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Code · REGISTER · 2007-05-24 · Federal Energy Regulatory Commission, DOE · Rules and Regulations

Rules and Regulations. Final rule

79,668 words·~362 min read·/register/2007/05/24/07-2596

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BILLING CODE 4910-13-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 292 [Docket No. RM07-11-000] Applicability of Federal Power Act Section 215 to Qualifying Small Power Production and Cogeneration Facilities Issued May 18, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule. SUMMARY: The Federal Energy Regulatory Commission (Commission) is revising its regulations governing qualifying small power production and cogeneration facilities (QFs), to eliminate the exemption of QFs from the requirements of section 215 of the Federal Power Act.
From a reliability perspective, there is not a meaningful distinction between QF and non-QF generators that warrants a generic exemption of QFs from reliability standards. DATES: Effective Date: The rule will become effective June 25, 2007. FOR FURTHER INFORMATION CONTACT: Paul Singh (Technical Information), Office of Markets, Tariffs and Rates, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426;
(202)502-8576; *paul.singh@ferc.gov* . Samuel Higginbottom (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE.,Washington, DC 20426;
(202)502-8561; *samuel.higginbottom@ferc.gov* . SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Order No. 696 I. Introduction 1. The Federal Energy Regulatory Commission (Commission) revises its regulations governing qualifying small power production and cogeneration facilities, to eliminate the exemption of QFs from the requirements of section 215 of the Federal Power Act. 1 From a reliability perspective, there is not a meaningful distinction between QF and non-QF generators that warrants a generic exemption of QFs from reliability standards. 1 16 U.S.C. 824o. 2. A number of commenters in this proceeding also submitted comments in the rulemaking in Docket No. RM06-16-000 concerning mandatory reliability standards for the bulk-power system; they submitted comments in both proceedings concerning the appropriate compliance registry criteria for QFs to be subject to reliability standards. 2 In this proceeding we find that QFs should not, as a general matter, be exempt from reliability standards; we are changing our regulations accordingly. Issues concerning the treatment of individual QFs are best addressed in the North American Electric Reliability Corporation
(NERC)registry process where the unique circumstances of individual QFs can be individually considered. 2 The Commission has since issued Order No. 693, discussed below, adopting mandatory reliability standards. II. Background 3. On August 8, 2005, the Electricity Modernization Act of 2005, which is Title XII, Subtitle A, of the Energy Policy Act of 2005 (EPAct 2005), was enacted into law. 3 EPAct 2005 added a new section 215 to the Federal Power Act (FPA), 4 which requires a Commission-certified Electric Reliability Organization
(ERO)to develop reliability standards, which are subject to Commission review and approval. Once approved, the reliability standards become mandatory and may be enforced by the ERO, subject to Commission oversight. 3 Energy Policy Act of 2005, Pub. L. No. 109-58, Title XII, Subtitle A, 119 Stat. 594, 941 (2005). 4 16 U.S.C. 824o. 4. On February 3, 2006, the Commission issued Order No. 672, which implements newly-added section 215 and provides specific processes for the certification of an entity as the ERO, the development and approval of mandatory reliability standards, and the compliance with and enforcement of approved reliability standards. 5 On April 4, 2006, NERC made two filings:
(1)An application for certification of NERC as the ERO; and
(2)a petition for Commission approval of mandatory reliability standards, with eight regional differences and a glossary of terms. On July 20, 2006, the Commission issued an order certifying NERC as the ERO. 6 On October 20, 2006, the Commission issued a Notice of Proposed Rulemaking proposing to approve 83 of 107 proposed reliability standards. 7 5 *Rules Concerning Certification of the Electric Reliability Organization; Procedures for the Establishment, Approval and Enforcement of Electric Reliability Standards* , Order No. 672, 71 FR 8662 (Feb. 17, 2006), FERC Stats. & Regs. ¶ 31,204 (2006), *order on reh'g* , Order No. 672-A, 71 FR 19814 (Apr. 18, 2006), FERC Stats. & Regs. ¶ 31,212 (2006). 6 *North American Electric Reliability Corporation* , 116 FERC ¶ 61,062 (2006). 7 *Mandatory Reliability Standards for the Bulk-Power Market* , 72 FR 64770 (Oct. 20, 2006), FERC Stats. & Regs. ¶ 32,608
(2006)(Reliability NOPR). The Commission subsequently approved 83 of 107 proposed reliability standards, six of the eight proposed regional differences, and the glossary of terms. The Commission found that those reliability standards met the requirements of section 215 of the FPA (and Part 39 of the Commission's regulations, 18 CFR part 39), but that many of those reliability standards require significant improvement to address, among other things, the recommendations of the Blackout Report and therefore required NERC to submit improvements to 56 of those 83 Reliability Standards. *Mandatory Reliability Standards for the Bulk Power System* , Order No. 693, 72 FR 16416 (April 4, 2007), FERC Stats. & Regs. ¶ 31,242 (2006). (Reliability Final Rule). 5. In response to the Reliability NOPR, Cogeneration Association of California and the Energy Producers and Users Coalition (CAC/EPUC) filed comments pointing out that QFs are exempt from section 215 by virtue of § 292.601(c) of the Commission's regulations. 8 CAC/EPUC suggested that the Commission intentionally exempted QFs from section 215. CAC/EPUC explained that, in Order No. 671, issued on February 2, 2006, 9 the Commission stated that it saw no reason to exempt QFs from the newly added FPA sections 220, 221 and 222, 10 and explicitly excluded those sections of the FPA from the QF exemptions contained in § 292.601 of its regulations, while making no similar mention of section 215. 8 18 CFR 292.601(c). 9 *Revised Regulations Governing Small Power Production and Cogeneration Facilities* , Order No. 671, 71 FR 7852 (Feb. 2, 2006), FERC Stats. & Regs. ¶ 31,203 (2006), *order on rehearing* , Order No. 671-A, 71 FR 30583 (May 22, 2006), FERC Stats. & Regs. ¶ 31.219 (2006). 10 16 U.S.C. 824t-v. 6. In response to those comments, the Commission issued a notice of proposed rulemaking
(NOPR)seeking comments on whether QFs should be exempt from section 215 of the FPA. 11 In the NOPR, the Commission pointed out that section 215(b) grants the Commission jurisdiction over “all users, owners, and operators of the bulk-power system” for “purposes of approving reliability standards * * * and enforcing compliance with [section 215]”, and further provides that “[a]ll users, owners and operators of the bulk-power system shall comply with reliability standards that take effect under this section.” 12 The Commission reasoned that, given the statutory directive that all users, owners and operators of the bulk-power system must comply with mandatory reliability standards under section 215, it may not be appropriate to allow QFs a continued exemption from compliance with the newly-adopted mandatory and enforceable reliability standards that apply to generator owners and operators. The Commission also stated that, from a reliability perspective, there would seem to be no meaningful distinction between QF and non-QF generators that would warrant exemption of QFs from mandatory reliability standards. The Commission continued that QF generators would seem to affect the reliability of the bulk-power system as much as non-QF generators, and so QF generators should be subject to the newly-adopted mandatory reliability standards. The Commission noted that while many QFs are small facilities, others are quite large. The Commission suggested that it saw no justification for large QFs to be exempt from mandatory reliability standards. The Commission therefore proposed to amend § 292.601(c)(3) to add section 215 to the list of FPA sections from which QFs are not exempt. The Commission also pointed out that the NERC registry criteria for inclusion of generators in the compliance registry of entities that would be subject to mandatory reliability standards are written to exclude most smaller entities, and that there are procedures to challenge a generator's inclusion in the compliance registry before NERC, and if not satisfied with NERC's decision, procedures to lodge an appeal with the Commission. 11 *Applicability of Federal Power Act Section 215 to Qualifying Small Power Production and Cogeneration Facilities* , 72 FR 14254 (March 16, 2007), FERC Stats. & Regs. ¶ 32,613 (2007). 12 16 U.S.C. 824o(b). Section 215(b) also states that entities described in section 201(f), 16 U.S.C. 824(f), entities that are otherwise exempt from Part II of the FPA unless a provision is otherwise specifically applicable to those entities, are subject to section 215. 16 U.S.C. 824o(b). III. Comments 7. On March 16, 2007, the NOPR was published in the **Federal Register** with comments due on or before April 16, 2007. 8. Comments supporting the proposed rule were filed by: NERC, the National Association of Regulatory Utility Commissioners (NARUC), the Edison Electric Institute (EEI), Entergy Services, Inc. (Entergy Services), Xcel Energy Services Inc, on behalf of the Xcel Energy Operating Companies (collectively, Xcel Energy), 13 American Transmission Company LLC, FirstEnergy Companies (FirstEnergy), Southern California Edison Company (SoCal Edison), Allegheny Power and Allegheny Energy Supply Company (collectively, Allegheny Energy Companies), and Imperial Irrigation District (IID). 13 The four Xcel Energy Operating Companies are: Northern States Power Company, a Minnesota corporation, Northern States Power Company, a Wisconisn corporation, Southwestern Public Service Company, and Public Service Company of Colorado. 9. Those who support the proposed rule generally argue that including section 215 of the FPA among the FPA provisions that QFs are not exempted from is appropriate both from a statutory perspective and in terms of the impact on reliability of the bulk-power system. NERC states that, with the exemption removed, in determining whether QFs are subject to mandatory reliability standards NERC will treat QFs as it does all other owners, operators and users of the bulk-power system, i.e., the decision as to whether to place an entity on the NERC compliance registry will be based on the specific circumstances of each QF. NARUC points out that there is no meaningful distinction from a reliability perspective between QF and non-QF generators that could warrant continuing to exempt QFs. EEI states that section 215 is clear on its face that all users, owners and operators of the electric production and delivery network should be subject to section 215. EEI believes that many QFs recognize their section 215 responsibilities; EEI states that it understands that many QFs have already registered with Regional Entities, which EEI states suggests that QFs understand the need to register notwithstanding the current exemption provided under section 292.601(c) of the Commission's regulations. 10. Entergy states that it fully supports the Commission's determination that QFs should not be exempt from mandatory reliability standards but states that it is concerned that NERC's registration criteria, which apply to an individual generating units that are larger than 20 MVA and that are directly connected to the bulk-power system might exempt generation facilities that are arguably not directly connected to the bulk-power system but are nevertheless material to the reliability of the bulk-power system. Similarly, Xcel Energy agrees with the Commission's reasoning that from a reliability perspective there is no meaningful distinction between QFs and other generating facilities that warrants continuation of a QF exemption from section 215. Xcel Energy is concerned, however, that NERC's registration criteria, particularly the reference to being “directly connected to the bulk-power system” can be read to not apply to generating facilities that are interconnected at distribution voltage level. American Transmission Company supports the proposed rule and states that “the appropriate place to consider whether a generating facility should be exempted from compliance with the mandatory reliability standards is at NERC.” IID supports the proposed rule but argues that the Commission should recognize that the ERO or the Regional Entity should be permitted to include an otherwise exempt facility on a facility-by-facility basis if it determines that the facility is needed for bulk-power system reliability. IID asks the Commission to determine that all QFs in its particular footprint are collectively material to reliability in its particular control area. 11. Comments opposing the proposed rule were filed by: CAC/EPUC, the Florida Renewable Energy Producing QFs (Florida Renewable QFs), Deere & Company (Deere), Indeck Energy Services, Inc. (Indeck), Sunray Energy Inc. (Sunray), ARIPPA, 14 Hillsborough County, Florida, 15 and Pasco County, Florida. 16 14 ARIPPA is a regional non-profit trade association consisting of thirteen QFs and associated manufacturers, engineers, chemists and tradesmen who repair and service the units. The units are in historical coal mining regions, combust waste coal and generate under fixed price power agreements with the local utility. 15 Hillsborough County owns a 30 MW solid waste QF and has plans to add an additional 17 MW of electrical generation capacity. 16 Pasco County owns a 30 MW solid waste QF. 12. CAC/EPUC suggests that the Commission has an ongoing obligation to encourage cogeneration and that this must be balanced with its obligation to protect the grid. CAC/EPUC urges the Commission not to act on the proposed rule until it has acted on rehearing of Order No. 693 in order to make sure that the registry standards applicable to QFs are not overly broad. Florida Renewable QFs ask the Commission to modify the proposed rule in four respects: First, to allow QFs to qualify for a size exemption based on their output capability rather than on their nameplate capacity; second, the Commission should clarify that QFs may appeal registry designations directly to the Regional Entity in lieu of the ERO; third, the Commission should provide that QFs that by contract sell only energy and not capacity be allowed to seek a case-by-case waiver of the reliability standards even if they do not otherwise qualify for a size exemption; and fourth, the Commission should require the ERO to consider whether full compliance with mandatory reliability standards would raise QFs' costs above the avoided costs set in the QFs' contracts with purchasing utilities. Deere suggests that the Commission provide an exemption for small power production QFs 80 MW and smaller. 13. Indeck argues that the proposed rule is fundamentally flawed. Indeck states that the proposed rule fails to recognize that QFs are often not connected to the grid, operate to support important commercial or industrial operations, are subject to fuel use limitations and operating and efficiency requirements, and in most cases have little or no impact on the reliability of the bulk-power system. To remedy these supposed flaws, Indeck suggests that the Commission should continue to exempt all QFs smaller than 100 MW from section 215 of the FPA, should ignore “behind the meter” capacity of QFs, and should exempt all QFs that utilize a renewable energy source from section 215 of the FPA. Sunray states that it owns and operates two Solar Electric Generating Systems
(SEGS)located in California. One of Sunray's SEGs is 14 MW and the other 30 MW. Sunray argues that requiring it to comply with mandatory reliability standards will be economically burdensome and will provide little or no increase in the reliability of the bulk-power system. Both Indeck and Sunray also question the Commission's regulatory flexibility analysis. 14. ARIPPA argues that all of its members have been required by contract with purchasing utilities to meet reliability requirements to obtain access to the grid. ARIPPA argues that additional requirements are not necessary for its QFs. Hillsborough County and Pasco County each state that the investor-owned utilities that their respective QFs are interconnected with have control over system reliability and that the QFs have no responsibility for bulk-power system reliability. Hillsborough County and Pasco County also suggest that the Commission provide that all qualifying small power production facilities continue to be exempt from section 215 of the FPA. 15. The Commission received comments from the following entities that do not oppose the proposed rule, but ask the Commission to clarify how NERC's registration criteria will apply to QFs: The Electricity Consumers Resource Council (ELCON) and the American Iron and Steel Institute (AISI), the Council of Industrial Boiler Owners (CIBO), Kimberly Clark Corporation, PPG Industries, Inc. and Valero Energy Corporation (collectively, Joint Cogeneration Owners), American Forest & Paper Association (American Forest & Paper), Lee County, Florida, Dow Chemical Company (Dow), California Cogeneration Council (CCC), and Midland Cogeneration Venture Limited Partnership (Midland Cogen). 17 17 Edison Mission Energy and Pacific Gas and Electric Company each also filed comments stating that they will be affected by the proposed rule and expressing an interest in the rulemaking; neither, however, takes a position on the substance of the proposed rule. 16. ELCON and AISI state that they do not oppose the registration of QFs if particular facilities are found to materially affect the reliability of the bulk-power system. ELCON and AISI state that in fact they have cooperated with NERC staff to draft registration criteria that would address the unique operational characteristics of cogenerators. ELCON and AISI state that, unfortunately, the NOPR proposes an automatic per se rule that would force the registration of all QFs above 20 MVA/MW regardless of whether a QF's operations have any effect on reliability. ELCON and AISI also ask the Commission to recognize that NERC has applied a “netting” concept that recognizes that often QF generation never reaches the grid, or does so on a limited basis. Finally ELCON and AISI recommend that the Commission encourage the establishment of an ad hoc NERC task force that would review the criteria for determining if and when a QF has a material impact on the reliability of the bulk power system. 17. CIBO states that it supports the comments filed by ELCON. Additionally, CIBO argues that the Commission does not encourage QFs when it fails to recognize any meaningful distinction between QF and non-QF generators on matters of reliability. CIBO states that NERC's registration criteria for generators do, and should continue to, recognize that QFs are different from other generators. CIBO asks the Commission to encourage NERC in this recognition. Joint Cogeneration Owners also state that they do not oppose the registration of QFs whose operators do in fact materially affect the reliability of the bulk power system. Joint Cogeneration Owners, however, oppose what they characterize as a per se rule that would require the registration of all QFs above 20 MVA regardless of whether the QFs' operations have any effect on reliability and would fail to consider a QF's net impact on the grid. 18. American Forest & Paper states that it does not object to making those portions of reliability standards under section 215 which are appropriately applicable to QFs mandatory, but requests that the Commission clarify that the application of any reliability standards to QFs must nonetheless recognize and appropriately accommodate the distinctions betweens QFs and merchant or utility-owned generation. American Forest & Paper notes that almost all QFs greater that 20 MW interconnected to and operating synchronously with the grid are already subject to specific reliability and operating requirements. American Forest & Paper states that those requirements range from limitations on power factor and the maintenance of facilities, to emergency operating procedures. American Forest & Paper states that it does not object to the conversion of such requirements into mandatory standards. American Forest & Paper, however, states that it is concerned that the rush to codify reliability standards will be used as a pretext for renewed discrimination and utility interference with integrated manufacturing operations. American Forest & Paper concludes by asking the Commission to clarify that mandatory reliability standards applicable to QFs must reflect the operational and other distinctions between QFs and merchant or utility-owned generation. 19. Lee County argues that the Commission should require NERC to design a cost-benefit analysis to be applied by NERC and Regional Entities when registering smaller qualifying small power production facilities. Lee County is concerned that small power production facilities smaller than 20 MVA will be required to register on the grounds that they “materially” impact the reliability of the bulk-power system. Lee County suggests that the Commission require NERC to establish a rebuttable presumption that a small power production facility smaller than the existing NERC size thresholds does not “materially” impact the reliability of the bulk-power system. Lee County also asks the Commission to require NERC to justify registering such small power production facilities using a meaningful case-by-case analysis based on a cost benefit analysis. 20. Dow Chemical does not oppose making section 215 of the FPA applicable to QFs, but wants the Commission to clarify that NERC must retain its existing provision that measures whether a facility meets the 20/75 MVA size threshold based on the portion of a cogeneration unit's /plant's capacity made available to serve the bulk-power system. Dow would also like the Commission to state that directives from Reliability Coordinators, Transmission Operators, Balancing Authorities, and/or Transmission Providers need not be complied with if doing so would impair a cogeneration facility's service obligations to its thermal host. CCC asks that the Commission require that NERC reliability criteria be applicable to QFs based upon a demonstration that the facilities are needed for reliability as defined in Order No. 693, and not based on the size of the facility. CCC also asks that the Commission clarify that NERC reliability rules must take into account regulatory requirements, operating characteristics and contractual commitments of cogeneration facilities. Midland Cogen asks the Commission to clarify that NERC reliability criteria must accommodate the unique operating characteristics, regulatory requirements and contractual commitments of QFs. Midland Cogen also asks the Commission to provide assurances that QFs will be permitted to recover the cost of compliance with mandatory reliability standards through a grid charge to be assessed to the control area that benefits from the reliability that the facilities provide. 21. Georgia Pacific, LLC (Georgia Pacific) filed reply comments. Georgia Pacific states that it has mill and plant facilities throughout the United States and owns and operates eleven facilities that are certified as QFs, and that range in size from 7.5 MW to 140 MW. Georgia Pacific states that the majority of its QFs are cogeneration facilities that provide electric power and steam to host processes. Georgia Pacific states that because its QFs primarily produce steam and electric energy for its own use, its QFs have little or no impact on the bulk-power system. Georgia Pacific asks that the Commission in this proceeding recognize the existing 20/75 MVA NERC exclusion for smaller facilities and that such exclusion for a cogeneration facility serving behind the meter load be based on that portion of the generating unit's/plant's capacity actually made available to the bulk power system. In addition, Georgia Power would like the Commission to create an exemption from any reliability standards to the extent that complying with such standards would impair service to a QF's industrial host. 22. Xcel Energy filed reply comments arguing that this rulemaking is not the appropriate forum for evaluating technical justification for any specific QF exemption level. Xcel Energy argues that generators seeking an exemption should do so on a case-by-case basis. 23. On May 14, 2007, Florida Renewable QFs filed supplemental comments. Florida Renewable QFs states that it seeks clarification of two issues left unresolved in the NOPR. First, Florida Renewable QFs ask the Commission to state that the Final Rule will not take effect for one year from issuance. The one-year period, Florida Renewable QFs argues, will give QFs that do not have experience with reliability standards time to develop programs for compliance with the reliability standards and will prevent undue hardship. Second, Florida Renewable asks the Commission to state that an appeal to the Commission from a NERC determination that a small generator (smaller than the usual registry criteria of 20 MVA) should be on the compliance registry would stay the effectiveness of the NERC ruling during the pendency of the appeal to the Commission. IV. Discussion 24. As proposed in the NOPR, the Commission will amend § 292.601(c)(3) of its regulations to add section 215 to the list of FPA sections from which QFs are not exempt. Making QFs subject to reliability standards is consistent with the intent of section 215. When Congress enacted section 215, it used broad language to ensure that all those entities that could affect the reliability of the bulk power system would be subject to mandatory reliability standards. Specifically, section 215(b)(1) states that, “The Commission shall have jurisdiction, within the United States, over * * * all users, owners and operators of the bulk-power system (including the entities described in section 201(f)), for purposes of approving reliability standards established under this section and enforcing compliance with this section.” 18 Further, section 215(b)(2) provides that “All users, owners and operators of the bulk-power system shall comply with reliability standards that take effect under this section.” 19 In using such broad language, Congress gave no indication that it intended to exempt any entity that could affect the reliability of the bulk-power system from the reach of mandatory reliability standards. 18 16 U.S.C. 824o(b) (emphasis added). 19 *Id.* (emphasis added). 25. Indeed, Congress included within the scope of section 215 “the United States, a State or political subdivision of a State, an electric cooperative that receives financing under the Rural Electrification Act of 1936 (7 U.S.C. 901 et seq.) or that sells less than 4,000,000 megawatt hours of electricity per year.” 20 Thus Congress included within the scope of section 215 entities that are normally excluded from the Commission's jurisdiction under Part II of the FPA. The provision providing that these otherwise jurisdictionally exempt utilities will be subject to section 215 supports our determination that Congress intended that all utilities, regardless of whether those utilities are otherwise exempt from the FPA, be subject to section to section 215. 20 16 U.S.C. 824(f). 26. While it is true that section 210(e) of PURPA grants the Commission broad authority to exempt most QFs from various provisions of the FPA, we cannot find that Congress intended that all entities that affect the reliability of the bulk-power system not be subject to mandatory and enforceable reliability standards. Comments submitted in response to the NOPR do not convince us otherwise. Indeed, the majority of the comments filed either fully support the Commission's proposal to make QFs subject to section 215, or recognize that QFs should be subject to section 215 while expressing concerns as to the specifics of NERC's registry criteria for QFs. 27. We accordingly conclude that the addition of section 215 of the FPA to the list, contained in § 292.601(c)(3), of FPA sections from which QFs are not exempt is consistent with the Congressional directive contained in section 215 of the FPA that all users, owners, and operators of the bulk-power system be subject section 215 and thus subject to the mandatory and enforceable reliability standards. 28. In addition, we find that for reliability purposes there is no meaningful distinction between QF and non-QF generators that would warrant generic exemption of QFs from mandatory reliability standards. 29. Comments submitted in this rulemaking argue that the Commission should consider in this rulemaking a number of factors in determining whether individual QFs or classes of QFs do not materially affect the reliability of the bulk-power system and thus should be exempted from section 215 of the FPA; these factors include the small size of some QFs and the fact that, while a QF may individually be large, it may deliver most of its output behind the meter load and thus would have little effect on the bulk-power system. We do not believe that any of the factors mentioned by commenters, including small size or primarily serving behind the meter load, justifies a generic exemption from section 215 of the FPA for all facilities below a certain size, or for all facilities serving behind the meter load. While these factors may be appropriate in determining whether an individual QF should be placed on the NERC reliability registry, they are not factors that justify exempting QFs, as a class, from section 215 of the FPA and from reliability standards. Nor are they factors that justify exempting any particular subset of QFs. 30. Whether a generation facility should be subject to reliability standards should depend on whether a generation facility is needed to maintain the reliability of the bulk-power system. The reliability criteria adopted by NERC and approved by the Commission, as well as the compliance registry process adopted by NERC and approved by the Commission, are designed to ensure that only those facilities needed to maintain the reliability of the bulk-power system are subject to the reliability standards. The ultimate decision with respect to individual generation units and/or plants is, and must be, made on a case-by-case basis. Thus, whether a particular QF or type of QF should be exempt from reliability standards is an issue that is more appropriately made in the context of NERC's establishment of registry criteria for owners and operators of generators, and in the context of NERC's compliance registry process. The reliability of the bulk-power system will be better protected by utilizing the NERC compliance registry process, which will ensure that no generator that is needed to maintain the reliability of the bulk-power system will be exempt from reliability standards, while excusing those generators that are not needed to maintain reliability. 31. NERC's compliance registry criteria for generator owner/operators encompasses: a. Individual generating unit > 20 MVA (gross nameplate rating) and is directly connected to the bulk power system, or b. Generating plant/facility > 75 MVA (gross aggregate nameplate rating) or when the entity has responsibility for any facility consisting of one or more units that are connected to the bulk power system at a common bus with total generation above 75 MVA (gross nameplate rating), or c. Any generator, regardless of size, that is a blackstart unit material to and designated as part of a transmission operator entity's restoration plan, or; d. Any generator, regardless of size, that is material to the reliability of the bulk power system.[ 21 ] 21 NERC Statement of Compliance Registry Criteria (Revision 3), February 6, 2007. 32. In addition, NERC's compliance registry criteria for generation facilities contain the following exclusions: a. A generator owner/operator will not be registered based on these criteria if responsibilities for compliance with approved NERC reliability standards or associated requirements including reporting have been transferred by written agreement to another entity that has registered for the appropriate function for the transferred responsibilities, such as a load-serving entity, G&T cooperative or joint action agency, or b. As a general matter, a customer-owned or -operated generator/generation that serves all or part of retail load with electric energy on the customer's side of the retail meter may be excluded as a candidate for registration based on these criteria if
(i)the net capacity provided to the bulk power system does not exceed the criteria above or the Regional Entity otherwise determines the generator is not material to the bulk power system and
(ii)standby, back-up and maintenance power services are provided to the generator or to the retail load pursuant to a binding obligation with another generator owner/operator or under terms approved by the local regulatory authority or the Federal Energy Regulatory Commission, as applicable.[ 22 ] 22 *Id.* 33. Finally, the registration criteria contains a provision that an organization that otherwise meets the criteria for registration need not be registered if it can be demonstrated to NERC that the bulk power system, owner, operator, or user does not have a material impact on the bulk power system. 34. In the Reliability Final Rule, moreover, the Commission found that NERC had set reasonable criteria for registration, and approved the compliance registry process. 23 23 Reliability Final Rule, FERC Stats. & Regs. ¶ 31,242, at P 92-101. 35. Many of the comments filed in this proceeding appear to be based on a misunderstanding of what the Commission was proposing to do in this proceeding. Many of the comments submitted in response to the NOPR suggest that commenters thought that the Commission was proposing to mandate that NERC adopt registry criteria that would require all QFs over a certain size to register with the ERO or Regional Entity. All the Commission proposed to do in the NOPR, and all the Commission is doing here in the Final Rule, is to eliminate the generic exemption of QFs from section 215 of the FPA and thus from mandatory reliability standards, thus treating them like other, non-QF generators for reliability purposes. The Commission was not proposing to, and does not, require that all QFs be subject to reliability standards no matter their circumstances. Rather QFs and non-QFs alike would have an equal opportunity to not be subject to reliability standards. But that would be a case-by-case determination based on the circumstances of each case. 36. In this regard, in the Reliability Final Rule the Commission found that NERC had set reasonable criteria for registration and approved the compliance registry process; 24 the compliance registry process provides procedures for individual generators to contest determinations by Regional Entities and the ERO. Additionally, an entity that disagrees with NERC's determination to place it in the compliance registry may submit a challenge in writing to NERC and, if still not satisfied, may lodge an appeal with the Commission. 25 Thus, an individual QF may appeal to the Commission if it believes it should not be required to comply with reliability standards. Florida Renewable QFs asks the Commission to rule that the filing of such an appeal by a QF smaller than 20 MVA will stay the effect of the NERC determination to place an entity on the compliance registry during the pendency of the appeal to the Commission. Whether a stay should be granted depends on a number of factors that are fact specific; such a decision is more appropriately made on a case-by-case basis. It is thus premature to decide now whether an appeal to the Commission should stay a NERC decision that a particular QF be placed on the compliance registry. We will deny Florida Renewable QF's request that we state that the filing of an appeal by a small generator will stay the effect of the NERC determination; however, this is without prejudice to any entity seeking a stay at the time it files an appeal of a NERC determination with which it disagrees. 24 *Id.* 25 *Id.* at P 101. 37. The Commission notes that because of the operation of the size sections of the NERC registry criteria applicable to generators (i.e., greater than 20 MVA), only 23 percent of all QFs would meet this generally applicable threshold of 20 MVA (although some other QFs may be specified as either blackstart units material to and designated as part of a transmission entity's restoration plan or as generators material to the reliability of the bulk power system) and so would be subject to reliability standards. 26 While some QFs may be classified as blackstart or as “material” to the reliability of the bulk-power system, and so made subject to reliability standards, other QFs may qualify for exemptions because, despite their size, either as a QF that is a cogeneration facility that primarily serves behind the meter load such that the net capacity supplied to the bulk power system is less than the size threshold for compliance, or as a QF that has contractual arrangements to transfer responsibility for compliance with reliability standards or associated requirements including reporting to another entity that has registered with NERC. The net effect is that the universe of QFs that will be affected by this Final Rule, by virtue of operation of the NERC registry criteria, is likely to be relatively small. 26 *See* NOPR at P 6. Energy Information Administration
(EIA)data identify 3,625 QFs, of which 2,423 QFs are below 20 MW (which roughly corresponds to 20 MVA), leaving only 842 QFs that could be affected by this Final Rule. And, of these 842, only 745—23 percent—are interconnected to the grid. V. Information Collection Statement 38. The Paperwork Reduction Act
(PRA)27 requires each Federal agency to seek and obtain OMB approval before undertaking a collection of information directed to ten or more persons, or continuing a collection for which the Office of Management and Budget
(OMB)approval and validity of the control number are about to expire. 28 The PRA defines the phrase “collection of information” to be the “obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either— 27 44 U.S.C. 3501-3520. 28 44 U.S.C. 3502(3)(A)(i); 44 U.S.C. 3507(a)(3).
