement in the Applicability section, we would also have to add a statement about compliance with SB70-122 for consistency. We usually do not reference in the Applicability section that the AD exempts those airplanes that have already complied with the service bulletin we are referencing in the AD. We have determined that the phrase “unless already done” in the AD, as well as the statement in paragraph (e)(4) of the proposed AD, sufficiently communicates the necessary information. We are not changing the final rule AD action based on this comment. Comment Issue No. 4: Update Costs of Compliance EADS Socata comments the proposed AD specifies that required parts would cost about $100. Application of SB70-122 requires 4 cotter pins. This cost is negligible. EADS Socata also comments the proposed AD specifies that it would take about 1 work-hour per product. EADS Socata estimates that it would take 0.5 work-hour per product to inspect all flap inboard carriage rollpins. We agree with the commenter. We will change the Costs of Compliance section to reflect the above figures, using a work-hour number of 0.5 and a cost of parts number of $5 (negligible). We are changing the final rule AD action based on this comment. Comment Issue No. 5: Change the Applicability Section and Incorporate Revised Service Information EADS Socata comments the proposed AD applies to Model TBM700 airplanes, serial numbers 1 through 268, and 270 through 327. But SB70-122, Amendment 1, applies only to Model TBM700 airplanes, serial numbers 1 through 268, and 270 through 327, totaling more than 2,500 landings. Moreover, due to a new occurrence, EADS Socata has decided to lower this threshold to 1,500 landings and issued Amendment 2 of SB70-122, which includes this new threshold. The AD should be modified to incorporate the revised service information and change the Applicability section to read as follows: This AD applies to Model TBM700 airplanes, serial numbers 1 through 268, and 270 through 327, totaling more than 1,500 landings. We acknowledge the above compliance time. However, we did not incorporate a threshold into the NPRM. We used the compliance time of 100 hours time-in-service for all affected airplanes based on the type of condition and the fact that the torque value of the rollpins could be incorrect regardless of the amount of hours on the airplane. The instructions for doing the actions required by this AD are the same in Amendment 1 and Amendment 2 of SB70-122; therefore, we will incorporate by reference Amendment 2 of SB70-122 into the final rule AD action. Conclusion We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD. 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 a U.S. court of law. 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. These requirements, if any, take precedence over the actions copied from the MCAI. Costs of Compliance We estimate that this AD will affect 221 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 $5 (neglible) 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 $9,945 or $45 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: **2007-06-04 EADS SOCATA:** Amendment 39-14985; Docket No. FAA-2006-26231; Directorate Identifier 2006-CE-61-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective April 19, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Model TBM 700 airplanes, serial numbers 1 through 268, and 270 through 327, certificated in any category. Reason

(d)The mandatory continuing airworthiness information

(MCAI)states reports of two fatigue failures of flap carriage rollpins that occurred on in-service airplanes. Actions and Compliance

(e)Unless already done, do the following actions.

(1)Within the next 100 hours time-in-service

(TIS)after April 19, 2007 (the effective date of this AD), inspect all flap inboard carriage rollpins for proper torque values and correct as necessary before further flight.

(2)Repeat these inspections thereafter at intervals not to exceed 100 hours TIS and correct as necessary before further flight after the inspection in which a correction is necessary.

(3)Accomplish these actions according to the instructions given in EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-122, Amendment 1, dated March 2006, or EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-122, Amendment 2, dated January 2007, and the applicable maintenance manual.

(4)If both flap inboard carriages have been replaced following EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-138, dated March 2006, no further action is required. Make an entry in the logbook to show compliance with this AD. 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, Small Airplane Directorate, *ATTN:* Albert J. Mercado, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; *telephone:*

(816)329-4119; f *ax:*

(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.

(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

(h)Refer to MCAI Direction générale de l'aviation civile AD No. F-2005-017, Issue date: January 19, 2005, for related information. Material Incorporated by Reference

(i)You must use EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-122, Amendment 1, dated March 2006, or EADS SOCATA TBM Aircraft Mandatory Service Bulletin SB 70-122, Amendment 2, dated January 2007, 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 EADS SOCATA, Direction des Services, 65921 Tarbes Cedex 9, France; *telephone:* 33 (0)5 62 41 73 00; *fax:* 33 (0)5 62 41 76 54; or SOCATA AIRCRAFT, INC., North Perry Airport, 7501 South Airport Rd., Pembroke Pines, FL 33023; *telephone:*

(954)893-1400; *fax:*

(954)964-4141.