(i)Answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States; or
(ii)answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.” 29 OMB regulations require approval of certain information collection requirements imposed by agency rules. 30 29 44 U.S.C. 3502(3)(A). 30 5 CFR 1320.11. 39. As noted above, the Commission is amending its regulations to eliminate the exemption available to QFs from the requirements of section 215 of the FPA. Because the Commission is not adopting information collections in this Final Rule, it is not subject to OMB review under the PRA. However, the Commission will submit for informational purposes only a copy of this Final Rule to OMB. VI. Environmental Analysis 40. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 31 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. As explained above, this proposed rule carries out the intent of legislation, specifically section 215 of the FPA. It lifts an exemption and thus makes section 215 of the FPA applicable to QFs; it does not substantially change the effect of the legislation. Accordingly, no environmental consideration is necessary. 32 31 *Regulations Implementing the National Environmental Policy Act* , Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987). 32 18 CFR 380.4(a)(2)(ii). VII. Regulatory Flexibility Act Analysis 41. The Regulatory Flexibility Act of 1980
(RFA)33 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The total universe of qualifying facilities is 3,265 entities. 34 Of these, 2,423 entities are below 20 MW (the threshold for applicability of the Reliability Standards is 20 MVA for an individual generating unit, or 75 MVA in aggregate for a generating plant), 35 which leaves 842 entities that could potentially be impacted by reliability standards. Of these 842 entities, only 745 are listed as being interconnected to the grid. Accordingly, out of a total of 3265 QFs, only 745, or 23 percent would likely be affected by the change in regulations proposed here. Most, if not all, of the QFs that would be affected by this Final Rule do not fall within the definition of small entities, 36 nor do they meet the threshold criteria for applicability of the RFA to electric utilities established by the Small Business Administration, which is based on a size standard of 4 million MWh. 37 33 5 U.S.C. 601-12. 34 NOPR at P 10. 35 The 20 MVA threshold corresponds to 20 MW, if a unit is operating at a unity power factor. 36 The RFA definition of “small entity” refers to the definition provided in the Small Business Act, which defines a “small business concern” as a business that is independently owned and operated and that is not dominant in its field of operation. *See* 15 U.S.C. 632. 37 The Small Business Size Standard component of the North American Industry Classification System (NAICS) defines a small utility as one that, including its affiliates, is primarily engaged in generation, transmission, and/or distribution of electric energy for sale and whose total electric output for the preceeding fiscal years did not exceed 4 million MWh. See 13 CFR 121.201. 42. Comments filed by Indeck and Sunray argue that the Commission's analysis is deficient. They argue that, contrary to the Commission's findings, most QFs are independently owned and operated and thus do meet the definition of “small entity.” They also argue that there are many QFs whose total electric output for the preceding fiscal years does not exceed 4 million MWh. They state that is particularly true because many QFs operate only on an intermittent basis and thus “it is entirely possible that many wind, solar, run of the river hydroelectric, and cogeneration facilities with nameplate capacities well in excess of 20 MW are still protected by the RFA and that many of the 745 QFs identified as being subject to the rule are, indeed, small entities.” 38 38 Sunray at 11; Indeck at 9. 43. We continue to believe that, given the NERC size threshold for registering generators, few if any of the QFs that will be required to comply with reliability standards as a result of this Final Rule will be small entities. Sunray and Indeck recognize that a 20 MVA or 20 MW facility would not normally be considered small for purposes of the RFA. They argue, however, that some QFs generate so intermittently that they would be considered small. Given that the Small Business Administration's standard (4 million MWh annually) is the equivalent of a 4 MW facility, we would not expect that many 20 MW facilities would generate so intermittently that they fall within the SBA definition of a small facility. Moreover, the NERC registry criteria provide for exclusion of an entity that otherwise would meet the registry criteria, if the entity can reasonably demonstrate that it does not have a material impact on the reliability of the bulk-power system. Generators that meet the nameplate size threshold for registration, but generate so intermittently that they would be considered small entities under SBA criteria, are likely to be able to show that they do not have a material impact on the reliability of the bulk-power system and thus need not be registered. Further, we note, in the Reliability Final Rule, the Commission took steps to lessen the effect of the reliability standards on small entities in general. 39 While few generators affected by the reliability standards will fall within the definition of small entities, the Commission has thus taken steps to further minimize the effects on small entities while at the same time assuring the reliability of the bulk-power system. 39 *See* Reliability Final Rule, FERC Stats. & Regs. ¶ 31,242 at P 1926. 44. Even if a very small number of QFs that fall within the definition of small are affected by this Final Rule, we believe that assuring the reliability of the bulk-power system justifies our action here. VIII. Document Availability 45. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( *http://www.ferc.gov* ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 46. From the Commission's Home Page on the Internet, this information is available in the Commission's document management system, eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 47. User assistance is available for eLibrary and the Commission's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or
(202)502-8222 (e-mail at *FERCOnlineSupport@FERC.gov* ), or the Public Reference Room at
(202)502-8371, TTY
(202)502-8659 (e-mail at *public.referenceroom@ferc.gov* ). IX. Effective Date 48. We will deny Florida Renewable QFs' request that QFs be given a grace period of one year to comply with this rule. Florida Renewable QFs argues that it will be more burdensome on QFs than for other generators to comply with mandatory reliability standards because QFs were not previously subject to non-mandatory NERC reliability guidelines. We do not agree; we see no reason to delay the effectiveness of reliability standards for an entity that is needed to maintain the reliability of the bulk-power system. Moreover, all users of the bulk-power system that meet compliance registry criteria are becoming subject to mandatory reliability requirements for the first time. It is not just QFs that face compliance with mandatory reliability standards for the first time. In this regard, as several commenters point out, many QFs have been subject to some type of reliability standards, by contract or otherwise, for a long time. We therefore do not believe that QFs are in a markedly different position than other generators in terms of being prepared to comply with the reliability standards. Moreover, as we have discussed earlier, 40 the reliability standards, because of the operation of the registry criteria, will generally affect larger generation facilities, so that concern that an earlier effective date will constitute a particular burden for small facilities is misplaced. These regulations are effective June 25, 2007. 40 P 37, 41-43. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in Section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. List of Subjects in 18 CFR Part 292 Electric power, Electric power plants, Electric utilities, Natural gas, Reporting and recordkeeping requirements. By the Commission. Kimberly D. Bose, Secretary. In consideration of the foregoing, the Commission amends part 292, Chapter I, Title 18, Code of Federal Regulations, as follows: PART 292—REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER PRODUCTION AND COGENERATION 1. The authority citation for part 292 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. 2. In § 292.601, paragraph (c)(3) is revised to read: § 292.601 Exemption to qualifying facilities from the Federal Power Act.
(c)* * *
(3)Sections 202(c), 210, 211, 212, 213, 214, 215, 220, 221 and 222; [FR Doc. E7-10007 Filed 5-23-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 635 RIN 0702-AA56 Law Enforcement Reporting AGENCY: Department of the Army, DoD. ACTION: Final rule. SUMMARY: The Department of the Army is publishing our rule concerning law enforcement reporting. The regulation prescribes policies and procedures on preparing, reporting, using, retaining, and disposing of Military Police Reports. The regulation prescribes policies and procedures for offense reporting and the release of law enforcement information. DATES: *Effective Date:* June 25, 2007. ADDRESSES: Headquarters, Department of the Army, Office of the Provost Marshal General, ATTN: DAPM-MPD-LE, 2800 Army Pentagon, Washington, DC 20310-2800. FOR FURTHER INFORMATION CONTACT: James Crumley,
(703)692-6721. SUPPLEMENTARY INFORMATION: A. Background In the December 9, 2005 issue of the **Federal Register** (70 FR 73181) the Department of the Army published a proposed rule, amending 32 CFR part 635. The Department of the Army published a proposed rule in the May 15, 2006 issue of the **Federal Register** (71 FR 27961) amending 32 CFR Part 635 to add the sexual assault reporting procedures. The Department of the Army published a proposed rule in the March 15, 2007 issue of the **Federal Register** (72 FR 12140) amending 32 CFR part 635 to add revisions that address sexual assault reporting and evidence handling procedures; and incorporate restricted reporting procedures for certain domestic violence incidents. The Department of the Army received no comments on the proposed rule. B. Regulatory Flexibility Act The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. C. Unfunded Mandates Reform Act The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more. D. National Environmental Policy Act The Department of the Army has determined that the National Environmental Policy Act does not apply because the rule does not have an adverse impact on the environment. E. Paperwork Reduction Act The Department of the Army has determined that the Paperwork Reduction Act does not apply because the rule does not involve collection of information from the public. F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights) The Department of the Army has determined that Executive Order 12630 does not apply because the rule does not impair private property rights. G. Executive Order 12866 (Regulatory Planning and Review) The Department of the Army has determined that according to the criteria defined in Executive Order 12866 this rule is not a significant regulatory action. As such, the rule is not subject to Office of Management and Budget review under section 6(a)(3) of the Executive Order. H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks) The Department of the Army has determined that according to the criteria defined in Executive Order 13045 this rule does not apply. I. Executive Order 13132 (Federalism) The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Frederick W. Bucher, Chief, Law Enforcement Policy and Oversight Branch. List of Subjects in 32 CFR Part 635 Crime, Law, Law enforcement, Law enforcement officers, Military law. For reasons stated in the preamble the Department of the Army revises 32 CFR part 635 to read as follows: PART 635—LAW ENFORCEMENT REPORTING Subpart A—Records Administration Sec. 635.1 General. 635.2 Safeguarding official information. 635.3 Special requirements of the Privacy Act of 1974. 635.4 Administration of expelled or barred persons file. 635.5 Police Intelligence/Criminal Information. 635.6 Name checks. 635.7 Registration of sex offenders. Subpart B—Release of Information 635.8 General. 635.9 Guidelines for disclosure within DOD. 635.10 Release of information. 635.11 Release of information under the Freedom of Information Act (FOIA). 635.12 Release of information under the Privacy Act of 1974. 635.13 Amendment of records. 635.14 Accounting for military police record disclosure. 635.15 Release of law enforcement information furnished by foreign governments or international organizations. Subpart C—Offense Reporting 635.16 General. 635.17 Military Police Report. 635.18 Identifying criminal incidents and subjects of investigation. 635.19 Offense codes. 635.20 Military Police Codes (MPC). 635.21 USACRC control numbers. 635.22 Reserve component, U.S. Army Reserve, and Army National Guard Personnel. 635.23 DA Form 4833 (Commander's Report of Disciplinary or Administrative Action). 635.24 Updating the COPS MPRS. 635.25 Submission of criminal history data to the CJIS. 635.26 Procedures for reporting Absence without Leave
(AWOL)and desertion offenses. 635.27 Vehicle Registration System. 635.28 Procedures for restricted/unrestricted reporting in sexual assault cases. 635.29 Domestic violence and protection orders. 635.30 Establishing domestic violence Memoranda of Understanding. 635.31 Lost, abandoned, or unclaimed property. Subpart D—Army Quarterly Trends and Analysis Report 635.32 General. 635.33 Crime rate reporting. Subpart E—Victim and Witness Assistance Procedures 635.34 General. 635.35 Procedures. 635.36 Notification. 635.37 Statistical reporting requirements. Authority: 28 U.S.C. 534 note, 42 U.S.C. 10601, 18 U.S.C. 922, 42 U.S.C. 14071, 10 U.S.C. 1562, 10 U.S.C. Chap. 47. Subpart A—Records Administration § 635.1 General.
(a)Military police records and files created under provisions of this part will be maintained and disposed of in accordance with instructions and standards prescribed by Army Regulation
(AR)25-400-2, AR 25-55, AR 340-21, and other applicable HQDA directives.
(b)Each Provost Marshal/Director of Emergency Services will appoint in writing two staff members, one primary and one alternate, to account for and safeguard all records containing personal information protected by law. Action will be taken to ensure that protected personal information is used and stored only where facilities and conditions will preclude unauthorized or unintentional disclosure.
(c)Personally identifying information includes, for example, information that is intimate or private to an individual, as distinguished from that which concerns a person's official function or public life. Specific examples include the social security number (SSN), medical history, home address, and home telephone number.
(d)Access to areas in which military police records are prepared, processed and stored will be restricted to those personnel whose duties require their presence or to other personnel on official business. Military police records containing personal information will be stored in a locked room or locked filing cabinet when not under the personal control of authorized personnel. Alternate storage systems providing equal or greater protection may be used in accordance with AR 25-55.
(e)Only personnel on official business can have access to areas in which computers are used to store, process or retrieve military police records. When processing military police information, computer video display monitors will be positioned so that protected information cannot be viewed by unauthorized persons. Computer output from automated military police systems will be controlled as specified in paragraph
(d)of this section.
(f)Output from any locally prepared data or automated systems containing personal information subject to the Privacy Act will be controlled per AR 340-21. All locally created, Army Commands (ACOM), Army Service Component Commands
(ASCC)or Direct Reporting Units
(DRU)unique automated systems of records containing law enforcement information must be reported to and approved by HQDA, Office of the Provost Marshal General prior to use. The request must clearly document why the COPS MPRS system cannot meet the requirements or objectives of the organization. After review and approval by HQDA, the installation, ACOM, ASCC and DRU will complete and process the systems notice for publication in the **Federal Register** per AR 340-21 and the Privacy Act.
(g)Provost Marshals/Directors of Emergency Services using automated systems will appoint, in writing, an Information Assurance Security Officer
(IASO)who will ensure implementation of automation security requirements within the organization. Passwords used to control systems access will be generated, issued, and controlled by the IASO.
(h)Supervisors at all levels will ensure that personnel whose duties involve preparation, processing, filing, and release of military police records are knowledgeable of and comply with policies and procedures contained in this part, AR 25-55, AR 340-21, and other applicable HQDA directives. Particular attention will be directed to provisions on the release of information and protection of privacy.
(i)Military police records identifying juveniles as offenders will be clearly marked as juvenile records and will be kept secure from unauthorized access by individuals. Juvenile records may be stored with adult records but clearly designated as juvenile records even after the individual becomes of legal age. In distributing information on juveniles, Provost Marshals/Directors of Emergency Services will ensure that only individuals with a clear reason to know the identity of a juvenile are provided the identifying information on the juvenile. For example, a community commander is authorized to receive pertinent information on juveniles. When a MPR identifying juvenile offenders must be provided to multiple commanders or supervisors, the Provost Marshal/Director of Emergency Services must sanitize each report to withhold juvenile information not pertaining to that commander's area of responsibility.
(j)Military police records in the custody of USACRC will be processed, stored and maintained in accordance with policy established by the Director, USACRC. § 635.2 Safeguarding official information.
(a)Military police records are unclassified except when they contain national security information as defined in AR 380-5.
(b)When military police records containing personal information transmitted outside the installation law enforcement community to other departments and agencies within DOD, such records will be marked “For Official Use Only.” Records marked “For Official Use Only” will be transmitted as prescribed by AR 25-55. Use of an expanded marking is required for certain records transmitted outside DOD per AR 25-55.
(c)Military police records may also be released to Federal, state, local or foreign law enforcement agencies as prescribed by AR 340-21. Expanded markings will be applied to these records. § 635.3 Special requirements of the Privacy Act of 1974.
(a)Certain personal information is protected under the Privacy Act and AR 340-21.
(b)Individuals requested to furnish personal information must be advised of the purpose for which the information is collected and the disclosures by which it is routinely used.
(c)Army law enforcement personnel performing official duties often require an individual's SSN for identification purposes. Personal information may be obtained from identification documents without violating an individual's privacy and without providing a Privacy Act Statement. This personal information can be used to complete military police reports and records. The following procedures may be used to obtain SSNs:
(1)Active Army, U.S. Army Reserve (USAR), Army National Guard
(ARNG)and retired military personnel are required to produce their Common Access Card, DD Form 2 (Act), DD Form 2 (Res), or DD Form 2
(Ret)(U.S. Armed Forces of the United States General Convention Identification Card), or other government issued identification, as appropriate.
(2)Family members of sponsors may be requested to produce their DD Form 1173 (Uniformed Services Identification and Privilege Card). Information contained thereon (for example, the sponsor's SSN) may be used to verify and complete applicable sections of MPRs and related forms.
(3)DOD civilian personnel may be requested to produce their appropriate service identification. DA Form 1602 (Civilian Identification) may be requested from DA civilian employees. If unable to produce such identification, DOD civilians may be requested to provide other verifying documentation.
(4)Non-DOD civilians, including family members and those whose status is unknown, will be advised of the provisions of the Privacy Act Statement when requested to disclose their SSN.
(d)Requests for new systems of military police records, changes to existing systems, and continuation systems, not addressed in existing public notices will be processed as prescribed in AR 340-21, after approval is granted by HQDA, OPMG (DAPM-MPD-LE). § 635.4 Administration of expelled or barred persons file.
(a)When action is completed by an installation commander to bar an individual from the installation under 18 U.S.C. 1382 the installation Provost Marshal/Director of Emergency Services will be provided—
(1)A copy of the letter or order barring the individual.
(2)Reasons for the bar.
(3)Effective date of the bar and period covered.
(b)The Provost Marshal/Director of Emergency Services will maintain a list of barred or expelled persons. When the bar or expulsion action is predicated on information contained in military police investigative records, the bar or expulsion document will reference the appropriate military police record or MPR. When a MPR results in the issuance of a bar letter the Provost Marshal/Director of Emergency Services will forward a copy of the bar letter to Director, USACRC to be filed with the original MPR. The record of the bar will also be entered into COPS, in the Military Police Reporting System module, under Barrings. § 635.5 Police Intelligence/Criminal Information.
(a)The purpose of gathering police intelligence is to identify individuals or groups of individuals in an effort to anticipate, prevent, or monitor possible criminal activity. If police intelligence is developed to the point where it factually establishes a criminal offense, an investigation by the military police, U.S. Army Criminal Investigation Command (USACIDC) or other investigative agency will be initiated. The crimes in §§ 635.5b(2) and
(3)will be reported to the nearest Army counterintelligence office as required by AR 381-12.
(b)Information on persons and organizations not affiliated with DOD may not normally be acquired, reported, processed or stored. Situations justifying acquisition of this information include, but are not limited to—
(1)Theft, destruction, or sabotage of weapons, ammunition, equipment facilities, or records belonging to DOD units or installations.
(2)Possible compromise of classified defense information by unauthorized disclosure or espionage.
(3)Subversion of loyalty, discipline, or morale of DA military or civilian personnel by actively encouraging violation of laws, disobedience of lawful orders and regulations, or disruption of military activities.
(4)Protection of Army installations and activities from potential threat.
(5)Information received from the FBI, state, local, or international law enforcement agencies which directly pertain to the law enforcement mission and activity of the installation Provost Marshal Office/Directorate of Emergency Services, ACOM, ASCC or DRU Provost Marshal Office Directorate of Emergency Services, or that has a clearly identifiable military purpose and connection. A determination that specific information may not be collected, retained or disseminated by intelligence activities does not indicate that the information is automatically eligible for collection, retention, or dissemination under the provisions of this part. The policies in this section are not intended and will not be used to circumvent any federal law that restricts gathering, retaining or dissemination of information on private individuals or organizations.
(c)Retention and disposition of information on non-DOD affiliated individuals and organizations are subject to the provisions of AR 380-13 and AR 25-400-2.