(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 March 6, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4383 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27360; Directorate Identifier 2007-NM-026-AD; Amendment 39-14986; AD 2007-06-05] RIN 2120-AA64 Airworthiness Directives; Airbus Model A318, A319, A320 and A321 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: We are adopting a new airworthiness directive

(AD)for the products listed above. This AD results from mandatory continuing airworthiness information

(MCAI)originated 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: * * * updates [to the airplane maintenance manual (AMM), engine service manual (ESM), and quick engine change kit instruction manual (QECKIM)] have inadvertently introduced torque value errors for the bolts that attach the forward engine mount to the engine. * * * Application of the incorrect torque to the forward engine mount bolts during maintenance could result in failure of the forward engine mount and possible separation of the engine from the airplane and damage to the wing or loss of control of the airplane. This AD requires actions that are intended to address the unsafe condition described in the MCAI. DATES: This AD becomes effective March 30, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications, listed in the AD, as of March 30, 2007. We must receive comments on this AD by April 16, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*

(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *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. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. 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 this AD, 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. FOR FURTHER INFORMATION CONTACT: Tim Dulin, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2141; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This 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 The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0036R1, dated February 27, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: From May 2006, the forward engine mount removal and installation procedures (AMM, ESM, QECKIM) have been updated to add removal and installation of the support assemblies. These updates have inadvertently introduced torque value errors for the bolts that attach the forward engine mount to the engine. This condition, if not corrected, may have the following consequences: —rupture of bolts and failure of the support assembly due to overtorqued bolts; —reduced safe life of the secondary thrust load path due to low torque on monoball housing bolts. Application of the incorrect torque to the forward engine mount bolts during maintenance could result in failure of the forward engine mount and possible separation of the engine from the airplane and damage to the wing or loss of control of the airplane. The MCAI requires inspection, replacement, and re-torque of the affected bolts and adjustment of the torque values. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued All Operators Telex A320-71A1042, Revision 01, dated February 12, 2007. Goodrich has issued All Operators Letter CFM56-074, Revision 1, dated February 1, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between the 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 highlighted in a NOTE within the AD. FAA's Determination of the Effective Date An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because application of the incorrect torque to the engine mount primary and secondary load path bolts during maintenance could result in failure of the forward engine mount and possible separation of the engine from the airplane and damage to the wing or loss of control of the airplane. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27360; Directorate Identifier 2007-NM-026-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments. 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 we receive about this AD. 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 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 regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. 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: **2007-06-05 Airbus:** Amendment 39-14986. Docket No. FAA-2007-27360; Directorate Identifier 2007-NM-026-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective March 30, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to Airbus Model A318-111 and -112; A319-111, -112, -113, -114, and -115; A320-111, -211, -212, and -214; and A321-111, -112, -211, -212, and -213 airplanes; certificated in any category; all serial numbers, which have CFM International CFM56-5A or CFM56-5B series engines installed. Subject

(d)Powerplant. Reason

(e)The mandatory continued airworthiness information

(MCAI)states: From May 2006, the forward engine mount removal and installation procedures (airplane maintenance manual (AMM), engine service manual (ESM), quick engine change kit instruction manual (QECKIM)) have been updated to add removal and installation of the support assemblies. These updates have inadvertently introduced torque value errors for the bolts that attach the forward engine mount to the engine. This condition, if not corrected, may have the following consequences: —rupture of bolts and failure of the support assembly due to overtorqued bolts; —reduced safe life of the secondary thrust load path due to low torque on monoball housing bolts. Application of the incorrect torque to the forward engine mount bolts during maintenance could result in failure of the forward engine mount and possible separation of the engine from the airplane and damage to the wing or loss of control of the airplane. The MCAI requires inspection, replacement, and re-torque of the affected bolts and adjustment of the torque values. Actions and Compliance

(f)Unless already done, do the following actions.

(1)As of the effective date of this AD:

(i)Any maintenance on the engine mounts must be performed in accordance with correct instructions as identified in the Airbus All Operators Telex

(AOT)A320-71A1042, Revision 01, dated February 12, 2007; or Goodrich All Operators Letter

(AOL)CFM56-074, Revision 1, dated February 1, 2007; and

(ii)Any forward engine mount support assemblies fitted on an engine which is used as replacement must be fitted in accordance with correct instructions as identified in Airbus AOT A320-71A1042, Revision 01, dated February 12, 2007; or Goodrich AOL CFM56-074, Revision 1, dated February 1, 2007.

(2)For aircraft on which any forward engine mount support assembly has been installed or maintained since May 2006 using erroneous torque values given in the maintenance data identified in paragraph 1. of the Airbus AOT A320-71A1042, Revision 01, dated February 12, 2007, or where the use of correct torque values cannot be established: Within 20 days after the effective date of this AD, accomplish the actions in paragraphs (f)(2)(i), (f)(2)(ii), (f)(2)(iii), and (f)(2)(iv) of this AD, as applicable, in accordance with the instructions of Airbus AOT A320-71A1042, Revision 01, dated February 12, 2007. Aircraft on which no engine removal has been performed since aircraft delivery are not affected by this paragraph. The alternative procedure given in paragraph 4.2.3 of the AOT is acceptable, provided that the nominal torque values specified in paragraphs 4.2.1 and 4.2.2 are restored within 120 flight cycles after accomplishing paragraph 4.2.3 of the AOT.