(d)Police intelligence such as TALON events will be captured by utilizing the TALON report format. These reports will be identified as “Pre-TALON” reports. The Provost Marshal Office/Directorate of Emergency Services will forward these reports to the counterintelligence activity which supports their installation/area. The counterintelligence activity will determine if the suspicious incident/activity should be entered into the DoD TALON reporting system. The counterintelligence activity will inform the submitting Army law enforcement agency as to whether or not the “Pre-Talon” report was submitted into the DoD TALON reporting system.
(e)In addition to Pre-TALON reporting, Installation Law Enforcement Agencies/Activities will also comply with their Combatant Command's policies regarding the reporting of suspicious activities or events which meet established criteria.
(f)If a written extract from local police intelligence files is provided to an authorized investigative agency, the following will be included on the transmittal documents: “THIS DOCUMENT IS PROVIDED FOR INFORMATION AND USE. COPIES OF THIS DOCUMENT, ENCLOSURES THERETO, AND INFORMATION THEREFROM, WILL NOT BE FURTHER RELEASED WITHOUT THE PRIOR APPROVAL OF THE INSTALLATION PROVOST MARSHAL/DIRECTOR OF EMERGENCY SERVICES.”
(g)Local police intelligence files may be exempt from certain disclosure requirements by AR 25-55 and the Freedom of Information Act (FOIA). § 635.6 Name checks.
(a)Information contained in military police records may be released under the provisions of AR 340-21 to authorized personnel for valid background check purposes. Examples include child care/youth program providers, access control, unique or special duty assignments, and security clearance procedures. Any information released must be restricted to that necessary and relevant to the requester's official purpose. Provost Marshals/Directors of Emergency Services will establish written procedures to ensure that release is accomplished in accordance with AR 340-21.
(b)Checks will be accomplished by a review of the COPS MPRS. Information will be disseminated according to Subpart B of this part.
(c)In response to a request for local files or name checks, Provost Marshals/Directors of Emergency Services will release only founded offenses with final disposition. Offenses determined to be unfounded will not be released. These limitations do not apply to requests submitted by law enforcement agencies for law enforcement purposes, and counterintelligence investigative agencies for counterintelligence purposes.
(d)COPS MPRS is a database, which will contain all military police reports filed worldwide. Authorized users of COPS MPRS can conduct name checks for criminal justice purposes. To conduct a name check, users must have either the social security number/foreign national number, or the first and last name of the individual. If a search is done by name only, COPS MPRS will return a list of all matches to the data entered. Select the appropriate name from the list.
(e)A successful query of COPS MPRS would return the following information:
(1)Military Police Report Number;
(2)Report Date;
(3)Social Security Number;
(4)Last Name;
(5)First Name;
(6)Protected Identity (Y/N);
(7)A link to view the military police report; and
(8)Whether the individual is a subject, victim, or a person related to the report disposition.
(f)Name checks will include the criteria established in COPS MPRS and the USACRC. All of the policies and procedures for such checks will conform to the provisions of this part. Any exceptions to this policy must be coordinated with HQDA, Office of the Provost Marshal General before any name checks are conducted. The following are examples of appropriate uses of the name check feature of COPS MPRS:
(1)Individuals named as the subjects of serious incident reports.
(2)Individuals named as subjects of investigations who must be reported to the USACRC.
(3)Employment as child care/youth program providers.
(4)Local checks of the COPS MPRS as part of placing an individual in the COPS MPRS system.
(5)Name checks for individuals employed in law enforcement positions.
(g)Provost Marshals/Directors of Emergency Services will ensure that an audit trail is established and maintained for all information released from military police records.
(h)Procedures for conduct of name checks with the USACRC are addressed in AR 195-2. The following information is required for USACRC name checks (when only the name is available, USACRC should be contacted telephonically for assistance):
(1)Full name, date of birth, SSN, and former service number of the individual concerned.
(2)The specific statute, directive, or regulation on which the request is based, when requested for other than criminal investigative purposes.
(i)Third party checks (first party asks second party to obtain information from third party on behalf of first party) will not be conducted. § 635.7 Registration of sex offenders. Soldiers who are convicted by court-martial for certain sexual offenses must comply with all applicable state registration requirements in effect in the state in which they reside. See AR 190-47, Chapter 14 and AR 27-10, Chapter 24. This is a statutory requirement based on the Jacob Wetterling Act, and implemented by DOD Instruction 1325.7, and AR 27-10. Provost Marshals/Directors of Emergency Services should coordinate with their local Staff Judge Advocate to determine if an individual must register. The registration process will be completed utilizing the state registration form, which is available through state and local law enforcement agencies. A copy of the completed registration form will be maintained in the installation Provost Marshal Office/Directorate of Emergency Services. Additionally, a Military Police Report (DA Form 3975) will be completed as an information entry into COPS. Installation Provost Marshals/Directors of Emergency Services will provide written notice to state and local law enforcement agencies of the arrival of an offender to the local area so the registration process can be completed. Subpart B—Release of Information § 635.8 General.
(a)The policy of HQDA is to conduct activities in an open manner and provide the public accurate and timely information. Accordingly, law enforcement information will be released to the degree permitted by law and Army regulations.
(b)Any release of military police records or information compiled for law enforcement purposes, whether to persons within or outside the Army, must be in accordance with the FOIA and Privacy Act.
(c)Requests by individuals for access to military police records about themselves will be processed in compliance with AR 25-55 and AR 340-21.
(d)Military police records in the temporary possession of another organization remain the property of the originating law enforcement agency. The following procedures apply to any organization authorized temporary use of military police records:
(1)Any request from an individual seeking access to military police records will be immediately referred to the originating law enforcement agency for processing.
(2)When the temporary purpose of the using organization has been satisfied, the military police records will be destroyed or returned to the originating law enforcement agency.
(3)A using organization may maintain information from military police records in their system of records, if approval is obtained from the originating law enforcement agency. This information may include reference to a military police record (for example, MPR number or date of offense), a summary of information contained in the record, or the entire military police record. When a user includes a military police record in its system of records, the originating law enforcement agency may delete portions from that record to protect special investigative techniques, maintain confidentiality, preclude compromise of an investigation, and protect other law enforcement interests. § 635.9 Guidelines for disclosure within DOD.
(a)Criminal record information contained in military police documents will not be disseminated unless there is a clearly demonstrated official need to know. A demonstrated official need to know exists when the record is necessary to accomplish a function that is within the responsibility of the requesting activity or individual, is prescribed by statute, DOD directive, regulation, or instruction, or by Army regulation.
(1)Criminal record information may be disclosed to commanders or staff agencies to assist in executing criminal justice functions. Only that information reasonably required will be released. Such disclosure must clearly relate to a law enforcement function.
(2)Criminal record information related to subjects of criminal justice disposition will be released when required for security clearance procedures.
(3)Criminal record information may be released to an activity when matters of national security are involved.
(4)When an individual informs an activity of criminal record information pertaining to them, the receiving activity may seek verification of this information through the responsible law enforcement agency or may forward the request to that organization. The individual must be advised by the receiving agency of the action being pursued. Law enforcement agencies will respond to such requests in the same manner as FOIA and Privacy Act cases.
(b)Nothing in this part will be construed to limit the dissemination of information between military police, the USACIDC, and other law enforcement agencies within the Army and DOD. § 635.10 Release of information.
(a)Release of information from Army records to agencies outside DOD will be governed by AR 25-55, AR 340-21, AR 600-37, and this part. Procedures for release of certain other records and information are contained in AR 20-1, AR 27-20, AR 27-40, AR 40-66, AR 195-2, AR 360-1, and AR 600-85. Installation drug and alcohol offices may be provided an extract of DA Form 3997 (Military Police Desk Blotter) for offenses involving the use of alcohol or drugs (for example, drunk driving, drunk and disorderly conduct, or positive urinalysis) or illegal use of drugs.
(b)Installation Provost Marshals/Directors of Emergency Services are the release authorities for military police records under their control. They may release criminal record information to other activities as prescribed in AR 25-55 and AR 340-21, and this part.
(c)Authority to deny access to criminal records information rests with the initial denial authority
(IDA)for the FOIA and the access and amendment refusal authority
(AARA)for Privacy Acts cases, as addressed in AR 25-55 and AR 340-21. § 635.11 Release of information under the Freedom of Information Act (FOIA).
(a)The release and denial authorities for all FOIA cases concerning military police records include Provost Marshals/Directors of Emergency Services and the Commander, USACIDC. Authority to act on behalf of the Commander, USACIDC is delegated to the Director, USACRC.
(b)FOIA requests from members of the press will be coordinated with the installation public affairs officer prior to release of records under the control of the installation Provost Marshal/Director of Emergency Services. When the record is on file at the USACRC the request must be forwarded to the Director, USACRC.
(c)Requests will be processed as prescribed in AR 25-55 and as follows:
(1)The Provost Marshal/Director of Emergency Services will review requested reports to determine if any portion is exempt from release. Any discretionary decision to disclose information under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.
(2)Statutory and policy questions will be coordinated with the local staff judge advocate.
(3)Coordination will be completed with the local USACIDC activity to ensure that the release will not interfere with a criminal investigation in progress or affect final disposition of an investigation.
(4)If it is determined that a portion of the report, or the report in its entirety will not be released, the request to include a copy of the MPR or other military police records will be forwarded to the Director, USACRC, ATTN: CICR-FP, 6010 6th Street, Fort Belvoir, VA 22060-5585. The requester will be informed that their request has been sent to the Director, USACRC, and provided the mailing address for the USACRC. When forwarding FOIA requests, the outside of the envelope will be clearly marked “FOIA REQUEST.”
(5)A partial release of information by a Provost Marshal/Director of Emergency Services is permissible when partial information is acceptable to the requester. (An example would be the deletion of a third party's social security number, home address, and telephone number, as permitted by law). If the requester agrees to the omission of exempt information, such cases do not constitute a denial. If the requester insists on the entire report, a copy of the report and the request for release will be forwarded to the Director, USACRC. There is no requirement to coordinate such referrals at the installation level. The request will simply be forwarded to the Director, USACRC for action.
(6)Requests for military police records that have been forwarded to USACRC and are no longer on file at the installation Provost Marshal Office/Directorate of Emergency Services will be forwarded to the Director, USACRC for processing.
(7)Requests concerning USACIDC reports of investigation or USACIDC files will be referred to the Director, USACRC. In each instance, the requester will be informed of the referral and provided the Director, USACRC address.
(8)Requests concerning records that are under the supervision of an Army activity, or other DOD agency, will be referred to the appropriate agency for response. § 635.12 Release of information under the Privacy Act of 1974.
(a)Military police records may be released according to provisions of the Privacy Act of 1974, as implemented by AR 340-21 and this part.
(b)The release and denial authorities for all Privacy Act cases concerning military police records are provided in § 635.10 of this part.
(c)Privacy Act requests for access to a record, when the requester is the subject of that record, will be processed as prescribed in AR 340-21. § 635.13 Amendment of records.
(a)*Policy.* An amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. For example, a request to remove an individual's name as the subject of an MPR would be proper providing credible evidence was presented to substantiate that a criminal offense was not committed or did not occur as reported. Expungement of a subject's name from a record because the commander took no action or the prosecutor elected not to prosecute normally will not be approved. In compliance with DOD policy, an individual will still remain entered in the Defense Clearance Investigations Index
(DCII)to track all reports of investigation.
(b)*Procedures.*
(1)Installation Provost Marshals/Directors of Emergency Services will review amendment requests. Upon receipt of a request for an amendment of a military police record that is five or less years old, the installation Provost Marshal/Director of Emergency Services will gather all relevant available records at their location. The installation Provost Marshal/Director of Emergency Services will review the request and either approve the request or forward it to the Director, USACRC with recommendation and rationale for denial. In accordance with AR 340-21, paragraph 1-7l, the Commanding General, USACIDC is the sole access and amendment authority for criminal investigation reports and military police reports. Access and amendment refusal authority is not delegable. If the decision is made to amend an MPR, a supplemental DA Form 3975 will be prepared. The supplemental DA Form 3975 will change information on the original DA Form 3975 and will be mailed to the Director, USACRC with the amendment request from the requestor as an enclosure. The Director, USACRC will file the supplemental DA Form 3975 with the original MPR and notify the requestor of the amendment of the MPR.
(2)Requests to amend military police documents that are older than five years will be coordinated through the Director, USACRC. The installation Provost Marshal/Director of Emergency Services will provide the Director, USACRC a copy of an individual's request to amend a military police record on file at the USACRC. If the Director, USACRC receives an amendment request, the correspondence with any documentation on file at the USACRC will be sent to the originating Provost Marshal Office/Directorate of Emergency Services. The installation Provost Marshal/Director of Emergency Services will review the request and either approve the request or forward it to the Director, USACRC for denial. A copy of the Provost Marshal/Director of Emergency Services' decision must be sent to the Director, USACRC to be filed in the USACRC record. If an amendment request is granted, copies of the supplemental DA Form 3975 will be provided to each organization, activity, or individual who received a copy of the original DA Form 3975.
(3)If the Provost Marshal Office/Directorate of Emergency Services no longer exists, the request will be staffed with the ACOM, ASCC or DRU Provost Marshal/Director of Emergency Services office that had oversight responsibility for the Provost Marshal Office/Directorate of Emergency Services at the time the DA Form 3975 was originated. § 635.14 Accounting for military police record disclosure.
(a)AR 340-21 prescribes accounting policies and procedures concerning the disclosure of military police records.
(b)Provost Marshals/Directors of Emergency Services will develop local procedures to ensure that disclosure data requirements by AR 340-21 are available on request. § 635.15 Release of law enforcement information furnished by foreign governments or international organizations.
(a)Information furnished by foreign governments or international organizations is subject to disclosure, unless exempted by AR 25-55, AR 340-21, federal statutes or executive orders.
(b)Information may be received from a foreign source under an express pledge of confidentiality as described in AR 25-55 and AR 340-21 (or under an implied pledge of confidentiality given prior to September 27, 1975).
(1)Foreign sources will be advised of the provisions of the Privacy Act of 1974, the FOIA, and the general and specific law enforcement exemptions available, as outlined in AR 340-21 and AR 25-55.
(2)Information received under an express promise of confidentiality will be annotated in the MPR or other applicable record.
(3)Information obtained under terms of confidentiality must clearly aid in furthering a criminal investigation.
(c)Denial recommendations concerning information obtained under a pledge of confidentiality, like other denial recommendations, will be forwarded by the records custodian to the appropriate IDA or AARA per AR 25-55 or AR 340-21.
(d)Release of U.S. information (classified military information or controlled unclassified information) to foreign governments is accomplished per AR 380-10. Subpart C—Offense Reporting § 635.16 General.
(a)This subpart establishes policy for reporting founded criminal offenses by Installation Management Command (IMCOM), Army Materiel Command
(AMC)and Medical Command (MEDCOM) installation and ACOM, ASCC and DRU Provost Marshal Offices/Directorates of Emergency Services.
(b)This subpart prescribes reporting procedures, which require the use of the COPS MPRS and a systems administrator to ensure that the system is properly functioning. Reporting requirements include—
(1)Reporting individual offenders to the USACRC, NCIC, CJIS, and the DOD.
(2)*Crime reports to the DOD.* DOD collects data from all the Services utilizing the Defense Incident-Based Reporting System (DIBRS). The Army inputs its data into DIBRS utilizing COPS. Any data reported to DIBRS is only as good as the data reported into COPS, so the need for accuracy in reporting incidents and utilizing proper offense codes is great. DIBRS data from DOD is eventually sent to the Department of Justice's National Incident-Based Reporting System (NIBRS). The data is eventually incorporated into the Uniform Crime Report.
(c)A Provost Marshal Office/Directorate of Emergency Services initiating a DA Form 3975 or other military police investigation has reporting responsibility explained throughout this subpart and this part in general.
(d)In the event the Provost Marshal Office/Directorate of Emergency Services determines that their office does not have investigative responsibility or authority, the MPR will be terminated and the case cleared by exceptional clearance. A case cleared by exceptional clearance is closed by the Provost Marshal/Director of Emergency Services when no additional investigative activity will be performed or the case is referred to another agency. If a case is transferred to the Provost Marshal/Director of Emergency Services from another law enforcement investigation agency the Provost Marshal Office/Directorate of Emergency Services will have all reporting responsibility using the COPS MPRS system. § 635.17 Military Police Report.
(a)*General Use.* DA form 3975 is a multipurpose form used to—
(1)Record all information or complaints received or observed by military police.
(2)Serve as a record of all military police and military police investigator activity.
(3)Document entries made into the COPS MPRS system and other automated systems.
(4)Report information concerning investigations conducted by civilian law enforcement agencies related to matters of concern to the U.S. Army.
(5)Advise commanders and supervisors of offenses and incidents involving personnel or property associated with their command or functional responsibility.
(6)Report information developed by commanders investigating incidents or conducting inspections that result in the disclosure of evidence that a criminal offense has been committed.
(b)*Special use.* The DA Form 3975 will be used to—
(1)Transmit completed DA Form 3946 (Military Police Traffic Accident Report). This will include statements, sketches, or photographs that are sent to a commander or other authorized official.
(2)Transmit the DD Form 1805 (U.S District Court Violation Notice) when required by local installation or U.S. Magistrate Court policy. The DA Form 3975 is used to advise commanders or supervisors that military, civilian, or contract personnel have been cited on a DD Form 1805.
(3)Match individual subjects with individual victims or witnesses, and founded criminal offenses. This is a federal statutory requirement. This is done using the relationships tab within COPS MPRS.
(4)Document victim/witness liaison activity.
(c)*Distribution.* The DA Form 3975 will be prepared in three copies, signed by the Provost Marshal/Director of Emergency Services or a designated representative, and distributed as follows—
(1)Original to USACRC. Further information, arising or developed at a later time, will be forwarded to USACRC using a supplemental DA Form 3975. Reports submitted to USACRC will include a good, legible copy of all statements, photographs, sketches, laboratory reports, and other information that substantiates the offense or facilitates the understanding of the report. The USACRC control number must be recorded on every DA Form 3975 sent to the USACRC. A report will not be delayed for adjudication or commander's action beyond 45 days.
(2)One copy retained in the Provost Marshal/Director of Emergency Services' files.
(3)One copy forwarded through the field grade commander to the immediate commander of each subject or organization involved in an offense.
(d)*Changing reports for unfounded offenses.* If an offense is determined to be unfounded, after the case has been forwarded to USACRC, the following actions will be completed:
(1)A supplemental DA Form 3975, using the same MPR number and USACRC control number will be submitted stating the facts of the subsequent investigation and that the case is unfounded.
(2)A copy of the supplemental DA Form 3975 will be provided to those agencies or activities that received a copy of the completed DA Form 3975 at the time of submission to USACRC and to the commander for action. § 635.18 Identifying criminal incidents and subjects of investigation.
(a)An incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on DA Form 3975 when credible information exists that the person or entity may have committed a criminal offense. The decision to title a person is an operational rather than a legal determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; but rather, ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes. Judicial or adverse administrative actions will not be based solely on the listing of an individual or legal entity as a subject on DA Form 3975.
(b)A known subject will be reported to the USACRC when the suspected offense is punishable by confinement of six months or more. The COPS MPRS will be used to track all other known subjects. A subject can be a person, corporation, or other legal entity, or organization about which credible information exists that would cause a trained law enforcement officer to presume that the person, corporation, other legal entity or organization may have committed a criminal offense.
(c)When investigative activity identifies a subject, all facts of the case must be considered. When a person, corporation, or other legal entity is entered in the subject block of the DA Form 3975, their identity is recorded in DA automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity or if an error was made in applying the credible information standard at the time of listing the entity as a subject of the report. It is emphasized that the credible information error must occur at the time of listing the entity as the subject of the MPR rather than subsequent investigation determining that the MPR is unfounded. This policy is consistent with DOD reporting requirements. The Director, USACRC enters individuals from DA Form 3975 into the DCII. § 635.19 Offense codes.
(a)The offense code describes, as nearly as possible, the complaint or offense by using an alphanumeric code. Appendix C of AR 190-45 lists the offense codes that are authorized for use within the Army. This list will be amended from time to time based on new reporting requirements mandated by legislation or administrative procedures. ACOM, ASCC, DRU commanders and installation Provost Marshals/Directors of Emergency Services will be notified by special letters of instruction issued in numerical order from HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) when additions or deletions are made to the list. The COPS MPRS module will be used for all reporting requirements.
(b)ACOM, ASCC, DRU and installations may establish local offense codes in category 2 (ACOM, ASCC, DRU and installation codes) for any offense not otherwise reportable. Locally established offense codes will not duplicate, or be used as a substitute for any offense for which a code is contained for other reportable incidents. Category 2 incidents are not reported to the Director, USACRC or the DOJ. If an offense occurs meeting the reporting description contained in Appendix C of AR 190-45, that offense code takes precedence over the local offense code. Local offense codes may be included, but explained, in the narrative of the report filed with the USACRC. Use the most descriptive offense code to report offenses.
(c)Whenever local policy requires the Provost Marshal/Director of Emergency Services to list the subject's previous offenses on DA Form 3975, entries will reflect a summary of disposition for each offense, if known. § 635.20 Military Police Codes (MPC).
(a)MPCs identify individual Provost Marshal Offices/Directorates of Emergency Services. The Director, USACRC will assign MPCs to Provost Marshal Offices/Directorates of Emergency Services.
(b)Requests for assignment of a MPC will be included in the planning phase of military operations, exercises, or missions when law enforcement operations are anticipated. The request for a MPC will be submitted as soon as circumstances permit, without jeopardizing the military operation to HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). Consistent with security precautions, ACOM, ASCC and DRU will immediately inform HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) when assigned or attached military police units are notified for mobilization, relocation, activation, or inactivation.
(c)When a military police unit is alerted for deployment to a location not in an existing Provost Marshal/Director of Emergency Services' operational area, the receiving ACOM, ASCC, DRU or combatant commander will request assignment of an MPC number from HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) providing the area of operations does not have an existing MPC number. The receiving ACOM, ASCC, DRU or Unified Combatant Commander is further responsible for establishing an operational COPS system for the deployment. § 635.21 USACRC control numbers.
(a)Case numbers to support reporting requirements will be assigned directly to each installation via COPS. To ensure accuracy in reporting criminal incidents, USACRC control numbers will be used only one time and in sequence. Every MPR sent to the USACRC will have a USACRC control number reported. Violation of this policy could result in significant difficulties in tracing reports that require corrective action.
(b)If during the calendar year ACOM, ASCC or DRU reassigns control numbers from one installation to another, HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) will be notified. The Director USACRC will receive an information copy of such notification from ACOM, ASCC or DRU's law enforcement operations office.
(c)USACRC control numbers will be issued along with each newly assigned MPC.
(d)When the deploying unit will be located in an area where there is an existing Provost Marshal/Director of Emergency Services activity, the deploying unit will use the MPC number and USACRC control numbers of the host Provost Marshal/Director of Emergency Services. § 635.22 Reserve Component, U.S. Army Reserve, and Army National Guard Personnel.
(a)When in a military duty status pursuant to official orders (Federal status for National Guard) Reserve and National Guard personnel will be reported as active duty. Otherwise they will be reported as civilians.
(b)The DA Form 3975 and DA Form 4833 will be forwarded directly to the appropriate Regional Readiness Command or the Soldier's division commander. A copy of the DA Form 3975 will also be forwarded to Chief, Army Reserve/Commander, United States Army Reserve Command, AFRC-JAM, 1404 Deshler Street, Fort McPherson, GA 30330. The forwarding correspondence will reflect this regulation as the authority to request disposition of the individual. § 635.23 DA Form 4833 (Commander's Report of Disciplinary or Administrative Action).
(a)*Use.* DA Form 4833 is used with DA Form 3975 to—
(1)Record actions taken against identified offenders.
(2)Report the disposition of offenses investigated by civilian law enforcement agencies.
(b)*Preparation by the Provost Marshal/Director of Emergency Services.* The installation Provost Marshal/Director of Emergency Services initiates this critical document and is responsible for its distribution and establishing a suspense system to ensure timely response by commanders. Disposition reports are part of the reporting requirements within DA, DOD, and DOJ.
(c)*Completion by the unit commander.* Company, troop, and battery level commanders are responsible and accountable for completing DA Form 4833 with supporting documentation in all cases investigated by MPI, civilian detectives employed by the Department of the Army, and the PMO. The Battalion Commander or the first Lieutenant Colonel in the chain of command is responsible and accountable for completing DA Form 4833 with support documentation (copies of Article 15s, court-martial orders, reprimands, etc) for all USACIDC investigations. The commander will complete the DA Form 4833 within 45 days of receipt.
(1)Appropriate blocks will be checked and blanks annotated to indicate the following:
(i)Action taken (for example, judicial, nonjudicial, or administrative). In the event the commander takes action against the soldier for an offense other than the one listed on the DA Form 3975, the revised charge or offense will be specified in the REMARKS section of the DA Form 4833.
(ii)Sentence, punishment, or administrative action imposed.
(iii)Should the commander take no action, the DA Form 4833 must be annotated to reflect that fact.
(2)If the commander cannot complete the DA Form 4833 within 45 days, a written memorandum is required to explain the circumstances. The delay will have an impact on other reporting requirements (e.g., submitting fingerprint cards to the FBI).
(d)*Procedures when subjects are reassigned.* When the subject of an offense is reassigned, the Provost Marshal/Director of Emergency Services will forward the DA Form 3975, DA Form 4833, and all pertinent attachments to the gaining installation Provost Marshal/Director of Emergency Services who must ensure that the new commander completes the document. Copies of the documents may be made and retained by the processing Provost Marshal Office/Directorate of Emergency Services before returning the documents to the losing installation Provost Marshal/Director of Emergency Services for completion of automated entries and required reports.
(e)*Report on subjects assigned to other installations.* When the DA Form 3975 involves a subject who is assigned to another installation, the initiating Provost Marshal/Director of Emergency Services will forward the original and two copies of DA Form 4833 to the Provost Marshal/Director of Emergency Services of the installation where the soldier is permanently assigned. The procedures in paragraph
(d)of this section will be followed for soldiers assigned to other commands.
(f)*Offenses not reportable to USACRC.* When the offense is not within a category reportable to USACRC, the original DA Form 4833 is retained by the Provost Marshal/Director of Emergency Services. Otherwise, the original is sent to the Director, USACRC for filing with the MPR.
(g)*Civilian court proceedings.* If a soldier is tried in a civilian court, and the Provost Marshal/Director of Emergency Services has initiated a MPR, the Provost Marshal/Director of Emergency Services must track the civilian trial and report the disposition on DA Form 4833 as appropriate. That portion of the signature block of DA Form 4833 that contains the word “Commanding” will be deleted and the word “Reporting” substituted. The Provost Marshal/Director of Emergency Services or other designated person will sign DA Form 4833 before forwarding it to USACRC.
(h)*Dissemination to other agencies.* A copy of the completed DA Form 4833 reflecting offender disposition will also be provided to those agencies or offices that originally received a copy of DA Form 3975 when evidence is involved. The evidence custodian will also be informed of the disposition of the case. Action may then be initiated for final disposition of evidence retained for the case now completed.
(i)*Review of offender disposition by the Provost Marshal/Director of Emergency Services.* On receipt of DA Form 4833 reflecting no action taken, the Provost Marshal/Director of Emergency Services will review the MPR. The review will include, but is not limited to the following—
(1)Determination of the adequacy of supporting documentation.
(2)Whether or not coordination with the supporting Staff Judge Advocate should have been sought prior to dispatch of the report to the commander for action.
(3)Identification of functions that warrant additional training of military police or security personnel (for example, search and seizure, evidence handling, or rights warning).
(j)*Offender disposition summary reports.* Provost Marshals/Directors of Emergency Services will provide the supported commander (normally, the general courts-martial convening authority or other persons designated by such authority) summary data of offender disposition as required or appropriate. Offender disposition summary data will reflect identified offenders on whom final disposition has been reported. These data will be provided in the format and at the frequency specified by the supported commander. § 635.24 Updating the COPS MPRS. Installation Provost Marshals/Directors of Emergency Services will establish standard operating procedures to ensure that every founded offense is reported into the COPS MPRS. Timely and accurate reporting is critical. If a case remains open, changes will be made as appropriate. This includes reporting additional witnesses and all aspects of the criminal report. § 635.25 Submission of criminal history data to the CJIS.
(a)*General.* This paragraph establishes procedures for submitting criminal history data (fingerprint cards) to CJIS when the Provost Marshal/Director of Emergency Services has completed a criminal inquiry or investigation. The policy only applies to members of the Armed Forces and will be followed when a military member has been read charges and the commander initiates proceedings for—
(1)*Field Grade Article 15, Uniform Code of Military Justice.* Initiation refers to a commander completing action to impose non-judicial punishment. Final disposition shall be action on appeal by the next superior authority, expiration of the time limit to file an appeal, or the date the military member indicates that an appeal will not be submitted.
(2)*A special or general courts-martial.* Initiation refers to the referral of court-martial charges to a specified court by the convening authority or receipt by the commander of an accused soldier's request for discharge in lieu of court-martial. Final disposition of military judicial proceedings shall be action by the convening authority on the findings and sentence, or final approval of a discharge in lieu of court-martial. The procedures in this subpart meet administrative and technical requirements for submitting fingerprint cards and criminal history information to CJIS. No variances are authorized. Results of summary court-martial will not be reported to the FBI.
(3)*DA Form 4833.* In instances where final action is taken by a magistrate, the Provost Marshal/Director of Emergency Services will complete the DA Form 4833.
(4)*Fingerprint cards.* Provost Marshal Offices/Directorates of Emergency Services will submit fingerprint cards on subjects apprehended as a result of Drug Suppression Team investigations and operations unless the USACIDC is completing the investigative activity for a felony offense. In those cases, the USACIDC will complete the fingerprint report process.
(b)*Procedures.* The following procedures must be followed when submitting criminal history data to CJIS.
(1)Standard FBI fingerprint cards will be used to submit criminal history data to CJIS. FBI Form FD 249, (Suspect Fingerprint Card) will be used when a military member is a suspect or placed under apprehension for an offense listed in Appendix D of AR 190-45. Two FD 249s will be completed. One will be retained in the Provost Marshal/Director of Emergency Services file. The second will be sent to the Director, USACRC and processed with the MPR as prescribed in this subpart. A third set of prints will also be taken on the FBI Department of Justice
(DOJ)Form R-84 (Final Disposition Report). The R-84 requires completion of the disposition portion and entering of the offenses on which the commander took action. Installation Provost Marshals/Directors of Emergency Services are authorized to requisition the fingerprint cards by writing to FBI, J. Edgar Hoover Building, Personnel Division, Printing Unit, Room lB973, 925 Pennsylvania Ave., NW., Washington, DC 20535-0001.
(2)Fingerprint cards will be submitted with the MPR to the Director, USACRC, ATTN: CICR-CR, 6010 6th Street, Fort Belvoir, VA 22060-5585 only when the commander has initiated judicial or nonjudicial action amounting to a Field Grade Article 15 or greater. The Director, CRC will forward the fingerprint card to CJIS. The USACRC is used as the central repository for criminal history information in the Army. They also respond to inquiries from CJIS, local, state and other federal law enforcement agencies.
(3)Submission of the MPR with the FD 249 to USACRC will normally occur upon a commander's initiation of judicial or nonjudicial proceedings against a military member. If final disposition of the proceeding is anticipated within 60 days of command initiation of judicial or nonjudicial proceedings, the FD 249 may be held and final disposition recorded on FD 249. Provost Marshals/Directors of Emergency Services and commanders must make every effort to comply with the 60 days reporting requirement to ensure that the FD Form 249 is used as the primary document to submit criminal history to CJIS. Approval of a discharge in lieu of court-martial will be recorded as a final disposition showing the nature and character of the discharge in unabbreviated English (e.g., resignation in lieu of court-martial; other than honorable discharge) and will also be forwarded to USACRC.
(4)If the commander provides the DA Form 4833 after the 60th day, a letter of transmittal will be prepared by the Provost Marshal/Director of Emergency Services forwarding the FBI
(DOJ)R-84 with the DA Form 4833 to the USACRC within 5 days after disposition. Submission of fingerprint cards shall not be delayed pending appellate actions. Dispositions that are exculpatory (e.g., dismissal of charges, acquittal) shall also be filed.
(5)The procedures for submitting fingerprint cards will remain in effect until automated systems are in place for submission of fingerprints electronically. § 635.26 Procedures for reporting Absence Without Leave
(AWOL)and desertion offenses.
(a)*AWOL reporting procedures.*
(1)The commander will notify the installation Provost Marshal/Director of Emergency Services in writing within 24 hours after a soldier has been reported AWOL.
(2)The Provost Marshal/Director of Emergency Services will initiate an information blotter entry.
(3)If the AWOL soldier surrenders to the parent unit or returns to military control at another installation, the provisions of AR 630-10 will be followed.
(4)On receipt of written notification of the AWOL soldier's return or upon apprehension, the Provost Marshal/Director of Emergency Services will initiate a reference blotter entry indicating the soldier's return to military control and will prepare an initial DA Form 3975, reflecting the total period of unauthorized absence, and the DA Form 4833. Both of these documents will be forwarded through the field grade commander to the unit commander.
(5)The unit commander will report action taken on the DA Form 4833 no later than the assigned suspense date or provide a written memorandum to the Provost Marshal/Director of Emergency Services explaining the delay.
(6)An original DD Form 460 (Provisional Pass) is issued to the soldier to facilitate their return to the parent unit. DD Form 460 will not be required if the Provost Marshal/Director of Emergency Services elects to return the soldier through a different means.
(7)If the soldier is apprehended at or returns to an installation other than his or her parent installation DA Form 3975 and 4833 with a copy of DD Form 460 will be sent to the parent installation Provost Marshal/Director of Emergency Services. The parent installation Provost Marshal/Director of Emergency Services will initiate an information blotter entry reflecting the AWOL soldiers return to military control. A DA Form 3975 and 4833 with an appropriate suspense will be sent through the field grade commander to the unit commander. On return of the completed DA Form 4833 from the unit commander, the original and one copy will be sent to the apprehending Provost Marshal/Director of Emergency Services. The parent installation Provost Marshal/Director of Emergency Services may retain a copy of DA Form 3975 and DA Form 4833.
(b)*Desertion reporting procedures.*
(1)The unit commander must comply with the provisions of AR 630-10 when reporting a soldier as a deserter.
(2)On receipt of the DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), the Provost Marshal/Director of Emergency Services will—
(i)Initiate a DA Form 3975 and a blotter entry reflecting the soldier's desertion status.
(ii)Complete portions of DD Form 553 concerning the soldier's driver's license and vehicle identification. In the remarks section, add other information known about the soldier such as confirmed or suspected drug abuse; history of violent acts; history of escapes; attempted escapes from custody; suicidal tendencies; suspicion of involvement in crimes of violence (for which a charge sheet has been prepared and forwarded); history of unauthorized absences; and any other information useful in the apprehension process or essential to protect the deserter or apprehending authorities.
(iii)An MPR number and a USACRC control number will be assigned to the case and be included in the remarks section of the DD Form 553.
(iv)The DD Form 553 must be returned to the unit commander within 24 hours.
(v)If the deserter surrenders to or is apprehended by the parent installation Provost Marshal/Director of Emergency Services, the Provost Marshal/Director of Emergency Services will telephonically verify the deserter's status with the U.S. Army Deserter Information Point (USADIP). A reference blotter entry will be completed changing the soldier's status from desertion to return to military control.
(vi)If the deserter surrenders to or is apprehended by an installation not the parent installation, the Provost Marshal/Director of Emergency Services will telephonically verify the deserter's status with USADIP. An information military police report will be prepared, utilizing the CRC number from the original military police report prepared by the parent installation. A blotter entry will also be prepared.
(vii)A DD Form 616 (Report of Return of Absentee) will be completed when deserters are apprehended or surrender to military authority. The USACRC control number assigned to the DD Form 553 will be included in the remarks section of the DD Form 616.
(viii)Upon return of the deserter to military control, DA Forms 3975, 2804 (Crime Records Data), fingerprint card and 4833 will be initiated. The MPR number and USACRC control number will be recorded on all four forms.
(ix)The original DA Form 3975 and other pertinent documents will be sent to the Director, USACRC. The DA Form 4833 must include the commander's action taken, to include the Commander, Personnel Control Facility, or other commander who takes action based on the desertion charge. § 635.27 Vehicle Registration System. The Vehicle Registration System
(VRS)is a module within COPS. Use of VRS to register vehicles authorized access to Army installations is mandated in AR 190-5. Within VRS there are various tabs for registration of vehicles authorized access to an installation, to include personal data on the owner of the vehicle. There are also tabs for registering weapons, bicycles, and pets. Information on individuals barred entry to an installation is also maintained within VRS. § 635.28 Procedures for restricted/unrestricted reporting in sexual assault cases. Active duty Soldiers, and Army National Guard and U.S. Army Reserve Soldiers who are subject to military jurisdiction under the UCMJ, can elect either restricted or unrestricted reporting if they are the victim of a sexual assault.
(a)*Unrestricted Reporting.* Unrestricted reporting requires normal law enforcement reporting and investigative procedures.
(b)Restricted reporting requires that law enforcement and criminal investigative organizations not be informed of a victim's identity and not initiate investigative procedures. The victim may allow Sexual Assault Response Coordinators (SARC), health care providers (HCP), or chaplains to collect specific items (clothing, bedding, etc.) that may be later used as evidence, should the victim later decide to report the incident to law enforcement. In sexual assault cases additional forensic evidence may be collected using the “Sexual Assault Evidence Collection Kit,” NSN 6640-01-423-9132, or a suitable substitute (hereafter, “evidence kit”). The evidence kit, other items such as clothing or bedding sheets, and any other articles provided by the HCP, SARC, or chaplain will be stored in the installation Provost Marshal/Directorate of Emergency Services' evidence room separate from other evidence and property. Procedures for handling evidence specified in AR 195-5, Evidence Procedures, will be strictly followed.
(c)Installation Provost Marshals/Directors of Emergency Services will complete an information report in COPS for restricted reporting. Reports will be completed utilizing the offense code from the 6Z series. An entry will be made in the journal when the evidence kit or property (clothing, bedding, etc.) is received. The journal entry will be listed using non-identifying information, such as a generic identifier. An entry will not be made in the blotter. Restricted reporting incidents are not reportable as Serious Incident Reports. Property and the evidence kit will be stored for one year and then scheduled/suspensed for destruction, unless earlier released to investigative authorities in accordance with the victim's decision to pursue unrestricted reporting. Thirty days prior to destruction of the property, a letter will be sent to the SARC by the Provost Marshal/Director of Emergency Services, advising the SARC that the property will be destroyed in thirty days, unless law enforcement personnel are notified by the SARC that the victim has elected unrestricted reporting. Clothing, the evidence kit, or other personal effects may be released to the SARC for return to the victim. The information report will be updated when the evidence is destroyed, or released to investigative authorities.
(d)In the event that information about a sexual assault that was made under restricted reporting is disclosed to the commander from a source independent of the restricted reporting avenues or to law enforcement from other sources, but from a source other than the SARC, HCP, chaplain, or Provost Marshal/Director of Emergency Services, the commander may report the matter to law enforcement and law enforcement remains authorized to initiate its own independent investigation of the matter presented. Additionally, a victim's disclosure of his/her sexual assault to persons outside the protective sphere of the persons covered by the restricted reporting policy may result in an investigation of the allegations. § 635.29 Domestic Violence and Protection Orders.
(a)Responding to incidents of spouse abuse requires a coordinated effort by law enforcement, medical, and social work personnel, to include sharing information and records as permitted by law and regulation. AR 608-18 contains additional information about domestic violence and protective orders.
(b)Appendix C of AR 190-45 includes specific offense codes for domestic violence. All domestic violence incidents will be reported to the local PMO. All reported domestic violence incidents will be entered into MPRS, utilizing DA Form 3975. These codes will be utilized in addition to any other offense code that may be appropriate for an incident. For example, a soldier strikes his or her spouse. When entering the offense data into MPRS, both the offense code for assault (i.e. 5C2B) and the offense code for spouse abuse (from the 5D6 series) will be entered.
(c)A military Protection Order is a written lawful order issued by a commander that orders a soldier to avoid contact with his or her spouse or children. Violations of a military Protection Order must be reported on DA Form 3975, entered into COPS, and entered into NCIC. Violations of a military Protection Order may be violations of Article 92, UCMJ. The commander should provide a written copy of the order within 24 hours of its issuance to the person with whom the member is ordered not to have contact. A copy should be forwarded to the installation Family Advocacy Program Manager (FAPM), the Chief, Social Work Service, and the installation military police.
(d)A civilian Protection Order is an order issued by a judge, magistrate or other authorized civilian official, ordering an individual to avoid contact with his or her spouse or children. Pursuant to the Armed Forces Domestic Security Act a civilian protection order has the same force and effect on a military installation as such order has within the jurisdiction of the court that issued the order. Violations of a civilian Protection Order must be reported on DA Form 3975, entered into COPS, and entered into NCIC. § 635.30 Establishing domestic violence Memoranda of Understanding.
(a)Coordination between military law enforcement personnel and local civilian law enforcement personnel is essential to improve information sharing, especially concerning domestic violence investigations, arrests, and prosecutions involving military personnel. Provost Marshals/Directors of Emergency Services or other law enforcement officials shall seek to establish formal Memoranda of Understanding
(MOU)with their civilian counterparts to establish or improve the flow of information between their agencies, especially in instances of domestic violence involving military personnel. MOUs can be used to clarify jurisdictional issues for the investigation of incidents, to define the mechanism whereby local law enforcement reports involving active duty service members will be forwarded to the appropriate installation law enforcement office, to encourage the local law enforcement agency to refer victims of domestic violence to the installation Family Advocacy office or victim advocate, and to foster cooperation and collaboration between the installation law enforcement agency and local civilian agencies.
(b)MOUs should address the following issues:
(1)A general statement of the purpose of the MOU.
(2)An explanation of jurisdictional issues that affect respective responsibilities to and investigating incidents occurring on and off the installation. This section should also address jurisdictional issues when a civilian order of protection is violated on military property (see 10 U.S.C. 1561a).
(3)Procedures for responding to domestic violence incidents that occur on the installation involving a civilian alleged offender.
(4)Procedures for transmitting incident/investigation reports and other law enforcement information on domestic violence involving active duty service members from local civilian law enforcement agencies to the installation law enforcement office.
(5)Procedures for transmitting civilian protection orders
(CPOs)issued by civilian courts or magistrates involving active duty service members from local law enforcement agencies to the installation law enforcement office.
(6)Designation of the title of the installation law enforcement recipient of such information from the local law enforcement agency.
(7)Procedures for transmitting military protection orders
(MPOs)from the installation law enforcement office to the local civilian law enforcement agency with jurisdiction over the area in which the service member resides.
(8)Designation of the title of the local law enforcement agency recipient of domestic violence and CPO information from the installation law enforcement agency.
(9)Respective responsibilities for providing information to domestic violence victims regarding installation resources when either the victim or the alleged offender is an active duty service member.
(10)Sharing of information and facilities during the course of an investigation in accordance with the Privacy Act of 1974 (see 5 U.S.C. 552a(b)(7)).
(11)Regular meetings between the local civilian law enforcement agency and the installation law enforcement office to review cases and MOU procedures. § 635.31 Lost, abandoned, or unclaimed property. This is personal property that comes into the possession, custody, or control of the Army and is unclaimed by the owner. Property is considered to be abandoned only after diligent effort has been made to determine and locate its owner, the heir, next of kin, or legal representative. A military person who is ordered overseas and is unable to dispose of their personal property should immediately notify their chain-of-command. The commander will appoint a board to rule on the disposition of the property. If a law enforcement agency takes custody of the property it will be tagged and a record made as shown in paragraph
(a)of this section. A report will be made to the installation commander who will take action in accordance with DOD 4160.21-M, chapter 4, paragraph 40, Defense Materiel Disposition Manual. Pending board action under DOD 4160.21-M, the law enforcement agency having physical custody is responsible for the safekeeping of seized property. The following procedures should be used:
(a)Property will be tagged using DA Form 4002 (Evidence/Property Tag) or clearly identified by other means, inventoried, and made a matter of record. These records are kept by the custodian of the property.
(b)Lost, abandoned, or unclaimed property will be kept in a room or container separate from one used to store property held as evidence. Records or logs of property not held as evidence will be separated from those pertaining to evidence. However, all property will be tagged, accounted for, and receipted for in a similar manner as evidence.
(c)Property that has been properly identified through board action under DOD 4160.21-M as having an owner will be segregated and tagged with the name of that person.
(d)Abandoned or unclaimed property will be held until its status can be determined. In many instances, lost property can be returned to the owner upon presentation of proof of ownership.
(e)In all cases, a receipt should be obtained at time of release. Subpart D—Army Quarterly Trends and Analysis Report § 635.32 General.
(a)This subpart prescribes policies and procedures for the coordination and standardization of crime statistics reporting with HQDA. Crime statistical reports and trends provided to HQDA and other agencies and those related to special interests inquiries, the media, and the public must reflect uniformity in terminology, methods of presentation, and statistical portrayal to preclude misinterpretation of information.
(b)Any report containing Army-wide aggregate crime data or statistics addressed to the Secretary of the Army, Chief of Staff of the Army, or Vice Chief of Staff of the Army will be coordinated and cleared with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). Correspondence and reports will be coordinated with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) prior to release to any agency, activity, or individual.
(c)HQDA staff agencies ACOM, ASCC and DRU authorized by regulation or statute to conduct independent investigations, audits, analyses, or inquiries need not coordinate reported information with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) unless the information contains crime data for the Army as a whole. For example, reports submitted by USACIDC containing only USACIDC investigative data need not be coordinated with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). § 635.33 Crime rate reporting.
(a)The USACRC is the Army's collection point and analytic center for all Army aggregate crime data. Requests for Army-wide crime data reports will be forwarded through HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) to the Director, USACRC. Replies will be routed back through HQDA Office of the Provost Marshal General (DAPM-MPD-LE) where they will be coordinated, as appropriate, prior to release. Requests for USACIDC, ACOM, ASCC, DRU, or subordinate command specific crime data reports can be made directly to the specific command. Replies need not be coordinated with HQDA.
(b)Requests for Army aggregate crime reports are limited to data collected and accessible through the Automated Criminal Investigation and Intelligence System
(ACI2)and COPS.
(c)Routine collection of ACOM, ASCC or DRU crime data, for use in Army-wide database, will be limited to that data collected by the above systems. ACOM, ASCC and DRU may determine internal data collection requirements.
(d)All Provost Marshal/Director of Emergency Services crime data will be recorded and forwarded by installations through ACOM, ASCC or DRU using the COPS system.
(e)In support of the Secretary of the Army and the Office of the Chief of Staff of the Army, the Chief, Operations Division, Office of the Provost Marshal General, will determine the requirements for routine publication of Army aggregate crime statistics.
(f)Normally, raw data will not be released without analysis on routine or non-routine requests. Comparison of ACOM, ASCC or DRU crime data is generally not reported and should be avoided. General categories of CONUS or OCONUS are appropriate. Subpart E—Victim and Witness Assistance Procedures § 635.34 General.
(a)This subpart implements procedures to provide assistance to victims and witnesses of crimes that take place on Army installations and activities. The procedures in this subpart apply to—
(1)Every victim and witness.
(2)Violations of the UCMJ, including crimes assimilated under the Assimilative Crimes Act reported to or investigated by military police.
(3)Foreign nationals employed or visiting on an Army installation OCONUS.
(b)Provost Marshal/Director of Emergency Services personnel should refer to AR 27-10, Chapter 18, for additional policy guidance on the Army Victim/Witness Program. § 635.35 Procedures.
(a)As required by Federal law, Army personnel involved in the detection, investigation, and prosecution of crimes must ensure that victims and witnesses rights are protected. Victim's rights include—
(1)The right to be treated with fairness, dignity, and a respect for privacy.
(2)The right to be reasonably protected from the accused offender.
(3)The right to be notified of court proceedings.
(4)The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial, or for other good cause.
(5)The right to confer with the attorney for the Government in the case.
(6)The right to restitution, if appropriate.
(7)The right to information regarding conviction, sentencing, imprisonment, and release of the offender from custody.
(b)In keeping with the requirements listed in paragraph
(a)of this section, Provost Marshals/Directors of Emergency Services must ensure that—
(1)All law enforcement personnel are provided copies of DD Form 2701 (Initial Information for Victims and Witnesses of Crime).
(2)A victim witness coordinator is appointed in writing.
(3)Statistics are collected and reported into COPS.
(4)Coordination with the installation staff judge advocate victim witness coordinator occurs to ensure that individuals are properly referred for information on restitution, administrative, and judicial proceedings.
(5)Coordination with installation Family Advocacy Program's Victim Advocate occurs to support victims of spouse abuse. Victim Advocacy services include crisis intervention, assistance in securing medical treatment for injuries, information on legal rights and proceedings, and referral to military and civilian shelters and other resources available to victims. § 635.36 Notification.
(a)In addition to providing crime victims and witnesses a DD Form 2701, law enforcement personnel must ensure that individuals are notified about—
(1)Available military and civilian emergency medical care.
(2)Social services, when necessary.
(3)Procedures to contact the staff judge advocate victim/witness liaison office for additional assistance.
(b)Investigating law enforcement personnel, such as military police investigators—
(1)Must ensure that victims and witnesses have been offered a DD Form 2701. If not, investigating personnel will give the individual a copy.
(2)In coordination with the Provost Marshal/Director of Emergency Services victim witness coordinator, provide status on investigation of the crime to the extent that releasing such information does not jeopardize the investigation.
(3)Will, if requested, inform all victims and witnesses of the apprehension of a suspected offender. § 635.37 Statistical reporting requirements.
(a)DOD policies on victim witness assistance require reporting of statistics on the number of individuals who are notified of their rights. The DA Form 3975 provides for the collection of statistical information.