(i)Remove and inspect the following forward engine mount bolts: 77710-5H6 (AMM item 90) and NAS2815C15H (AMM item 85).

(ii)If any bolts, 77710-5H6 (AMM item 90), are found broken during the above inspection, before further flight, replace the affected forward engine mount support assembly (AMM item 75).

(iii)Replace bolts, 77710-5H6 (AMM item 90) and NAS2815C15H (AMM item 85), with new items and torque them to the correct value.

(iv)Re-torque 77458-7H21 bolts (AMM item 95) and NAS2816C7H (AMM item 50) to the correct value.

(3)Actions done before the effective date of this AD in accordance with Airbus AOT A320-71A1042, dated February 5, 2007, are acceptable for compliance with the corresponding provisions of paragraph (f)(2) of this AD.

(4)Within 7 days after the inspection, report all findings to Airbus Customer Services, Engineering and Technical Support, Attention: Mr. J-P Pourtau SEE11; telephone +33

(0)5 62 11 04 48; fax +33

(0)5 61 93 36 14. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows: No differences. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tim Dulin, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-2141; fax

(425)227-1149. 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.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI European Aviation Safety Agency

(EASA)Airworthiness Directive 2007-0036R1, dated February 27, 2007; Airbus All Operators Telex A320-71A1042, Revision 01, dated February 12, 2007; and Goodrich All Operators Letter CFM56-074, Revision 1, dated February 1, 2007, for related information. Material Incorporated by Reference

(i)You must use Airbus All Operators Telex A320-71A1042, Revision 01, dated February 12, 2007; or Goodrich All Operators Letter CFM56-074, Revision 1, dated February 1, 2007; as applicable; 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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.

(202)741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Renton, Washington, on March 7, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4535 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-26396; Airspace Docket No. 06-AAL-40] Revision of Class E Airspace; Red Dog, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action revises Class E airspace at Red Dog, AK. Two new Area Navigation

(RNAV)Required Navigation Performance

(RNP)Special Instrument Approach Procedures (SIAPs) and an RNAV RNP Special Departure Procedure

(DP)are being developed for the Red Dog Airport. This rule results in the revision of Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface near the Red Dog Airport, Red Dog, AK. DATES: *Effective Dates:* 0901 UTC, May 10, 2007, the Director of the **Federal Register** approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number

(907)271-5898; fax:

(907)271-2850; e-mail: *gary.ctr.rolf@faa.gov* . Internet address: *http://www.alaska.faa.gov/at* . SUPPLEMENTARY INFORMATION: History On Monday, December 18, 2006, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Red Dog, AK (71 FR 75686). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs, and one new DP for the Red Dog Airport. The new Special approaches are

(1)The RNAV RNP Runway

(RWY)05, and

(2)the RNAV RNP RWY 20. The Special DP is the IHOPO ONE RNAV RNP Departure. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Red Dog Airport area is revised by this action. Interested parties were invited to participate in this proposed rulemaking by submitting written comments on the proposal to the FAA. No comments have been received, thus the rule is adopted as proposed. The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9P, *Airspace Designations and Reporting Points,* dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order. The Rule This amendment to 14 CFR part 71 revises Class E airspace at the Red Dog Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing two new Special SIAPs, and one new Special DP, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule

(IFR)operations at the Red Dog airport, Red Dog, Alaska. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Red Dog Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amemded] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9P, *Airspace Designations and Reporting Points,* dated September 1, 2006, and effective September 15, 2006, is amended as follows: Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the Earth. AAL AK E5 Red Dog, AK [Revised] Red Dog, AK (Lat. 68°01′56″ N., long. 162°53′67″ W.) Noatak NDB/DME, AK (Lat. 67°34′19″ N., long. 162°58′26″ W.) Selawik, VOR/DME, AK (Lat. 66°35′58″ N., long. 159°59′27″ W.) That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Red Dog Airport, AK; and that airspace extending upward from 1,200 ft. above the surface within a 14-mile radius of the Red Dog Airport, AK, and within 5 miles either side of a line from the Selawik VOR/DME, AK, to lat. 67°38′06″ N., long. 162°21′42″ W., to lat. 67°54′30″ N., long. 163°00′00″ W., and within 5 miles either side of a line from the Noatak NDB/DME, AK, to lat. 67°50′20″ N., long. 163°19′16″ W., and within a 5-mile radius of lat. 67°50′20″ N., long. 163°19′16″ W. Issued in Anchorage, AK, on March 6, 2007. Michael A. Tarr, Acting Manager, Alaska Flight Services Information Area Group. [FR Doc. 07-1215 Filed 3-14-07; 8:45am]

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