(b)The COPS system supports automated reporting of statistics. HQDA, Office of the Provost Marshal General (DAPM-PD-LE) as the program manager may require periodic reports to meet unique requests for information.
(c)It is possible that a victim or witness may initially decline a DD Form 2701. As the case progresses, the individual may request information. If a case is still open in the Provost Marshal Office/Directorate of Emergency Services, the Provost Marshal/Director of Emergency Services victim witness coordinator shall provide the DA Form 2701 to the individual and update the records. Once the case is referred to the staff judge advocate or law enforcement activity ceases, COPS will not be updated without prior coordination with the installation Staff Judge Advocate office. [FR Doc. E7-10080 Filed 5-23-07; 8:45 am] BILLING CODE 3710-08-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2006-0985-200625; FRL-8318-1] Approval and Promulgation of Implementation Plans Georgia: Enhanced Inspection and Maintenance Plan AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving two revisions to the Georgia State Implementation Plan (SIP), submitted by the Georgia Department of Natural Resources (GA DNR), through the Georgia Environmental Protection Division (GA EPD), on July 25, 2006, and January 25, 2007. The revisions include modifications to Georgia's Air Quality Rules found at Chapter 391-3-20, pertaining to rules for Enhanced Inspection and Maintenance (I/M). Enhanced I/M was required for 1-hour nonattainment areas classified as serious and above, under the CAA as amended in 1990. The I/M program is a way to ensure that vehicles are maintained properly and verify that the emission control system is operating correctly, in order to reduce vehicle-related emissions. This action is being taken pursuant to section 110 of the Clean Air Act (CAA). DATES: This direct final rule is effective July 23, 2007 without further notice, unless EPA receives adverse comment by June 25, 2007. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number, “EPA-R04-OAR-2006-0985,” by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: harder.stacy@epa.gov.* 3. *Fax:* 404-562-9019. 4. *Mail:* “EPA-R04-OAR-2006-0985,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. *Instructions:* Direct your comments to Docket ID Number, “EPA-R04-OAR-2006-0985.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov index.* Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9042. Ms. Harder can also be reached via electronic mail at *harder.stacy@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. EPA's Action II. Analysis of the State's Submittal III. Final Action IV. Statutory and Executive Order Reviews I. EPA's Action EPA is approving two SIP revisions submitted by the State of Georgia, through the GA EPD, on July 25, 2006, and January 25, 2007, pertaining to rules for I/M. These revisions became State effective on January 10, 2007. The proposed revisions in the July 25, 2006, submittal include changes made by the State of Georgia to its Air Quality Rules, found at Chapters 391-3-20-.01, .02, .03, .04, .05, .07, .08 , .09, .10, .11, .12, .13, .15, .16, .17(1), .17(2)(a)1, .17(2)(b), .17(e), .18, .19, .20, .21, and .22. The proposed revisions in the January 25, 2007, submittal include changes to Chapters 391-3-20-.01(m), and 391-3-20-.17(2)(a)1. II. Analysis of the State's Submittal July 25, 2006 Submittal Rule 391-3-20, Inspection and Maintenance, is being revised for the purpose of removing outdated requirements, updating portions for consistency with the CAA, enhancing enforcement capabilities, and performing overall housekeeping edits associated with such an extensive rule revision. Additionally, clarifying language is being added to the rule, which includes clarification of applicability and of inspector qualifications, the establishment of common terms, and the removal of outdated language. Finally, the “Waivers” section of this rule, is being revised to make the annual adjustment of the repair waiver limit using the consumer price index data as published by the Federal Bureau of Labor Statistics. For the test year 2006, the waiver limit shall be $710.00 of qualifying repairs. January 25, 2007 Submittal Rule 391-3-20-.01 “Definitions,” is being revised for the purpose of incorporating the most recent version of the GA DNR motor vehicle emission I/M policy (“Enforcement Policy”), dated July 28, 2006. Additionally, the “Waivers” section of this rule (391-3-20-.17((2)(a)1), is being revised to make the annual adjustment of the repair waiver limit using the consumer price index data as published by the Federal Bureau of Labor Statistics. For the test year 2007, the waiver limit shall be $738.00 of qualifying repairs. For vehicles which otherwise qualify for waivers during the 2006 test year, the waiver limit shall be $710.00 of qualifying repairs. III. Final Action EPA is taking direct final action to approve the aforementioned revisions, specifically, Chapters 391-3-20-.01, .02, .03, .04, .05, .07, .08 , .09, .10, .11, .12, .13, .15, .16, .17(1), .17(2)(a)1, .17(2)(b), .17(e), .18, .19, .20, .21, and .22 into the Georgia SIP. These revisions were submitted by GA EPD on July 25, 2006, and January 25, 2007. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective July 23, 2007 without further notice unless the Agency receives adverse comments by June 25, 2007. If EPA receives such comments, EPA will then publish a document withdrawing the direct final rule and informing the public that such rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on July 23, 2007 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: May 14, 2007. Russell L. Wright, Jr., Acting Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart L—Georgia 2. Section 52.570(c) is amended by revising the entry for “391-3-20” to read as follows: § 52.570 Identification of plan.
(c)* * * EPA-Approved Georgia Regulations State citation Title/subject State effective date EPA approval date Explanation * * * * * * * 391-3-20 Enhanced Inspection and Maintenance 01/10/2007 05/24/2007 [Insert citation of publication] * * * * * * * [FR Doc. E7-10057 Filed 5-23-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF ENERGY 48 CFR Part 970 RIN 1991-AB67 Acquisition Regulation: Implementation of DOE's Cooperative Audit Strategy for Its Management and Operating Contracts AGENCY: Department of Energy. ACTION: Final rule. SUMMARY: The Department of Energy
(DOE)is amending its Acquisition Regulation
(DEAR)by making minor amendments to existing contractor internal audit requirements, through the use of the Cooperative Audit Strategy. DATES: *Effective Date:* June 25, 2007. FOR FURTHER INFORMATION CONTACT: Helen Oxberger, U.S. Department of Energy, MA-61, 1000 Independence Avenue, SW., Washington, DC 20585, telephone
(202)287-1332 or submit electronically to *helen.oxberger@hq.doe.gov.* SUPPLEMENTARY INFORMATION: I. Background II. Discussion of Public Comments III. Section-by-Section Analysis IV. Procedural Requirements A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act D. Review Under the National Environmental Policy Act E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under the Treasury and General Government Appropriations Act, 2001 J. Review Under Executive Order 13211 K. Review Under the Small Business Regulatory Enforcement Fairness Act of 1996 L. Approval by the Office of the Secretary I. Background The Department contracts for the management and operation of its Government-owned or -controlled research, development, special production, or testing facilities through the use of management and operating (M&O) contracts. The Department historically expends approximately 73 percent of its annual appropriations through these M&O prime contracts. Thus, it is imperative for the Department to develop approaches which permit oversight of M&O contractor expenditures in order for the Department to satisfy its oversight responsibility and to ensure that DOE funds are expended on allowable costs. The creation and maintenance of rigorous business, financial, and accounting systems by contractors are crucial to assuring the integrity and reliability of the cost data used by the DOE's Chief Financial Officer (CFO), the Inspector General (IG), and contracting officers (COs). To ensure the reliability of these systems, DOE requires some of its contractors to maintain an internal audit activity, that is, an internal audit organization that is responsible for:
(i)Performing operational and financial audits including incurred cost audits, and
(ii)assessing the adequacy of management control systems. The Cooperative Audit Strategy is a program that the IG, partnering with contractors' internal audit groups, the CFO, and the Office of DOE Procurement and Assistance Management, developed and implemented in October 1992 to maximize the overall audit coverage of M&O contractors' operations and to fulfill the IG's responsibility for auditing the costs incurred by major facilities contractors. The Cooperative Audit Strategy enhances DOE's efficient use of available audit resources by allowing the IG to rely on the work of contractors' internal audit organizations. The IG has adopted the Cooperative Audit Strategy at most major DOE facilities operated by contractors. The success of the Cooperative Audit Strategy depends on the IG and contractor internal audit groups working closely with DOE. The contractor internal audit groups are committed to a continuing evaluation of the Cooperative Audit Strategy process and have established the Steering Committee for Quality Auditing to address current issues and implement on-going improvements. DOE published a Notice of Proposed Rulemaking
(NOPR)in the **Federal Register** on May 8, 2006 (71 FR 26723). The NOPR proposed to amend two Department of Energy Acquisition Regulation
(DEAR)clauses to more effectively implement DOE's Cooperative Audit Strategy. The proposed changes would eliminate Alternate II of DEAR clause 970.5232-3, and revise and expand the contract clause to require the use of the DOE's Cooperative Audit Strategy in all M&O contracts. Currently, the Cooperative Audit Strategy is implemented under an alternate clause (Alternate II) in the Accounts, records, and inspection contract clause at 970.5232-3. Because Alternate II is being deleted, DOE has deleted the alternate prescription for the alternate at 970.3270 (a)(2)(ii). In addition, the Department proposed to amend the DEAR clause 970.5203-1 entitled Management Controls by adding a sentence requiring the contractor to submit audit reports. Four commenters responded to our May 8, 2006 NOPR. All the comments were directed toward the proposed Section 970.5232-3, paragraph
(i)Internal Audit and paragraph
(j)Remedies. Section II of this preamble presents a summary of the comments by subject, and the responses to the comments. II. Discussion of Public Comments Comments on Internal Audit Requirements *Comment:* Four commenters made remarks on paragraph
(i)of proposed Section 970.5232-3. One commenter stated that it believes paragraph
(i)requirements of the DEAR clause 970.5232-3 for submittal of three reports related to the contractor's internal audit function amount to DOE's significant involvement in the contractor's day-to-day internal audit function operations. That commenter believes that proposed paragraphs
(i)(1),
(i)(2), and
(3)contradict the Cooperative Audit Strategy objectives and may actually, per paragraph
(i)(4), create a structure where the contractors' internal audit function may appear to report to the DOE contracting officer. The commenter argues that the proposed sections would permit the contracting officer to make unilateral decisions on the new requirements, the design plan for internal audits, the annual report, and the annual internal audits, thereby making it difficult for the contractor to manage and control the contractor's own assurance system. One commenter believes that the proposed paragraph
(i)requirements contradict an already existing clause in its contract with DOE, which states that the National Nuclear Security Administration
(NNSA)will provide direction as to what NNSA wants and empowers the contractor to determine how the program is executed with the contractor accountable for its performance. One commenter fully supports DOE's Cooperative Audit Strategy and the Department's efforts to continue an effective and efficient independent audit function at the M&O contractor facilities to ensure that internal audits are conducted reliably. *Response:* As stated in the proposed rule, this rule will be used only in DOE's M&O contracts, involving annual reconciliation of expenditures using the DOE's Statement of Cost Incurred and Claimed
(SCIC)process. The SCIC process is used in contracts involving well over $1 billion dollars in annual expenditures by the covered contractor. Those same contractors maintain a special bank account, for reasons of benefit to DOE and the U.S. Treasury, under which those contractors pay contractual obligations directly with DOE funds. The SCIC process would be meaningless without a systematic process to assess the adequacy of the contractor's system of financial controls. It is imperative for DOE to maintain processes which permit oversight of M&O contractor expenditures in order for DOE to accomplish its oversight responsibilities and to require the contractor to have an independent audit function capable of auditing the contractor's system of the financial controls needed to assure the proper use of the funds. The purpose of the reports prescribed in paragraph
(i)of the clause is to provide DOE's CFO, IG, and COs with confidence in the contractor's system of financial controls. DOE currently receives annual reports and annual plans from the DOE M&O contractor for two of the three required crucial reports. The third report, specified by the final rule as a requirement of the Internal Audit Implementation Plan, is critical to the Government's assurance and confidence in the M&O contractor's financial controls system. By providing the Internal Audit Implementation Plan, the M&O contractor will provide DOE with information about the operation of the contractor's internal audit function, which is important in establishing DOE's ability to rely on the contractor's internal audit organization to perform operational and financial audits, including incurred cost audits, and assessing the adequacy of the contractor's management control systems. Current policy already exists for contracting officers to be empowered and operate under statutory mandates permitting them to make unilateral decisions, such as a reasonableness determination that is a common practice in Federal contract administration. The contracting officers must have the flexibility, as compelled by their authority, to make prudent decisions that are fair, reasonable and supportable. DOE believes that this rule provides the necessary framework for a systematic process for use by its M&O contractors in the organization and operation of their internal audit function. The Government needs reasonable assurance that the contractor has an effective internal control structure for accountability and control over its funds. The Government also needs reasonable assurance that the contractor is complying with Federal laws and regulations and the terms and conditions of the contract related to the use of funds. The changes made by this final rule will maximize the overall audit coverage of the contractor's operations and fulfill the IG's responsibility for auditing the costs incurred by all M&O contractors. The changes made by the final rule will better ensure DOE's efficient use of available audit resources by allowing the IG to rely on the work of the M&O contractor's internal audit organization. One commenter separately made a comment relating to contract provisions it specifically negotiated and Chapter 70.4 of the Acquisition Guide, respectively. This comment is outside the scope of this rule. Comments on Remedies Requirements *Comment:* Three commenters made comments opposing the stated remedies of paragraph
(j)of proposed § 970.5232-3. That paragraph would allow the DOE contracting officer unilaterally to suspend or revoke, in whole or in part, access to the Special Banking Financial Institution Accounts. The commenters asserted that the affected contractors would be subjected to greater risk, without any commensurate increase in associated fee, under such a contract. The commenters also stated that if the M&O contractor's use of the special financial institution account is revoked, there are no criteria for providing alternative compensation to the contractor for use of its working capital. Finally, the commenters contend there is no requirement for the use of this special financial institution account to be restored without undue delay. One commenter stated that paragraph
(j)of the proposed § 970.5232-3 is not consistent with Federal acquisition policy, as expressed in the Federal Acquisition Regulation
(FAR)31.201-2 *Determining allowability.* *Response:* DOE disagrees and has not altered the final rule in response to the comments relating to paragraph (j). As explained in the preamble of the proposed rule (71 FR at 26724), DOE is amending two DEAR clauses to more effectively implement DOE's Cooperative Audit Strategy. These changes provide DOE insight into the use of the M&O contractor's SCIC for reconciliation of allowable costs, thus enhancing DOE's confidence in the integrity of its financial control systems. DOE proposed paragraph
(j)to expressly include risk mitigation of the special financial institution accounts. The existing system of payment to the DOE's M&O contractor under the Cooperative Audit Strategy relies heavily on the contractor's internal audit function and system of financial controls. That reliance introduces risks. DOE believes that if a DOE contracting officer reasonably loses confidence in an M&O contractor's financial system of controls, he or she must be able to react immediately to prevent additional expenditures under the special bank account. This authority would be used only as a last resort. The contracting officer's authority to stop payment of funds is not new and he or she must have the ability to restrict access to the funds as a prescribed remedy in dealing with a failure of financial controls. This is a contract financial control issue, not a cost allowability issue. We believe the express statement of these remedies in paragraph
(j)will enhance DOE's fulfillment of its fiduciary responsibility by minimizing risk to the Government as a result of a failure of the contractor's financial control system that could impact the SCIC and special bank accounts. Revisions Incorporated Into This Final Rule *Comment:* One commenter agrees with the proposal to use outside auditors to perform peer reviews of the work of a contractor's internal audit organization. The commenter stated that it would solicit the “concurrence of the DOE Contracting Officer before engaging any outside audit firm.” The commenter believes that a review performed by such a third party would be no less effective, and perhaps more independent, than a review conducted by another M&O contractor's internal audit organization. The commenter fully supports the Cooperative Audit Strategy but suggests revising the language in paragraph
(viii)of proposed section 970.5232-3, regarding the Internal Audit Implementation Design, to permit the use of an independent audit organization approved by DOE. *Response:* We have adopted the comment and expanded the language to read: “The schedule for peer review of internal audits by other contractor internal audit organizations, or other independent third party audit entities approved by the DOE Contracting Officer.” III. Section-by-Section Analysis DOE is amending the DEAR as follows: 1. Section 970.3270, Standard financial management clause, is amended by deleting the designator “i” from paragraph (a)(2)(i) and deleting paragraph (a)(2)(ii). 2. Section 970.5203-1, Management controls, paragraph (a)(4) is amended by adding a sentence which requires the contractor to annually, or at other times as directed by the contracting officer, provide copies of reports on the status of audit recommendations. 3. Section 970.5232-3, Accounts, records, and inspection, is amended by deleting Alternate II and by adding new paragraphs
(i)and (j). IV. Procedural Requirements A. Review Under Executive Order 12866 This regulatory action has been determined not to be a significant regulatory action under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993). Accordingly, this action is not subject to review under the Executive Order by the Office of Information and Regulatory Affairs
(OIRA)within the Office of Management and Budget. B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking” (67 FR 53461, August 16, 2002), DOE published procedures and policies to ensure that the potential impacts of its draft rules on small entities are properly considered during the rulemaking process (68 FR 7990, February 19, 2003), and has made them available on the Office of General Counsel's Web site: *http://www.gc.doe.gov.* DOE has reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The final rule would amend procurement policies that apply only to DOE M&O contracts and would impact only DOE's M&O contractors, none of whom are small entities. This rule would not have a significant economic impact on small entities. On the basis of the foregoing, DOE certifies that the final rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. C. Review Under the Paperwork Reduction Act Existing burdens associated with the collection of certain contractor audit data have been previously cleared under OMB control number 1910-4100, which expires on April 30, 2008. The Department has concluded that the additional information collection burden resulting from this regulatory action would apply to less than ten persons in any 12-month period and therefore is less than the threshold for submission to the Office of Management and Budget
(OMB)under 5 CFR 1320.3(c). Therefore, DOE has not submitted this action to OMB. D. Review Under the National Environmental Policy Act DOE has concluded that promulgation of this final rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ). Specifically, this final rule deals only with agency procedures, and therefore, is covered under the Categorical Exclusion in paragraph A6 of Appendix A to Subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required. E. Review Under Executive Order 13132 Executive Order 13132, “Federalism” (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. 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. The Executive Order also requires agencies to have an accountability process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. F. 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 Federal agencies the general duty to adhere to the following requirements:
(1)Eliminate drafting errors and ambiguity;
(2)write regulations to minimize litigation; and
(3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect, if any;
(2)clearly specifies any effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct while promoting simplification and burden reduction;
(4)specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988. G. Review Under the Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector. The Department has determined that today's regulatory action does not impose a Federal mandate on State, local or tribal governments or on the private sector. H. Review Under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. I. Review Under the 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 guideline issued by 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 notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. J. Review Under Executive Order 13211 Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that:
(1)Is a significant regulatory action under Executive Order 12866, or any successor order; and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy, or
(3)is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Review Under the Small Business Regulatory Enforcement Fairness Act of 1996 As required by 5 U.S.C. 801, DOE will report to Congress promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2). L. Approval by the Office of the Secretary The Office of the Secretary of Energy has approved issuance of this rule. List of Subjects in 48 CFR Part 970 Government procurement. Issued in Washington, DC, on May 17, 2007. Edward R. Simpson, Director, Office of Procurement and Assistance Management, Department of Energy. David O. Boyd, Director, Office of Acquisition and Supply Management, National Nuclear Security Administration. For the reasons stated in the preamble, chapter 9 of title 48 of the Code of Federal Regulations is amended as set forth below: PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS 1. The authority citation for part 970 continues to read as follows: Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101 *et seq.* ; 41 U.S.C. 418b; 50 U.S.C. 2401 *et seq.* 970.3270 [Amended] 2. Section 970.3270 is amended by removing the paragragh designation “(i)” from paragraph (a)(2)(i) and removing paragraph (a)(2)(ii). 3. Section 970.5203-1 is amended by adding a sentence to the end of paragraph (a)(4). 970.5203-1 Management controls.
(a)* * *
(4)* * * Annually, or at other intervals directed by the contracting officer, the contractor shall supply to the contracting officer copies of the reports reflecting the status of recommendations resulting from management audits performed by its internal audit activity and any other audit organization. This requirement may be satisfied in part by the reports required under paragraph
(i)of 970.5232-3, Accounts, records, and inspection. 4. Section 970.5232-3 is amended by: a. Revising the date of the clause; b. Adding new paragraph
(i)and
(j)before the “(End of clause)”; and c. Removing Alternate II (including paragraph (i)). The additions and revisions, read as follows: 970.5232-3 Accounts, records, and inspection. * * * Accounts, Records, and Inspection (JUNE 2007)
(i)*Internal audit.* The contractor agrees to design and maintain an internal audit plan and an internal audit organization.
(1)Upon contract award, the exercise of any contract option, or the extension of the contract, the contractor must submit to the contracting officer for approval an Internal Audit Implementation Design to include the overall strategy for internal audits. The Audit Implementation Design must describe:
(i)The internal audit organization's placement within the contractor's organization and its reporting requirements;
(ii)The audit organization's size and the experience and educational standards of its staff;
(iii)The audit organization's relationship to the corporate entities of the contractor;
(iv)The standards to be used in conducting the internal audits;
(v)The overall internal audit strategy of this contract, considering particularly the method of auditing costs incurred in the performance of the contract;
(vi)The intended use of external audit resources;
(vii)The plan for audit of subcontracts, both pre-award and post-award; and
(viii)The schedule for peer review of internal audits by other contractor internal audit organizations, or other independent third party audit entities approved by the DOE contracting officer.
(2)By each January 31 of the contract performance period, the contractor must submit an annual audit report, providing a summary of the audit activities undertaken during the previous fiscal year. That report shall reflect the results of the internal audits during the previous fiscal year and the actions to be taken to resolve weaknesses identified in the contractor's system of business, financial, or management controls.
(3)By each June 30 of the contract performance period, the contractor must submit to the contracting officer an annual audit plan for the activities to be undertaken by the internal audit organization during the next fiscal year that is designed to test the costs incurred and contractor management systems described in the internal audit design.
(4)The contracting officer may require revisions to documents submitted under paragraphs (i)(1), (i)(2), and (i)(3) of this clause, including the design plan for the internal audits, the annual report, and the annual internal audits.
(j)*Remedies.* If at any time during contract performance, the contracting officer determines that unallowable costs were claimed by the contractor to the extent of making the contractor's management controls suspect, or the contractor's management systems that validate costs incurred and claimed suspect, the contracting officer may, in his or her sole discretion, require the contractor to cease using the special financial institution account in whole or with regard to specified accounts, requiring reimbursable costs to be claimed by periodic vouchering. In addition, the contracting officer, where he or she deems it appropriate, may: Impose a penalty under 970.5242-1, Penalties for unallowable costs; require a refund; reduce the contractor's otherwise earned fee; and take such other action as authorized in law, regulation, or this contract. (End of Clause) * * * [FR Doc. E7-10037 Filed 5-23-07; 8:45 am] BILLING CODE 6450-01-P 72 100 Thursday, May 24, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28258; Directorate Identifier 2006-NM-251-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330 and A340 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed 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: During a BCM (back-up control module) retrofit campaign, one resistor manufactured by SRT (Siegert) was found with an abnormal resistance drift. * * * When the aircraft is in control back up configuration (considered to be an extremely remote case), an incorrect value on these resistors may cause degradation of the BCM piloting laws, potentially leading to erratic motion of the rudder and to possible impact on the Dutch Roll [uncommanded coupling of airplane roll and yaw motions]. The unsafe condition is erratic motion of the rudder could result in reduced controllability of the airplane due to dutch roll characteristics. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 25, 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 proposed 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 Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2797; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: 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 proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28258; Directorate Identifier 2006-NM-251-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Airworthiness Directive 2006-0313, dated October 13, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: During a BCM (back-up control module) retrofit campaign, one resistor manufactured by SRT (Siegert) was found with an abnormal resistance drift. This resistor was subject to humidity absorption and then to oxidation, which leads to increase the resistor value. This oxidation has been determined coming from a production quality issue. When the aircraft is in control back up configuration (considered to be an extremely remote case), an incorrect value on these resistors may cause degradation of the BCM piloting laws, potentially leading to erratic motion of the rudder and to possible impact on the Dutch Roll [uncommanded coupling of airplane roll and yaw motions]. In order to detect a degradation of the BCM piloting laws due to resistor oxidation, this Airworthiness Directive
(AD)mandates a repetitive ground operational test of the BCM fitted with resistor manufactured by SRT until accomplishment of terminating action (installation of BCM fitted with resistors manufactured by VISHAY). You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued the service bulletins listed below. The actions described in the service information are intended to correct the unsafe condition identified in the MCAI. • Airbus Service Bulletin A330-27-3142, dated August 17, 2006. • Airbus Service Bulletin A330-27-3147, including Appendix 01, dated August 4, 2006. • Airbus Service Bulletin A340-27-4142, dated August 17, 2006. • Airbus Service Bulletin A340-27-4147, including Appendix 01, dated August 4, 2006. • Airbus Service Bulletin A340-27-5036, dated August 17, 2006. • Airbus Service Bulletin A340-27-5038, including Appendix 01, dated August 4, 2006. FAA's Determination and Requirements of This Proposed 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 proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. 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 proposed 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 proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 20 products of U.S. registry. We also estimate that it would take about 15 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would 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 costs. 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 the proposed AD on U.S. operators to be $24,000, or $1,200 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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: **Airbus:** Docket No. FAA-2007-28258; Directorate Identifier 2006-NM-251-AD. Comments Due Date
(a)We must receive comments by June 25, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to airplanes specified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD:
(1)Model A330 airplanes, certificated in any category, with Modification 49144 installed in production, but without Production Modification 55185 or Airbus Service Bulletin A330-27-3142 installed in-service.
(2)Model A340-200 and -300 series airplanes, certificated in any category, with Modification 49144 installed in production, but without Production Modification 55185 or Airbus Service Bulletin A340-27-4142 installed in-service.
(3)Model A340-500 and -600 series airplanes, certificated in any category, without Production Modification 55186 or Airbus Service Bulletin A340-27-5036 installed in-service. Subject
(d)Flight Controls. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: During a BCM (back-up control module) retrofit campaign, one resistor manufactured by SRT (Siegert) was found with an abnormal resistance drift. This resistor was subject to humidity absorption and then to oxidation, which leads to increase the resistor value. This oxidation has been determined coming from a production quality issue. When the aircraft is in control back up configuration (considered to be an extremely remote case), an incorrect value on these resistors may cause degradation of the BCM piloting laws, potentially leading to erratic motion of the rudder and to possible impact on the Dutch Roll [uncommanded coupling of airplane roll and yaw motions]. In order to detect a degradation of the BCM piloting laws due to resistor oxidation, this Airworthiness Directive
(AD)mandates a repetitive ground operational test of the BCM fitted with resistor manufactured by SRT until accomplishment of terminating action (installation of BCM fitted with resistors manufactured by VISHAY). The unsafe condition is erratic motion of the rudder and could result in reduced controllability of the airplane due to dutch roll characteristics. Actions and Compliance
(f)Unless already done, do the following actions.
(1)Within 900 flight hours after the effective date of this AD, and thereafter at intervals not to exceed 900 flight hours, perform an operational test of the BCM and back-up power supply
(BPS)by BITE (built in test equipment), and as applicable, apply the corrective actions, in accordance with instructions defined in Airbus Service Bulletin A330-27-3147, dated August 4, 2006; Airbus Service Bulletin A340-27-4147, dated August 4, 2006; or Airbus Service Bulletin A340-27-5038, dated August 4, 2006; as applicable. Replacement of affected BCM in accordance with Airbus Service Bulletin A330-27-3142, dated August 17, 2006; A340-27-4142, dated August 17, 2006; or A340-27-5036, dated August 17, 2006; cancels the mandatory repetitive operational test.
(2)Within 26 months after the effective date of this AD, install modified BCM in accordance with instructions given in Airbus Service Bulletin A330-27-3142, dated August 17, 2006; Airbus Service Bulletin A340-27-4142, dated August 17, 2006; or Airbus Service Bulletin A340-27-5036, dated August 17, 2006; as applicable. 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 Backman, Aerospace Engineer; 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2797; 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.
(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, 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 Airworthiness Directive 2006-0313, dated October 13, 2006; and the service bulletins listed in Table 1 for related information. Table 1.—Airbus Service Bulletins Airbus Service Bulletin— Dated— A330-27-3123 December 13, 2004. A330-27-3142 August 17, 2006. A330-27-3147, including Appendix 01 August 4, 2006. A340-27-4124 December 13, 2004. A340-27-4142 August 17, 2006. A340-27-4147, including Appendix 01 August 4, 2006. A340-27-5036 August 17, 2006. A340-27-5038, including Appendix 01 August 4, 2006. Issued in Renton, Washington, on May 15, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-10043 Filed 5-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28257; Directorate Identifier 2007-NM-034-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-100, -200B, -200C, and -200F Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 747-100, -200B, -200C, and -200F series airplanes. This proposed AD would require performing repetitive inspections for cracks in the fuselage skin at the cutout of the bulk cargo door light, and corrective actions if necessary. This proposed AD also provides terminating action for airplanes with a certain type of damage. This proposed AD results from a report of a 2-inch crack through the fuselage skin and internal bonded doubler at the cutout of the bulk cargo door light. We are proposing this AD to detect and correct cracks in the fuselage skin at the cutout of the bulk cargo door light, which could result in reduced structural integrity of the fuselage at the bulk cargo door and consequent rapid decompression of the fuselage. DATES: We must receive comments on this proposed AD by July 9, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6437; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-28257; Directorate Identifier 2007-NM-034-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light 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 with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the 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 DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received a report indicating that a 2-inch crack through the fuselage skin and internal bonded doubler at the cutout of the bulk cargo door light was found during a visual fuselage skin inspection on a Model 747-200F series airplane. The crack was located at the forward lower corner of the cutout of the bulk cargo door light between stations 2060 and 2070, stringers 32R and 33R. The airplane had accumulated approximately 24,613 flight cycles and 99,339 flight hours. This condition, if not corrected, could result in reduced structural integrity of the fuselage at the bulk cargo door and consequent rapid decompression of the fuselage. The subject area on certain Model 747-100, 200B, and -200C series airplanes is almost identical to that on the affected Model 747-200F series airplanes. Therefore, those airplanes are subject to the unsafe condition revealed on the Model 747-200F series airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 747-53A2673, dated February 8, 2007. The service bulletin describes procedures for repetitive high frequency eddy current
(HFEC)inspections for cracks in the fuselage skin at the cutout of the bulk cargo door light, and corrective actions if necessary. The corrective actions are as follows: • For airplanes on which a crack is found that is 2.0 inches or less in length from the edge of the light cutout forward lower corner, Part 2 of the Accomplishment Instructions of the service bulletin describes procedures for installing a repair filler, doubler, and tripler, and performing an additional HFEC inspection of the trim edge for cracks and repairing any crack. Accomplishing these corrective actions eliminates the need for the repetitive inspections. • For airplanes on which a crack is found that is more than 2.0 inches in total length from the edge of the light cutout forward lower corner, or is at a location other than the light cutout forward lower corner, the service bulletin recommends contacting Boeing for repair instructions and doing the repair. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Service Information.” Difference Between the Proposed AD and Service Information The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Costs of Compliance There are about 65 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 36 airplanes of U.S. registry. The proposed actions would take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $5,760, or $160 per airplane, 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed 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, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-28257; Directorate Identifier 2007-NM-034-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by July 9, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 747-100, -200B, -200C, and -200F series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-53A2673, dated February 8, 2007. Unsafe Condition
(d)This AD results from a report of a 2-inch crack through the fuselage skin and internal bonded doubler at the cutout of the bulk cargo door light. We are issuing this AD to detect and correct cracks in the fuselage skin at the cutout of the bulk cargo door light, which could result in reduced structural integrity of the fuselage at the bulk cargo door and consequent rapid decompression of the fuselage. 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. Inspections/Corrective Actions
(f)Before the accumulation of 20,000 total flight cycles, or within 1,500 flight cycles after the effective date of this AD, whichever is later: Perform a high frequency eddy current
(HFEC)inspection for cracks in the fuselage skin at the cutout of the bulk cargo door light, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2673, dated February 8, 2007. Repeat the inspection thereafter at intervals not to exceed 3,000 flight cycles.
(1)If no crack is found: Repeat the inspection required by paragraph
(f)of this AD at the time specified.
(2)If any crack is found that is 2.0 inches or less in length from the edge of the light cutout forward lower corner: Before further flight, do all the corrective actions (including an additional HFEC inspection for cracks) in accordance with Part 2 of the Accomplishment Instructions of the service bulletin. Accomplishing Part 2 ends the repetitive inspections required by paragraph
(f)of this AD.
(3)If any crack is found during the inspection required by paragraph
(f)of this AD that is more than 2.0 inches in total length from the edge of the light cutout forward lower corner, or is at a location other than the light cutout forward lower corner: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (g)(2) of this AD. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office (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)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.
(3)To request a different method of compliance or a different compliance time for this AD, follow the procedures 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. Issued in Renton, Washington, on May 15, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-10045 Filed 5-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28259; Directorate Identifier 2007-NM-024-AD] RIN 2120-AA64 Airworthiness Directives; Aerospatiale Model SN-601 (Corvette) Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed 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: Cracks have been evidenced on the nose landing gear LH (left-hand) and RH (right-hand) hinge fittings due to stress corrosion on in-service aircraft. If undetected, they could lead to complete rupture of one or two of the fittings. The unsafe condition is collapse of the nose landing gear. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 25, 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 proposed 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: Mike Borfitz, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2677; 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 proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28259; Directorate Identifier 2007-NM-024-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD. Discussion The Direction Générale de l'Aviation Civile (DGAC), which is the aviation authority for France, has issued French Airworthiness Directive F-2004-169, dated October 27, 2004 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Cracks have been evidenced on the nose landing gear LH (left-hand) and RH (right-hand) hinge fittings due to stress corrosion on in-service aircraft. If undetected, they could lead to complete rupture of one or two of the fittings. The unsafe condition is collapse of the nose landing gear. The MCAI requires repetitive inspections of the nose landing gear LH and RH hinge fittings for cracking, and replacing the hinge fitting with a new fitting if any cracking is found. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Airbus has issued SN-601 Corvette Service Bulletin 32-17, dated September 23, 2004. 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 Proposed 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 proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. 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 proposed 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 proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 3 products of U.S. registry. We also estimate that it would take about 7 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,680, or $560 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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: **Aerospatiale:** Docket No. FAA-2007-28259; Directorate Identifier 2007-NM-024-AD. Comments Due Date
(a)We must receive comments by June 25, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Aerospatiale Model SN-601 (Corvette) airplanes, all serial numbers; certificated in any category. Subject
(d)Landing gear. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Cracks have been evidenced on the nose landing gear LH (left-hand) and RH (right- hand) hinge fittings due to stress corrosion on in-service aircraft. If undetected, they could lead to complete rupture of one or two of the fittings. The unsafe condition is collapse of the nose landing gear. The MCAI requires repetitive inspections of the nose landing gear LH and RH hinge fittings for cracking, and replacing the hinge fitting with a new fitting if any cracking is found. Actions and Compliance
(f)Unless already done, do the following actions.
(1)Within 200 flight hours or 6 months after the effective date of this AD, whichever occurs first: Inspect the nose landing gear LH (left-hand) and RH (right-hand) hinge fittings for cracking, in accordance with the instructions of Airbus SN-601 Corvette Service Bulletin 32-17, dated September 23, 2004.
(2)In case of finding one or several cracks, before further flight, replace the hinge fitting with a new hinge fitting in accordance with the instructions of Airbus SN-601 Corvette Service Bulletin 32-17, dated September 23, 2004. Repeat the requirements of paragraph (f)(1) of this AD thereafter at intervals not to exceed 3,600 flight hours or 36 months, whichever occurs first.
(3)If no crack is detected, repeat the requirements of paragraph (f)(1) of this AD thereafter at intervals not to exceed 3,600 flight hours or 36 months, whichever occurs first. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows: Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (f)(2) of this AD requires that you repair the cracks before further flight. 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: Mike Borfitz, Aerospace Engineer, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2677; fax
(425)227-1149. 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, 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 French Airworthiness Directive F-2004-169, dated October 27, 2004; and Airbus SN-601 Corvette Service Bulletin 32-17, dated September 23, 2004; for related information. Issued in Renton, Washington, on May 15, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-10046 Filed 5-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28255; Directorate Identifier 2007-NM-023-AD] RIN 2120-AA64 Airworthiness Directives; Lockheed Model 1329 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Lockheed Model 1329 series airplanes. This proposed AD would require determining the part number on the steering cylinder assembly for the nose landing gear (NLG), determining the total flight cycles accumulated on the NLG steering cylinder assembly, repetitive replacement of the assembly, inspecting for missing tow turning limit markings, and performing corrective actions if necessary. This proposed AD results from reports of numerous failures of the NLG steering cylinder. We are proposing this AD to prevent the loss of hydraulic pressure and steering control. DATES: We must receive comments on this proposed AD by June 25, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Lockheed Martin Aircraft & Logistics Center, 120 Orion Street, Greenville, South Carolina 29605, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Hector Hernandez, Aerospace Engineer, Systems and Equipment Branch, ACE-119A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6069; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-28255; Directorate Identifier 2007-NM-023-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light 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 with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the 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 DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received reports of numerous failures of the nose landing gear
(NLG)steering cylinder on Lockheed Model 1329 series airplanes. These failures have been attributed to stress corrosion cracking, compounded by towing of the aircraft and exceeding the allowable turn limits with the scissor links connected. The manufacturer has reviewed service history and performed structural analysis on the cylinder assembly. Failure of the steering cylinder, if not corrected, could result in the loss of hydraulic pressure and steering control. Relevant Service Information We have reviewed the Lockheed service bulletins identified in the following table. Service Bulletins Service bulletin Revision Date Affected airplanes 329-300 C September 5, 2006 1329-23A, 1329-23D, 1329-23E. 329II-32-8 B September 5, 2006 1329-25. The service bulletins describe procedures for the following actions: • Inspecting the NLG steering cylinder assembly for the installed part number; • Removing from service NLG steering cylinder assemblies, part number (P/N) JL1955-1 and JL1955-3; • Reviewing airplane records to determine the total flight cycles accumulated on the cylinder assembly; • Removing from service those cylinders that have exceeded their life limit; • Establishing life limits (including a repetitive replacement schedule) for all other part-numbered cylinder assemblies (as set forth in the Life Limits table below); • Replacing, with new parts, any cylinder assembly if its part number is JL1955-1 or JL1955-3 or its components' life limits have been exceeded; • Inspecting the exterior fuselage to confirm that the tow turning limit markings are present on the airplane; and • Restoring/applying the markings. Jetstar NLG Steering Cylinder Assembly Life Limits Component Part No. Life limit (in flight cycles) 7049-T73 die forging JL1955-7 2,100 7050-T7451 plate JL1955-9 1,075 4340 steel bar JL1955-801 3,100 15-5PH plate JL1955-13 >1,000,000 Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. We have determined that a reliable inspection of the subject area is not possible. Because the initial detectable crack is longer than the critical crack length in this case, we cannot show crack growth using damage tolerance analysis or develop appropriate inspection intervals. Further, disassembling the actuator steering cylinder—the only possible way to perform the inspection—would destroy the cylinder. As a result of service history and engineering evaluation, a fatigue-based life limit of the actuator steering cylinder is necessary to ensure the continued airworthiness of the fleet. Costs of Compliance There are about 48 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost 3 $80 $0 $240 34 $8,160 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed 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, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Lockheed:** Docket No. FAA-2007-28255; Directorate Identifier 2007-NM-023-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by June 25, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to the following airplanes, certificated in any category.
(1)Lockheed Model 1329-23A, 1329-23D, and 1329-23E series airplanes; serial numbers 5001 through 5162 inclusive.
(2)Lockheed Model 1329-25 series airplanes, serial numbers 5201 through 5240 inclusive. Unsafe Condition
(d)This AD results from reports of numerous failures of the nose landing gear
(NLG)steering cylinder. We are issuing this AD to prevent the loss of hydraulic pressure and steering control. 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. Service Information
(f)The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of the applicable service bulletin identified in Table 1 of this AD. Table 1.—Service Bulletins Lockheed service bulletin Revision Date Affected airplanes 329-300 C September 5, 2006 1329-23A, 1329-23D, 1329-23E. 329II-32-8 B September 5, 2006 1329-25. Inspection for Cylinder Assembly Part Number
(g)Within 30 days after the effective date of this AD, inspect to determine the part number (P/N) on the steering cylinder assembly for the nose landing gear (NLG). A review of airplane maintenance records is acceptable in lieu of this inspection if the part number can be conclusively determined from that review. Replace any cylinder assembly having P/N JL1955-1 or JL1955-3 with a new assembly before further flight in accordance with the applicable service bulletin. Life Limits
(h)Within 30 days after the effective date of this AD: Review the airplane records to determine the total flight cycles accumulated on the NLG steering cylinder assembly, in accordance with the applicable service bulletin. Before any steering cylinder assembly component reaches its life limit, as specified in Table 1 of the Accomplishment Instructions of the applicable service bulletin, or within 30 days after the effective date of this AD, whichever occurs later: Replace the cylinder assembly with a new assembly in accordance with the applicable service bulletin. If the steering cylinder assembly's age cannot be positively determined from the records review, replace it within 30 days after the effective date of this AD, in accordance with the applicable service bulletin. Thereafter, replace the cylinder assembly at intervals not to exceed the life limits as specified in the applicable service bulletin. Inspection for Tow Turning Limit Markings
(i)Within 30 days after the effective date of this AD: Perform a general visual inspection above the NLG doors to detect missing tow turning limit markings, in accordance with the applicable service bulletin. If any markings are absent, restore/apply markings before further flight in accordance with the applicable service bulletin. Note 1: For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.” Parts Installation
(j)As of the effective date of this AD, do not install on any airplane a NLG steering cylinder assembly that has P/N JL1955-1 or JL1955-3. Alternative Methods of Compliance (AMOCs) (k)(1) The Manager, Atlanta Aircraft Certification Office (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. Issued in Renton, Washington, on May 15, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-10033 Filed 5-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28256; Directorate Identifier 2007-NM-041-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed 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: It has been found the occurrence of smoke on the passenger cabin originated from the valance panel lighting system wiring. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by June 25, 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 proposed 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: 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: 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 proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28256; Directorate Identifier 2007-NM-041-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD. Discussion The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2007-01-03, effective January 22, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found the occurrence of smoke on the passenger cabin originated from the valance panel lighting system wiring. The corrective action is replacement of the valance panel lighting system wiring. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information EMBRAER has issued Service Bulletin 145LEG-25-0070, dated October 11, 2006. 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 Proposed 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 proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. 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 proposed 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 proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 15 products of U.S. registry. We also estimate that it would take about 36 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost between $7,900 and $8,610 per product, depending on the airplane configuration. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. 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 the proposed AD on U.S. operators to be between $161,700 and $172,350 for the fleet, or between $10,780 and $11,490 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2007-28256; Directorate Identifier 2007-NM-041-AD. Comments Due Date
(a)We must receive comments by June 25, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ airplanes, certificated in any category, serial numbers 145412, 145462, 145484, 145495, 145505, 145516, 145528, 145540, 145549, 145555, 145586, 145625, 145637, 145642, 145644, and 145678. Subject
(d)Equipment/Furnishings. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: “It has been found the occurrence of smoke on the passenger cabin originated from the valance panel lighting system wiring.” The corrective action is replacement of the valance panel lighting system wiring. Actions and Compliance
(f)Within 48 months after the effective date of this AD, unless already done, replace the wiring of the valance panel lighting system by another one that complies with the current inverter specifications, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 145LEG-25-0070, dated October 11, 2006. 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: 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. 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, 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 Brazilian Airworthiness Directive 2007-01-03, effective January 22, 2007, and EMBRAER Service Bulletin 145LEG-25-0070, dated October 11, 2006, for related information. Issued in Renton, Washington, on May 15, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-10026 Filed 5-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [CGD01-07-011] RIN 1625-AA01 Anchorage Regulations; Edgecomb Maine, Sheepscot River AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish a general anchorage area in Edgecomb, Maine, on the Sheepscot River. This action is necessary to facilitate safe navigation in that area and to provide safe and secure anchorages for transient vessels visiting the area. This proposal is intended to increase the safety for life and property on the Sheepscot River, improve the safety of anchored vessels, provide for ample anchorages for transient vessels, and provide for the overall safe and efficient flow of recreational vessels and commerce. DATES: Comments and related material must reach the Coast Guard on or before July 23, 2007. ADDRESSES: You may mail comments and related material to Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, Massachusetts 02110, who maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room 628, First Coast Guard District Boston, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. John J. Mauro, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, Massachusetts 02110, Telephone
(617)223-8355 or e-mail at *John.J.Mauro@uscg.mil* . SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-07-011), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The proposed rule is the result of colloboration with the Town of Edgecomb's Waterfront Committee to accommodate transient vessels mooring in the area. Currently, the Town of Edgecomb has two large condominium/marina complexes under construction in the harbor. Due to this growth, the Waterfront Committee wants to be proactive and to insure that there will always be suitable anchorages available to vessels transiting the area. The proposed rule would establish a general anchorage area adjacent to the current town mooring fields. These fields currently accommodate approximately 40 moorings for vessels greater than 27 feet, and 35 moorings for vessels smaller than 27 feet. The proposed rule is designed to reserve approximately 15 anchorages for transient vessels visiting the area from May through October each year. The anchorage would accommodate both sail and power vessels with a 3-to-12-foot draft. Vessels would use their own ground tackle. In developing this proposed rule, the Coast Guard has consulted with the Army Corps of Engineers, Northeast, located at 696 Virginia Road., Concord, MA 01742. Discussion of Proposed Rule The proposed rule would create a general anchorage area located in Edgecomb, Maine on the Sheepscot River. The proposed rule conforms to the changing needs of the Town of Edgecomb in addition to the needs of the recreational, fishing, and commercial vessels. The rule provides for the best use of the available navigable water. This anchorage is in the interest of safe navigation, and would protect the vessels moored at the Town of Edgecomb and marine environment. Mariners using the anchorage area would be encouraged to contact local and state authorities, such as the local harbormaster, to ensure compliance with any applicable state and local laws. Such laws may involve, for example, compliance with direction from the local harbormaster when anchoring within the anchorage. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The proposed anchorage area does not impede the passage of recreational or commercial vessels as it is not located in the primary channel of the Sheepscot River, and thus, will have a minimal economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of recreational or commercial vessels intending to transit in a portion of the Sheepscot River in and around the anchorage area. However, this anchorage area would not have a significant economic impact on these entities for the following reasons: The proposed anchorage area is not located near the primary channel of the river and will not restrict vessel traffic transiting up or down the Sheepscot River. Thus, the anchorage area will not impede safe and efficient vessel transits. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. John J. Mauro, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, Massachusetts 02110, Telephone
(617)223-8355 or e-mail at *John.J.Mauro@uscg.mil* . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(f) as it would establish an anchorage ground. A preliminary “Environmental Analysis Check List” and “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 471; 1221 through 1236, 2030, 2035 and 2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1. 2. Add § 110.131 to read as follows: § 110.131 Sheepscot River in vicinity of Edgecomb, Maine.
(a)*Anchorage grounds* . All of the waters enclosed by a line starting from a point located at the southwestern end of Davis Island at latitude 43°59.655′ N., longitude 69°39.617′ W.; thence to latitude 43°59.687′ N., longitude 69°39.691′ W.; thence to latitude 43°59.847′ N., longitude 69°39.743′ W.; thence to latitude 43°59.879′ N., longitude 69°39.559′ W.; thence to latitude 43°59.856′ N., longitude 69°39.488′ W.; thence to latitude 43°59.771′ N., longitude 69°39.585′ W.; thence to the point of beginning. DATUM: NAD 83
(b)*Regulations* .
(1)This anchorage is reserved for vessels of all types, with drafts of from 3 to 12 feet.
(2)These anchorage grounds are authorized for use from May through October.
(3)Vessels are limited to a maximum stay of 1 week.
(4)Fixed moorings, piles or stakes are prohibited.
(5)Vessels must not anchor so as to obstruct the passage of other vessels proceeding to or from other anchorage spaces.
(6)Anchors must not be placed in the channel and no portion of the hull or rigging of any anchored vessel shall extend outside the limits of the anchorage area.
(7)The anchorage of vessels is under the coordination of the local Harbormaster. Dated: April 9, 2007. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E7-9968 Filed 5-23-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [CGD01-07-009] RIN 1625-AA01 Anchorage Regulations; Yarmouth, Maine, Casco Bay AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish three special anchorage areas in Yarmouth, Maine on Casco Bay. This action is necessary to facilitate safe navigation in that area and to provide safe and secure anchorages for vessels of not more than 65 feet. This proposal is intended to increase the safety for life and property on Casco Bay, improve the safety of anchored vessels, create workable boundaries for future mooring expansion, and provide for the overall safe and efficient flow of recreational vessels and commerce. DATES: Comments and related material must reach the Coast Guard on or before July 23, 2007. ADDRESSES: You may mail comments and related material to Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, Massachusetts 02110, who maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room 628, First Coast Guard District Boston, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. John J. Mauro, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, Massachusetts 02110, Telephone
(617)223-8355 or e-mail at *John.J.Mauro@uscg.mil* . SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-07-009), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The proposed rule is the result of collaboration with the Town of Yarmouth's Harbor and Waterfront Committee and Yarmouth town council to accommodate vessels mooring in the area. The proposed rule would establish three separate special anchorage areas organized from the current accommodations of approximately 350 moorings. The proposed rule is designed to aid the Town of Yarmouth in enforcing its mooring and boating regulations by clearly defining the available mooring fields. In addition, the proposed rule will provide finite expansion boundaries of town mooring fields, ensure that there are transient anchorage areas available, and extend the convenience of a special anchorage to local vessel owners. The areas under consideration are currently established mooring areas. In developing this proposed rule, the Coast Guard has consulted with the Army Corps of Engineers, Northeast, located at 696 Virginia Road., Concord, MA 01742. Discussion of Proposed Rule The proposed rule would create three special anchorage areas located in Yarmouth, Maine on Casco Bay:
(1)Littlejohn Island/Doyle Point Cousins Island Special Anchorage,(2) Madeleine and Sandy Point Special Anchorage, and
(3)Drinkwater Point and Princes Point Special Anchorage. The Town of Yarmouth has delineated transient anchorage areas in each of the three special anchorage areas. These transient anchorage areas are located near or next to town-owned property that has limited access to parking and, in some cases, dock tie-up space. The special anchorage areas would be limited to vessels no greater than 65 feet in length. Vessels not more than 65 feet in length are not required to sound signals as required by rule 35 of the Inland Navigation Rules (33 U.S.C. 2035) nor exhibit anchor lights or shapes required by rule 30 of the Inland Navigation Rules (33 U.S.C 2030) when at anchor in a special anchorage area. Mariners utilizing the anchorage areas are encouraged to contact local and state authorities, such as the local harbormaster, to ensure compliance with any additional applicable state and local laws. Such laws may involve, for example, compliance with direction from the local harbormaster when placing or using moorings within the anchorage. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the fact that this proposal conforms to the changing needs of the Town of Yarmouth, the changing needs of recreational, fishing and commercial vessels, and to make the best use of the available navigable water. The proposed special anchorage areas do not impede the passage of recreational or commercial vessels as they are not located in the primary entrance channel to Yarmouth Harbor. The proposed special anchorage areas are a consolidation and delineation of existing mooring fields. Thus, the special anchorage area will have a minimal economic impact. This proposed rule is in the interest of safe navigation, protection of the vessels moored at the Town of Yarmouth, and protection of the marine environment. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of recreational or commercial vessels intending to transit in a portion of the Casco Bay in and around the special anchorage areas. However, these special anchorage areas would not have a significant economic impact on these entities for the following reasons: The proposed special anchorage areas are not located near the primary entrance into Yarmouth Harbor. The Littlejohn Island/Doyle Point Cousins Island Special Anchorage allows for a 100 yard channel between its boundary and buoy N ″18″ on the south side of Littlejohn Island. This is more than enough room for the types of vessels which operate in the area. The Town of Yarmouth will set two red
(nun)and two green
(can)seasonal buoys between April and November to mark an eighty foot fairway from the main channel to the Wharf Road Dock to delineate the path taken by the Chebeague Island Transportation Company
(CTC)ferry. The largest vessel operated by CTC is a 65 foot tow vessel and barge. The special anchorage area will not impede safe and efficient vessel transit in the area. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. John J. Mauro, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, Massachusetts 02110, Telephone
(617)223-8355 or e-mail at *John.J.Mauro@uscg.mil* . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction from further environmental documentation. This rule fits the category selected from paragraph (34)(f) as it would establish a special anchorage area. A preliminary “Environmental Analysis Check List” and “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 471; 1221 through 1236, 2030, 2035 and 2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1. 2. Amend § 110.5 by adding paragraph
(f)to read as follows: § 110.5 Casco Bay, Maine.
(f)*Yarmouth Harbor and adjacent waters* —(1) *Littlejohn Island/Doyle Point Cousins Island Special Anchorage* . All of the waters enclosed by a line connecting the following points: starting from the northernmost point of Littlejohn Island at latitude 43°45′86″ N., longitude 70°06′95″ W.; thence to latitude 43°45′78″ N., longitude 70°06′89″ W.; thence to latitude 43°45′43″ N., longitude 70°07′38″ W.; thence to latitude 43°45′28″ N., longitude 70°07′68″ W.; thence to latitude 43°44′95″ N., longitude 70°08′45″ W.; thence to latitude 43°44′99″ N., longitude 70°08′50″ W. DATUM: NAD 83.
(2)*Madeleine and Sandy Point Special Anchorage.* All of the waters enclosed by a line connecting the following points: starting from a point northeast of Birch Point on Cousins Island at latitude 43°45′27″ N., longitude 70°09′32″ W.; thence to latitude 43°45′35″ N., longitude 70°09″50′ W.; thence to latitude 43°45′63″ N., longitude 70°09′18″ W.; thence to latitude 43°45′95″ N., longitude 70°08′98″ W.; thence to latitude 43°45′99″ N., longitude 70°08′83″ W. DATUM: NAD 83.
(3)*Drinkwater Point and Princes Point Special Anchorage.* All of the waters enclosed by a line connecting the following points: starting south of Drinkwater Point in Yarmouth, Maine at latitude 43°46′42″ N., longitude 70°09′25″ W.; thence to latitude 43°46′35″ N., longitude 70°09′16″ W.; thence to latitude 43°46′07″ N., longitude 70°09′77″ W.; thence to latitude 43°45′48″ N., longitude 70°10′40″ W.; thence to latitude 43°45′65″ N., longitude 70°10′40″ W. DATUM: NAD 83. Note to § 110.5(f): An ordinance of the Town of Yarmouth, Maine requires the approval of the Yarmouth Harbor Master for the location and type of moorings placed in these special anchorage areas. All anchorings in the areas are under the supervision of the Yarmouth Harbor Master or other such authority as may be designated by the authorities of the Town of Yarmouth, Maine. All moorings are to be so placed that no moored vessel will extend beyond the limit of the area. Dated: April 9, 2007. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E7-9969 Filed 5-23-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF EDUCATION 34 CFR Part 75 [Docket ID ED-2007-OCFO-0132] RIN 1890-AA15 Direct Grant Programs AGENCY: Office of the Chief Financial Officer, Department of Education. ACTION: Notice of proposed rulemaking. SUMMARY: The Secretary proposes to amend the regulations in 34 CFR part 75, regarding the determination and recovery of indirect costs by grantees. The proposed amendments would address procedural aspects related to the establishment of temporary indirect cost rates, specify the temporary rate that would apply to grants generally, and clarify how indirect costs are determined for a group of applicants that apply for a single training grant. DATES: We must receive your comments on or before June 25, 2007. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov,* select “Department of Education” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select ED-2007-OCFO-0132 to add or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for submitting comments, accessing documents, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail, Commercial Delivery, or Hand Delivery.* If you mail or deliver your comments about these proposed regulations, address them to Richard Mueller, U.S. Department of Education, 830 First Street, NE., room 21C7, Washington, DC 20202-4450. Privacy Note: The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing on the Federal eRulemaking Portal at *http://www.regulations.gov* All submissions will be posted to the Federal eRulemaking Portal without change, including personal identifiers and contact information. FOR FURTHER INFORMATION CONTACT: Richard Mueller. *Telephone:*
(202)377-3838 or *via Internet: Richard.Mueller@ed.gov.* If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service
(FRS)at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT . SUPPLEMENTARY INFORMATION: Invitation To Comment We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations. We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should provide to reduce the potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's Direct Grant programs. During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments, in person, in room 21C7, 830 First Street, NE., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern Time, Monday through Friday of each week except Federal holidays. Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record On request, we will supply an appropriate aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT . Background Changes to Indirect Cost Policy The Secretary proposes amendments to improve the Department's ability under 34 CFR 75.560 to provide a temporary indirect cost rate. The temporary rate for a grantee that does not have a federally recognized indirect cost rate at the time the Department awards its first grant to the grantee would be ten percent of the direct salaries and wages of the project. These changes would permit the use of a temporary indirect cost rate under the grant award for the first ninety days after the date the Department issues the Grant Award Notification. A grantee may continue to charge indirect costs at the temporary rate after the first ninety days if the grantee submits a formal indirect cost proposal to its cognizant agency within those ninety days. If, after the ninety-day period, a grantee has not submitted an indirect cost proposal to its cognizant agency, it must stop using the temporary rate. After that period, the grantee would not be allowed to charge any indirect costs to its grant until it obtained a federally recognized indirect cost rate from its cognizant agency. These regulations are needed to make the Department's practice consistent with the practice of other Federal agencies and reduce the number of improper payments that result when applicants budget indirect costs that are greater than the actual indirect costs the applicant can expect to recover under Federal cost principles. Currently, new grantees of the Department are not recovering any indirect costs until they negotiate an indirect cost rate with their cognizant agencies. These proposed regulations would help a new grantee by permitting it to recover indirect costs at the temporary rate until it negotiate a rate with its cognizant agency or for ninety days if it does not submit its indirect cost rate proposal to its cognizant agency within the ninety-day period. The proposed regulations would also clarify how the modified total direct cost base is determined when a grant is subject to the eight percent indirect cost rate limitation for training grants and would specify how that rate is applied when the Department awards a grant to a group of applicants. These changes are necessary to correct an oversight in the current regulations. Significant Proposed Regulations 34 CFR Part 75 Section 75.560 General Indirect Cost Rates; Exceptions The Secretary proposes to amend § 75.560
(c)and
(d)to specify the procedures used to establish temporary indirect cost rates for any grantee that does not have a federally recognized indirect cost rate. The proposed language would require such a grantee to submit an indirect cost rate proposal to its cognizant agency within ninety days after the date the Department issues the Grant Award Notification to the grantee. In most cases, the cognizant agency is the agency that provides the most federal funding to a grantee under programs that authorize grantees to charge indirect costs to their grants. Under the proposed regulations, the grantee could charge indirect costs at a temporary indirect cost rate of ten percent of the budgeted direct salaries and wages. If a grantee does not submit an indirect cost rate proposal to its cognizant agency by the end of the ninety-day period, the proposed regulations would provide that the grantee could not charge any more indirect costs to its grant until it negotiated a federally recognized rate. If a grantee negotiates an indirect cost rate that would recover more funds than the temporary rate has recovered, the proposed regulations would permit the grantee to recover the difference between the amount it would have recovered under the federally recognized rate and the amount it already recovered under the temporary rate after the date the indirect cost proposal was submitted to the cognizant agency. *Example:* The project period for a grant starts on June 1 and the grantee starts recovering indirect costs at ten percent of direct salaries and wages; the indirect cost proposal is submitted to the cognizant agency on July 1; and the grantee obtains a federally recognized indirect cost rate on September 15. From June 1 through June 30, the grantee expends $5,000 in direct salaries and wages. Using the temporary rate of ten percent of direct salaries and wages, the grantee recovers $500 in indirect costs for this period. From July 1 through September 15, the grantee charges its grant $12,500 in direct salaries and wages, which produces an indirect cost recovery of $1,250 under the temporary rate. The grantee negotiates an indirect cost rate with its cognizant agency of twenty percent of its modified total direct cost base. For the period July 1 through September 15, the grantee expends $15,000 in modified total direct costs. Thus, under the negotiated rate, the grantee is entitled to recover $3,000 for the period July 1 through September 15. Assuming sufficient funds are available within the grant budget, the grantee can recover an additional amount of $1,750 in un-recovered indirect costs for the period July 1 through September 15. This $1,750 represents the difference between the $1,250 it already recovered for that period and the $3,000 that it could have recovered under the negotiated rate. The grantee cannot claim indirect costs at the negotiated rate for the period June 1 through June 30 because it did not submit its indirect cost proposal until July 1. However, it can keep the $500 in indirect costs it recovered under the temporary rate for that period. [End of example] Under the proposed regulations, the grantee would have to obtain prior approval from the Department to shift direct costs to indirect costs. This limitation is needed to ensure that the shifting of funds from direct costs to indirect costs does not result in a change in the scope or objectives of the project. To reduce the potential for adverse budget implications for the Department, the grantee would not be permitted to request additional funds in order to fully recover indirect costs. Section 75.562 Indirect Cost Rates for Educational Training Projects The Secretary proposes to amend § 75.562(c) to clarify that—a grantee cannot include the amount of a sub-award 1 that exceeds $25,000 in the modified total direct cost base used to determine and charge its indirect cost rate. For example, if a grantee hired an evaluator for its grant and the sub award to the evaluator cost the grantee $60,000, the grantee could claim only the first $25,000 of that contract in its claim for indirect costs. This exclusion of costs above $25,000 for sub-awards recognizes the fact that the grantee is not responsible for most of the costs of support services that the contractor supplies for its own services to the grantee. That is because the contractor builds those costs into the cost of the contract to the grantee. Also, we note that if the contract is a multi-year contract, the grantee can only recover indirect costs against the first $25,000 of the contract in the first year of the contract because, after the year that the grantee awards the contract, the grantee has no special indirect costs associated with the contract. 1 The term “sub-award” as used in the proposed regulation covers both sub grants and contracts made under a grant. However, because virtually all of the Department's discretionary grant programs do not authorize grantees to award sub grants, we only describe in this preamble the effect of the proposed regulation on contracts awarded by grantees. These proposed regulations would also clarify that the definition of the word equipment, as used in this section, is the same as the definition of equipment in parts 74 and 80. Under that definition, a grantee may choose to treat as equipment items of useful value of less than $5,000 but, if it does so, all equipment above the lower threshold must be excluded from the modified total direct cost base. Example: If a grantee has a policy of capitalizing equipment that costs $3,000 or more, then it must exclude all equipment that has a useful value of $3,000 or more from the modified total direct cost base for the project. Section 75.564 Reimbursement of Indirect Costs The Secretary proposes to amend § 75.564(e) to clarify the determination of indirect costs for a training grant in the context of a grant to a group of organizations that apply together for a grant under the procedures in 34 CFR 75.127—75.129. Executive Order 12866 1. Potential Costs and Benefits Under Executive Order 12866, we have assessed the potential costs and benefits—both quantitative and qualitative—of this regulatory action. The potential costs associated with the proposed regulations are those resulting from statutory requirements and those we have determined to be necessary for administering the Department's Direct Grant programs effectively and efficiently. In assessing the potential costs and benefits of this regulatory action, we have determined that the benefits would justify the costs. Summary of Potential Costs and Benefits These regulations impose no additional burdens on applicants for discretionary grants or recipients of grants. The regulations merely specify the rate at which grantees can recover indirect costs during a temporary period when the grantee does not have an indirect cost rate recognized by the Federal Government and establish procedural requirements regarding temporary indirect cost rates. While these proposed regulations would prohibit a grantee from recovering indirect costs if the grantee has not submitted its indirect cost proposal within the ninety days after the date the Department issues the grant award notification, the burden and timing of submitting a proposal under the federal cost principles does not change at all. 2. Clarity of the Regulations Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following: • Are the requirements in the proposed regulations clearly stated? • Do the proposed regulations contain technical terms or other wording that interferes with their clarity? • Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity? • Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, *§ 75.210 General selection criteria.* • Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how? • What else could we do to make the proposed regulations easier to understand? To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the ADDRESSES section of this preamble. Regulatory Flexibility Act Certification The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities because the proposed regulations do not impose any new burdens at all. Paperwork Reduction Act of 1995 These proposed regulations do not contain any information collection requirements. Intergovernmental Review These proposed regulations affect Direct Grant programs of the Department that are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and to strengthen federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for these programs. Assessment of Educational Impact The Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister.* To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at
(202)512-1530. Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html.* (Catalog of Federal Domestic Assistance Number does not apply.) List of Subjects in 34 CFR Part 75 Administrative practice and procedure, Education Department, Grant programs—education, Grant administration, Performance reports, Reporting and recordkeeping requirements, Unobligated funds. Dated: May 18, 2007. Margaret Spellings, Secretary of Education. For the reasons discussed in the preamble, the Secretary proposes to amend part 75 of title 34 of the Code of Federal Regulations as follows: PART 75—DIRECT GRANT PROGRAMS 1. The authority citation for part 75 continues to read as follows: Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted. 2. Section 75.560 is amended by revising paragraphs
(b)and (c), redesignating paragraph
(d)as paragraph
(e)and adding a new paragraph
(d)to read as follows: § 75.560 General indirect cost rates; exceptions.
(b)A grantee must have obtained a current indirect cost rate agreement from its cognizant agency, to charge indirect costs to a grant. To obtain an indirect cost rate, a grantee must submit an indirect cost proposal to its cognizant agency within ninety days after the date the Department issues the grant award notification.
(c)If a grantee does not have a federally recognized indirect cost rate agreement, the Secretary may permit the grantee to charge its grant for indirect costs at a temporary rate of ten percent of budgeted direct salaries and wages. (d)(1) If a grantee fails to submit an indirect cost rate proposal to its cognizant agency within the required ninety days, the grantee may not charge indirect costs to its grant from the end of the ninety-day period until it obtains a federally recognized indirect cost rate agreement applicable to the grant.
(2)If the Secretary determines that exceptional circumstances warrant continuation of a temporary indirect cost rate, the Secretary may authorize the grantee to continue charging indirect costs to its grant at the temporary rate specified in paragraph
(c)of this section even though the grantee has not submitted its indirect cost rate proposal within the ninety-day period.
(3)Once a grantee obtains a federally recognized indirect cost rate that is applicable to the affected grant, the grantee may use that indirect cost rate to claim indirect cost reimbursement for expenditures made on or after the date the grantee submitted its indirect cost proposal to its cognizant agency or the start of the project period, whichever is later. However, this authority is subject to the following limitations:
(i)The total amount of funds recovered by the grantee under the federally recognized indirect cost rate is reduced by the amount of indirect costs recovered under the temporary indirect cost rate after the date the indirect cost proposal was submitted to the cognizant agency.
(ii)The grantee must obtain prior approval from the Secretary to shift direct costs to indirect costs in order to recover indirect costs at a higher negotiated indirect cost rate.
(iii)The grantee may not request additional funds to recover indirect costs that cannot be recovered by shifting direct costs to indirect costs. 3. Section 75.562 is amended by revising paragraph
(c)to read as follows: § 75.562 Indirect cost rates for educational training projects. (c)(1) Indirect cost reimbursement on a training grant is limited to the recipient's actual indirect costs, as determined in its negotiated indirect cost rate agreement, or eight percent of a modified total direct cost base, whichever amount is less.
(2)For the purposes of this section, a modified total direct cost base consists of total direct costs minus the following:
(i)The amount of each sub-award in excess of $25,000.
(ii)Stipends.
(iii)Tuition and related fees.
(iv)Equipment, as defined in 34 CFR 74.2 and 80.3, as applicable. Note: If the grantee has established a threshold for equipment that is lower than $5,000 for other purposes, it must use that threshold to exclude equipment under the modified total direct cost base for the purposes of this section.
(3)The eight percent indirect cost reimbursement limit specified in paragraph (c)(1) of this section also applies to sub-awards that fund training, as determined by the Secretary under paragraph
(b)of this section.
(4)The eight percent limit does not apply to agencies of State or local governments, including federally recognized Indian tribal governments, as defined in 34 CFR 80.3.
(5)Indirect costs in excess of the eight percent limit may not be charged directly, used to satisfy matching or cost-sharing requirements, or charged to another Federal award. 4. Section 75.564 is amended by revising paragraph
(e)to read as follows: § 75.564 Reimbursement of indirect costs. (e)(1) Indirect costs for a group of eligible parties (See §§ 75.127-75.129) are limited to the amount derived by applying the rate of the applicant, or a restricted rate when applicable, to the direct cost base for the grant in keeping with the terms of the applicant's federally recognized indirect cost rate agreement.
(2)If a group of eligible parties applies for a training grant under the group application procedures in §§ 75.127-75.129, the grant funds allocated among the members of the group are not considered sub-awards for the purposes of applying the indirect cost rate in 34 CFR 75.562(c). (Authority: 20 U.S.C. 1221e-3 and 3474) [FR Doc. E7-10036 Filed 5-23-07; 8:45 am] BILLING CODE 4000-01-P POSTAL SERVICE 39 CFR Part 111 Electronic Option for Delivery Confirmation Service Required for Priority Mail Open and Distribute AGENCY: Postal Service. ACTION: Proposed rule. SUMMARY: The Postal Service currently allows mailers to use the electronic option for Delivery Confirmation service on Priority Mail Open and Distribute containers. We are proposing to make this optional extra service a requirement. DATES: Submit comments on or before June 25, 2007. ADDRESSES: Mail or deliver written comments to the Manager, Mailing Standards, U.S. Postal Service, 475 L'Enfant Plaza, SW., Room 3436, Washington, DC 20260-3436. Copies of all written comments will be available for inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, at the Postal Service Headquarters Library, 475 L'Enfant Plaza, SW., 11th Floor North, Washington, DC 20260-0004. FOR FURTHER INFORMATION CONTACT: Jean Arnao, Package Services, 202-268-7467; or Garry Rodriguez, Mailing Standards, 202-268-7281. SUPPLEMENTARY INFORMATION: On February 1, 2007, the Postal Service replaced Express Mail Drop Shipment and Priority Mail Drop Shipment with Express Mail Open and Distribute and Priority Mail Open and Distribute. The revised standards were designed to enhance the Postal Service's ability to provide mailers with expedited service to destination delivery units and other mail processing facilities. In the revision, we provided mailers with an option to use the electronic option for Delivery Confirmation service to verify delivery. We offered this option to enable mailers to receive, at no additional cost, vital performance information that includes the date, ZIP Code, and time their Priority Mail Open and Distribute containers are delivered to their destination. The new requirement for electronic option Delivery Confirmation service on all Priority Mail Open and Distribute containers would allow the Postal Service to monitor these mailings by providing increased visibility to the individual mail containers, providing a measurement tool, and effectively communicating to mailers the delivery status of each container. Our proposal would require mailers to use the electronic option for Delivery Confirmation service for Priority Mail Open and Distribute containers in accordance with instructions in Publication 91, *Confirmation Services Technical Guide.* The required use of the electronic option for Delivery Confirmation service for Priority Mail Open and Distribute containers would be effective October 1, 2007. Although we are exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. of 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comments on the following proposed revisions to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. List of Subjects in 39 CFR Part 111 Postal Service. Accordingly, 39 CFR part 111 is proposed to be amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001. 2. Revise the following sections of *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 700 Special Standards 705 Advanced Preparation and Special Postage Payment Systems 16.0 Express Mail Open and Distribute and Priority Mail Open and Distribute 16.4 Additional Standards for Priority Mail Open and Distribute 16.4.2 Extra Services *[Revise the first sentence in 16.4.2 to require the use of electronic option Delivery Confirmation service on each container of Priority Mail Open and Distribute as follows:]* Electronic option Delivery Confirmation service is required on all Priority Mail Open and Distribute containers. * * * 16.5 Preparation 16.5.4 Tags 161 and 190—Priority Mail Open and Distribute *[Delete item c.]* 16.6.7 Delivery Confirmation Service *[Revise the text of 16.6.7 as follows:]* Mailers should prepare address labels on Label 23, Tag 161, and Tag 190, using the formats in 16.6.8 through 16.6.11. A Delivery Confirmation service barcode must be incorporated in the address label (see 16.4.2). Mailers must obtain USPS certification for each printer used to print barcoded Delivery Confirmation service labels. Further certification and formatting specifications are included in Publication 91, *Confirmation Services Technical Guide.* We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes if our proposal is adopted. Neva Watson, Attorney, Legislative. [FR Doc. E7-9967 Filed 5-23-07; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2006-0985-200625; FRL-8317-9] Approval and Promulgation of Implementation Plans Georgia: Enhanced Inspection and Maintenance Plan AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP)revisions submitted by the State of Georgia, through the Georgia Environmental Protection Division (GA EPD), on July 25, 2006, and January 25, 2007, pertaining to rules for Enhanced Inspection and Maintenance (I/M). In the Final Rules Section of this **Federal Register** , EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this document. Any parties interested in commenting on this document should do so at this time. DATES: Written comments must be received on or before June 25, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2006-0985, by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *harder.stacy@epa.gov* . 3. *Fax:*
(404)562-9019. 4. *Mail:* “EPA-R04-OAR-2006-0985,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-8965. Ms. Harder can also be reached via electronic mail at *harder.stacy@epa.gov* . SUPPLEMENTARY INFORMATION: For additional information see the direct final rule which is published in the Rules section of this **Federal Register** . Dated: May 14, 2007. Russell L. Wright, Jr., Acting Regional Administrator, Region 4. [FR Doc. E7-10059 Filed 5-23-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 601 [EPA-HQ-OAR-2005-0173; FRL-8317-2] RIN 2060-AN68 SAFETEA-LU High Occupancy Vehicle Facilities Exemption Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of proposed rulemaking. SUMMARY: The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users Act, which was signed into law on August 10, 2005, contains provisions which apply to state High Occupancy Vehicle
(HOV)facilities. Among other exceptions, SAFETEA-LU Section 1121, which is codified at 23 United States Code (U.S.C.) 166 now allows an exemption from the HOV facility occupancy requirement for vehicles certified as “low emission and energy-efficient.” As directed by the 2005 Transportation Act, EPA must issue regulations for certifying vehicles as “low emission and energy-efficient.” Specifically, this action proposes the requirements for “low emission and energy-efficient”, including procedures for making fuel economy comparisons and the requirements for labeling these vehicles. As the Department of Transportation
(DOT)is responsible for the planning and implementation of HOV programs, any changes to HOV programs as a result of this action would also be implemented by DOT and enforced by the individual states that choose to adopt these requirements. As directed by the 2005 Transportation Act, the HOV multiple-occupancy exemption for low emission and energy-efficient vehicle expires September 30, 2009. DATES: Comments on this Notice of Proposed Rulemaking must be submitted on or before July 9, 2007. A public hearing will be held on June 8, 2007. Requests to present oral testimony must be received on or before June 1, 2007. If EPA receives no requests to present oral testimony by this date, the hearing will be canceled. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2005-0173, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: pugliese.holly@epa.gov.* • *Fax:* 734-214-4053. • *Mail:* EPA-OAR-2005-0173, Environmental Protection Agency, 2000 Traverwood, Ann Arbor, MI 48105 • *Hand Delivery:* Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0173. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. EPA recommends that you include your name and other contact information in the body of your comment if you submit an electronic comment or with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744. FOR FURTHER INFORMATION CONTACT: Holly Pugliese, Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, Environmental Protection Agency, 2000 Traverwood, Ann Arbor, MI 48105; telephone number: 734-214-4288; fax number: 734-214-4053; e-mail address: *pugliese.holly@epa.gov.* *Access to Rulemaking Documents Through the Internet:* This action is available electronically on the date of publication from EPA's **Federal Register** Web site listed below. Electronic versions of this preamble, regulatory language, and other documents associated with this proposal rule are available from the EPA Office of Transportation and Air Quality Web site, listed below, shortly after the rule is signed by the Administrator. These services are free of charge, except any cost that you already incur for connecting to the Internet. EPA **Federal Register** Web site: *http://www.epa.gov/docs/fedrgstr/epa-air/* (either select a desired date or use the Search feature). EPA Office of Transportation and Air Quality Web site: *http://www.epa.gov/otaq/* (look in What's New or under specific rulemaking topic). Please note that due to differences between the software used to develop the documents and the software into which the documents may be downloaded, changes in format, page length, etc., may occur. SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? Regulated categories and entities covered by this proposal are described in the following table: Category NAICS codes a SIC codes b Examples of potentially regulated parties State governments 92 (Public Admin) 9131 (Exec and Legislative Offices Cmb) State governments involved with transportation and/or high occupancy vehicle facilities. a North American Industry Classification System (NAICS). b Standard Industrial Classification
(SIC)System. This list is not intended to be exhaustive, but rather provides a guide regarding entities likely to be regulated by this action. To determine whether particular activities may be regulated by this action, you should carefully examine the proposed regulations. You may direct questions regarding the applicability of this action to the person listed in FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting Comments With Confidential Business Information
(CBI)Commenters who wish to submit proprietary information or CBI for consideration should clearly separate such information from other comments by
(1)labeling proprietary information “Confidential Business Information” and
(2)sending proprietary information directly to the contact person listed (see FOR FURTHER INFORMATION CONTACT ). Do not submit CBI to EPA through the docket, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the CBI must be submitted for inclusion in the public docket. Information covered by a claim of confidentiality will be disclosed by EPA only to the extent allowed and by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies the submission when it is received by EPA, the submission may be made available to the public without notifying the commenters. 2. Tips for Preparing Your Comments When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. Table of Contents I. Why Is This Action Being Taken? II. What Are EPA's Proposed Requirements for the Certification of Low Emission and Energy-Efficient Vehicles? A. How Is EPA Proposing To Determine a Low Emission Vehicle? B. How Is EPA Proposing To Determine an Energy-Efficient Vehicle? 1. What Fuel Economy Values Are Being Used To Determine if a Vehicle Is Energy-Efficient? 2. How Is EPA Proposing To Determine a “Comparable Vehicle”? 3. What Other Methods Did EPA Consider for Determining a “Comparable Vehicle”? C. Will All Hybrid Vehicles Qualify for the HOV Facilities Exemption? D. What Alternative Fuel Vehicles Could Qualify for the HOV Facilities Exemption? E. How Will EPA Make Available the List of Eligible Vehicles? F. What Labeling Requirements Is EPA Proposing for Low Emission and Energy-Efficient Vehicles? G. What Impacts Are Associated With This Rulemaking? III. Request for Comments IV. What Are the Opportunities for Public Participation? A. Copies of This Proposal and Other Related Information B. Public Hearing V. What Are the Administrative Requirements for This Proposed Rule? A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act VI. What Are the Statutory Provisions and Legal Authority for This Proposed Rule? I. Why Is This Action Being Taken? On August 10, 2005, President Bush signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59). In general, SAFETEA-LU builds on the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) and the Transportation Equity Act for the 21st Century (TEA-21) to supply funds and improve the programmatic framework for investments needed to maintain and grow the U.S. transportation infrastructure. SAFETEA-LU specifically covers Federal surface transportation programs for highways, highway safety, and transit from 2005 until 2009. The HOV facilities provisions of Section 1121 of SAFETEA-LU, which are codified at 23 U.S.C. 166, are the subject of this proposal. With a number of exceptions described more fully in Section 1121 of SAFETEA-LU, vehicles using HOV facilities must have two or more occupants. One of those exceptions is contained in 23 U.S.C. 166 and provides an exemption to this occupancy requirement for “inherently low emission” vehicles and other ‘low emission and energy-efficient’ vehicles. Specifically, SAFETEA-LU added section 166(b)(5)(A) to title 23 of the U.S.C., which permits states to allow vehicles certified as “inherently low emission” vehicles to be exempted from the HOV facility occupancy requirements. “Inherently low emitting” vehicles are defined in title 40 section 88.311-93 of the Code of Federal Regulations (CFR). In addition, 23 U.S.C. 166 allows, but does not require, states to include a new occupancy exemption for the use of “low emission and energy-efficient” vehicles that do not meet the minimum occupancy requirement in HOV facilities. Section 166(e) of 23 U.S.C. lays the groundwork for this proposal. Specifically, it directs EPA to issue regulations for certifying “low emission and energy-efficient vehicles,” establishing procedures for making fuel economy comparisons in order to determine qualifying vehicles, and providing requirements for labeling these vehicles. States with HOV facilities may optionally adopt this exemption, which expires September 30, 2009. This expiration date means that, unless Congress issues a reauthorization for the provisions in 23 U.S.C. 166, state programs allowing low emission and energy-efficient vehicles that do not meet the minimum occupancy requirement to use HOV facilities will no longer be federally permitted and low emission and energy-efficient vehicles that do not meet the established occupancy requirement will no longer be eligible to use HOV facilities. According to section 1121(c) of SAFETEA-LU, it is the sense of Congress to provide additional incentives (including the use of HOV facilities on State and Interstate highways) for the purchase and use of hybrid and other fuel efficient vehicle technologies, which have been proven to reduce exhaust emissions and decrease fossil fuel consumption by the transportation sector. EPA believes that this proposed rulemaking appropriately meets the requirements of 23 U.S.C. 166 by providing a useful methodology for designating vehicles as low emission and energy-efficient, thereby furthering the intent of Congress. II. What Are EPA's Proposed Requirements for the Certification of Low Emission and Energy-Efficient Vehicles? To fulfill the requirements of 23 U.S.C. 166, a low emission and energy-efficient vehicle must meet the definition provided in 23 U.S.C. 166(f)(3). This definition includes separate components for emissions and energy efficiency. The sections below discuss EPA's proposed criteria for determining a “low emission” and “energy-efficient” vehicle, based on the statutory definition. A. How Is EPA Proposing To Determine a Low Emission Vehicle? Section 166(f)(3)(A) defines the “low emission” component of a “low emission and energy-efficient” vehicle to be a vehicle that has been certified by EPA as meeting “the Tier II emission level established in regulations prescribed by the EPA under section 202(i) of the Clean Air Act
(CAA)for that vehicle's make, model, and model year” (“Tier II” will hereafter be referred to as “Tier 2”). The Tier 2 emission certification standards phase in over time and by vehicle classification. The standards took effect beginning in model year 2004 and will be fully implemented for light-duty vehicles and light light-duty trucks, up to 6000 pounds (lbs.) gross vehicle weight rating (GVWR), in 2007 (40 CFR 86.1811-04(k)). The standards for heavy light-duty trucks, 6000 to 8500 lbs. GVWR, will not be fully implemented until the 2009 model year. The Tier 2 standards also apply to medium-duty passenger vehicles, 8501 to 10,000 lbs. GVWR, but these vehicles are not included in this proposal, as vehicles weighing over 8500 lbs. GVWR are statutorily exempted from federal fuel economy requirements until 2011, 1 as described in 49 U.S.C. 32908(a). 1 The National Highway Traffic Safety Administration recently finalized a rulemaking, “Average Fuel Economy Standards for Light Trucks Model Years 2008-2011” (March 29, 2005), that extends fuel economy provisions for CAFE for medium-duty passenger vehicles weighing 8501-10,000 lbs. GVWR. However, these provisions do not take effect until 2011 and thus will not impact this notice. *http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Rulemaking/Rules/Associated%20Files/2006FinalRule.pdf,* last viewed 4/5/06. The Tier 2 emission standards are based on a system of emission bins in which light-duty vehicles and light-duty trucks are certified in one of eight bins; 2 Bin 1 represents the cleanest or lowest emitting vehicles, and Bin 8 represents the highest emitting vehicles of the Tier 2 bins. Thus, some Tier 2 vehicles will be more polluting than others. The emission standards for a manufacturer's vehicle fleet must comply on average with the Tier 2 Bin 5 level. Thus, the Tier 2 Bin 5 emission certification levels are the average of the Tier 2 emission levels with lower bins (i.e. 4, 3, 2, or 1) representing lower emitting vehicles and higher bins (i.e. 6, 7, or 8) representing vehicles that are more polluting. 2 In actuality, there are up to 11 Bins for Tier 2. However, Bins 9-11 are only interim phase-in bins that expired at the end of the 2006 model year for cars and light trucks. In addition, while 23 U.S.C. 166 specifically mentions the Federal emission certification levels of Tier 2, not all vehicles are certified to comply with federal standards. California has separate emission standards (along with a number of states that have adopted California's emission standards as permitted under Section 177 of the Clean Air Act (42 U.S.C. 7507.), which are generally equivalent to the Tier 2 standards. The current California emission standards are known as Low Emission Vehicle-II (LEV-II) standards (Final Regulation Order as Filed with the Secretary of State, October 28, 1999). 3 California-certified vehicles were required to begin phasing-in to the LEV-II standards in 2004. 3 *http://www.arb.ca.gov/msprog/levprog/levii/levii.htm,* last viewed 4/5/06. The LEV-II standards are grouped in the following categories (listed in order of least to most stringent): Low emission vehicle (LEV), ultra low emission vehicle (ULEV), super low emission vehicle (SULEV), partial zero emission vehicle (PZEV), and zero emission vehicle (ZEV). There are separate emission standards under each of these categories for passenger cars, 4 up to 8500 lbs. GVWR and medium-duty vehicles, 8501-14,000 lbs. GVW. As discussed above, this proposal applies only to vehicles with vehicle weight at or below 8500 lbs. GVWR, so the standards for medium-duty vehicles are not relevant to the proposal. 4 California passenger cars include light-duty vehicles and light-duty trucks, including most sport utility vehicles and most large pickup trucks. Since 23 U.S.C. 166 specifies that vehicles meet “the Tier II emission level”, and since Tier 2 Bin 5 represents the required manufacturer fleet average, this action proposes that in order to be considered as a “low emission vehicle,” a vehicle must comply with Tier 2 Bin 5 or better (Bins 5, 4, 3, 2 and 1). For the purpose of this proposal, we are considering vehicles certified to the California LEV II standards (13 CCR 1961(a)(1)) for passenger cars and light trucks (LEV II, ULEV II, SULEV II, PZEV, and ZEV) as meeting the Tier 2 emission level, because the emission levels required by those standards are equivalent to or more stringent than the Tier 2 Bin 5 level (13 CCR 1961(a)(1)). There are several reasons why EPA believes it is appropriate to propose that a vehicle must meet EPA Tier 2 Bin 5 or better to be designated as “low emission.” First, these standards meet the 23 U.S.C. 166 requirement that vehicles meet the Tier 2 emission level, which is best understood to mean the average level. Second, EPA believes it is appropriate to limit the bins to Tier 2 Bin 5 or cleaner, because Bin 5 represents the required manufacturer fleet average emission standard. Any vehicle certified to comply with a less stringent bin would have emission levels higher than the required fleet average, and thus is not reasonably considered a “low emission” vehicle. Third, this proposal is generally consistent with a separate statutory requirement in the Energy Policy Act of 2005 (hereafter referred to as “Energy Act”) (Pub. L. 109-58, August 8, 2005) which requires a vehicle to meet, at a minimum, the Tier 2 Bin 5 emission levels, along with a minimum fuel economy, in order to qualify for a motor vehicle tax credit. Therefore, based on the rationale described above, this action proposes that a “low emission” vehicle must be certified to the EPA Tier 2 Bin 5 or cleaner, or California LEV-II, ULEV-II, SULEV-II, PZEV, and ZEV emission levels for light-duty vehicles and light-duty trucks up to 8500 lbs. GVWR. B. How Is EPA Proposing To Determine an Energy-Efficient Vehicle? 23 U.S.C. 166 states that a vehicle must be “energy-efficient” in order to be eligible for exemption from the HOV facility occupancy requirements. In particular, section 166(f)(3)(B) states that the term “energy-efficient” vehicle means:
(1)A vehicle that achieves a 50 percent increase in city fuel economy at a minimum or a 25 percent increase in combined city-highway fuel economy at a minimum relative to a comparable gasoline-fueled vehicle, excluding gasoline-hybrid technologies; or
(2)An alternative fuel vehicle. EPA's proposed methodology for determining a comparable gasoline-fueled vehicle (excluding hybrid technology), and thus determining eligibility for an HOV occupancy exemption based on a fuel economy comparison, is described below. In addition, to help ensure HOV facility performance would not be degraded as a result of the occupancy exemption, 23 U.S.C. 166 provides states with the discretion to require more stringent fuel economy criteria (that is, a greater city or city-highway fuel economy percent increase) for their HOV programs. In addition to defining an energy-efficient vehicle based on the fuel economy criteria referenced above, 23 U.S.C. 166 allows specified alternative fuel vehicles to be considered as energy-efficient. The specified alternative fuels that are covered by 23 U.S.C. 166, and hence this proposal, are listed in section D below. 1. What Fuel Economy Values Are Being Used To Determine if a Vehicle Is Energy-Efficient? To ensure that there is no added test burden imposed on manufacturers, we are proposing that the fuel economy values to be used to determine if a vehicle is energy-efficient are the unadjusted city, highway and combined fuel economy values obtained during the fuel economy testing required under the Energy Policy and Conservation Act of 1975 (EPCA). Under EPCA, EPA is required to determine the test methods and calculations for two major fuel economy programs: Corporate Average Fuel Economy
(CAFE)and consumer-friendly fuel economy information (city and highway estimates posted on new vehicle labels). The underlying tests specified by EPA are the same for both programs; however, the resulting city, highway, and combined fuel economy results are different. The CAFE values are based on two tests—the city test and the highway test. The test results are combined by harmonically averaging them, with city weighted 55 percent and highway weighted 45 percent. The combined city-highway fuel economy value is then put through a series of complex calculations to determine the manufacturers' average fuel economy values separately for their entire car and truck fleets. The label values for 2007 and earlier models are likewise based on the same two city and highway tests. However, the results are adjusted downward (the city by 10 percent and the highway by 22 percent), to better match a driver's real-world fuel economy experience. For 2008 and later models, EPA recently finalized new regulations removing those adjustment factors and instead requiring data from three additional tests to be included in the calculations to bring the estimates even closer to drivers' experience. (71 FR 77872, December 27, 2006). The fuel economy of 2008 and later models will not be able to be easily compared to that of earlier models. Not only would this be more complex to administer, it would create the possibility for consumer confusion in that a 2008 vehicle may not qualify whereas its identical 2007 counterpart would (or vice versa). For that reason, it is less desirable to use the label values as the basis for determining if a vehicle is “energy efficient” under the meaning of 23 U.S.C. 166. For these reasons, we are therefore proposing that the fuel economy values to be used are the unadjusted city, highway and combined values used to determine CAFE (referred to hereafter as “unadjusted” city, highway, and combined fuel economy). These values provide a more constant baseline for comparison. 2. How Is EPA Proposing To Determine a “Comparable Vehicle”? The Transportation Act did not specify what criteria EPA should use in determining what a “comparable” vehicle is. There are considerable challenges in determining a “comparable” vehicle. There are infinite parameters against which a comparison could be made. For instance, should the comparison parameters consider similar vehicle weights, similar body designs, similar power ratings, similar make/model names, similar transmission types, similar drive trains, etc. Moreover, EPA, as well as other government agencies, has described, either by regulation or by policy, so-called “comparable” vehicle classes in which vehicles are lumped together based on some sorts of similarities. For the purpose of this proposed rule, we considered three different methods to look at “comparable” vehicles. These are:
(1)A hybrid-to-gasoline vehicle comparison (the method we are proposing in this action),
(2)a grouping of vehicles into inertia weight classes as specified in the 2005 Energy Act, and
(3)a comparison to the “Best in Class”, using the comparable classes used by EPA's annual Fuel Economy Guide, which is jointly published by EPA and DOE. Further detail can be found in the Draft Technical Support Document, which has been placed in the docket for this rulemaking (EPA-HQ-OAR-2005-0173). In choosing a comparison strategy for this proposal, we considered the intent of Congress which, according to 23 U.S.C. 166, was to “provide additional incentives (including the use of HOV facilities on State and Interstate highways) for the purchase and use of hybrid and other fuel efficient vehicles” (23 U.S.C. 166(c)). We also considered the potential for lane degradation caused by allowing more vehicles in HOV facilities as determined by the number of vehicles that would qualify for the occupancy exemption under the comparison strategy. A shorter, more conservative list that highlights truly energy-efficient vehicles would help to minimize any additional vehicle volume added to HOV facilities. Based on our evaluation of each potential “comparison vehicle” methodology, we are proposing to compare hybrid-electric vehicles to their gasoline counterparts, that is, those of the same or similar make and model type, to see if the fuel economy of the hybrid had the prescribed percent increase over the gasoline model. This method only compares hybrid vehicles to gasoline vehicles, and does not compare any gasoline, diesel, or flexible-fuel vehicles to a gasoline vehicle. 5 5 Alternate fuel vehicles are considered “energy-efficient,” but not subject to this comparison criterion. This methodology appears to best reflect the intent of Congress expressed in 23 U.S.C. 166(c) and in the legislative history of this provision. 6 6 See House Report 109-203, pp. 852-53: With respect to the determination of fuel economy performance requirements for a low emission or energy efficient vehicle not meeting occupancy requirements that is propelled by on-board hybrid technologies, the conferees have agreed to accept language in the Senate-passed legislation. Under this subsection, a low emission or energy efficient vehicle propelled by hybrid technology may access the HOV lane if the EPA certifies that it has achieved not less than a 50-percent increase in city fuel economy or not less than a 25-percent increase in combined city-highway fuel economy * * *
(1)How does EPA propose to develop baseline fuel economy values for the hybrid-to-gasoline vehicle comparison methodology? In this method, hybrid vehicles would be compared to their gasoline namesake counterparts (e.g. the Ford Escape Hybrid would be compared to the Ford Escape gasoline model). However, there are some hybrids that do not have similar gasoline counterparts (e.g. the Honda Insight and the Toyota Prius). For those vehicles, EPA is proposing that the comparison be based on gasoline vehicles within the same comparable class as used EPA's annual Fuel Economy Guide, which is jointly published by EPA and DOE. The median unadjusted fuel economy of all the gasoline vehicles in that class would be determined, and then compared against the hybrid's fuel economy. This comparison would be done separately for each model year. For example, the Honda Insight is classified as a “two-seater.” For each model year, we would identify all of the “two-seater” gasoline vehicles and determine the median unadjusted city and unadjusted combined city-highway fuel economy values. These fuel economy values would form the baseline fuel economy values to be used for the Honda Insight comparison. As fuel economy can vary from year to year, these comparisons must be made separately for each model year.
(2)How is the comparison determined, based on a percent increase in vehicle fuel economy value? We are proposing the following process for making a fuel economy comparison using the hybrid-to-gasoline vehicle comparison methodology:
(1)Determine the list of all hybrid vehicles (separately for each model year) emission-certified by EPA prior to September 30, 2009.
(2)For hybrid vehicles with a similar gasoline counterpart, compare the unadjusted city and unadjusted combined city-highway fuel economy values to the similar gasoline counterpart.
(3)For hybrid vehicles with no similar gasoline counterpart, calculate the median unadjusted city and/or unadjusted combined city-highway fuel economy values for all gasoline vehicles in the same EPA comparable vehicle class and then compare the hybrid vehicle fuel economy values to the median unadjusted city fuel economy value and the unadjusted city-highway value for the comparison gasoline vehicle.
(4)Evaluate the results according to the following criteria: ○ If the candidate hybrid vehicle's city fuel economy is 50 percent greater than the city fuel economy value of its gasoline counterpart then the vehicle would qualify as energy-efficient; ○ If the candidate hybrid vehicle's combined city-highway fuel economy is 25 percent greater than the combined city/fuel economy of its gasoline counter part, then the vehicle would qualify as energy-efficient; or ○ Conversely, if the hybrid vehicles do not meet either of these required fuel economy thresholds relative to their gasoline counterparts, then the vehicle would not qualify as energy-efficient. Based on the low emission and energy-efficient vehicle criteria using the hybrid-to-gasoline vehicle comparison methodology described above, the potential lists of vehicles eligible for an HOV occupancy exemption are shown in Tables 1 and 2 below. These lists are based on the most recent certification data available to EPA through model year 2007. This list will be expanded as necessary to include additional 2007-2010 model year vehicles certified by EPA. It is also important to note that an individual state's list may differ from these lists, since states have the option to increase the stringency of the designated fuel economy percent increase values. States do not have the option to increase the emission standard stringency. Table 1.—List of Eligible Low Emission and Energy-Efficient Vehicles Using the Hybrid-to-Gasoline Vehicle Comparison Methodology MY Mfr Vehicle model Engine family Tran Fuel economy guide class Tier 2 std Unadj city FE
(mpg)City FE Inc over baseline (%) Unadj Cmb FE
(mpg)Cmb FE Inc over baseline (%) CARS 2003 Honda Civic Hybrid 3HNXV01.36CV AV Compact B5 52.6 52 56.0 75 2003 Honda Civic Hybrid 3HNXV01.36CV M5 Compact B5 50.0 59 55.7 74 2003 Honda Insight 3HNXV01.0PCE AV Two-seater B5 62.8 249 66.4 66 2004 Honda Civic Hybrid 4HNXV01.37CP AV Compact B5 52.6 50 56.0 75 2004 Honda Civic Hybrid 4HNXV01.37CP M5 Compact B5 50.0 42 55.7 74 2004 Honda Insight 4HNXV01.0NCE AV Two-seater B5 62.8 214 66.4 66 2004 Toyota Prius 4TYXV01.5MC1 AV Midsize B3 66.6 200 65.8 106 2005 Honda Civic Hybrid 5HNXV01.3YCV AV Compact B2 52.6 50 56.0 41 2005 Honda Civic Hybrid 5HNXV01.3YCV M5 Compact B2 50.0 42 55.7 40 2005 Honda Insight 5HNXV01.0XCE AV Two-seater B5 62.8 224 66.4 185 2005 Honda Accord Hybrid 5HNXV03.01B4 L5 Midsize B5 32.2 37 37.48 32 2005 Toyota Prius 5TYXV01.5MC1 AV Midsize B3 66.6 201 65.8 140 2006 Honda Civic Hybrid 6HNXV01.3XCP AV Compact B2 54.6 62 58.8 51 2006 Honda Insight 6HNXV01.0VK5 AV Two-seater B5 62.8 211 66.4 173 2006 Toyota Prius 6TYXV01.5MC1 AV Midsize B3 66.6 200 65.8 144 2007 Honda Accord Hybrid 7HNXV03.0ZMC L5 Midsize B2 31.3 37 36.3 31 2007 Honda Civic Hybrid 7HNXV01.3JCP AV Compact B2 54.6 67 58.8 51 2007 Toyota Camry Hybrid 7TYXV02.4HC1 AV Midsize B3 44.2 66 45.9 44 2007 Toyota Prius 7TYXV01.5HC1 AV Midsize B3 66.6 210 65.8 154 TRUCKS 2005 Ford Escape Hybrid 2WD 5FMXT02.31EE AV SUV B4 39.6 65 39.5 46 2005 Ford Escape Hybrid 4WD 5FMXT02.31EE AV SUV B4 36.6 78 36.7 57 2006 Ford Escape Hybrid 4WD 6FMXT02.32EE AV SUV B4 36.6 59 36.7 41 2006 Ford Escape Hybrid FWD 6FMXT02.32EE AV SUV B4 39.6 59 39.5 42 2006 Lexus RX 400H 2WD 6TYXT03.3CC1 AV SUV B3 36.8 141 36.2 96 2006 Lexus RX 400H 4WD 6TYXT03.3CC1 AV SUV B3 34.3 124 34.3 86 2006 Lexus Tribute Hybrid 4WD 6FMXT02.32EE AV SUV B4 36.6 59 36.7 41 2006 Mercury Mariner Hybrid 4WD 6FMXT02.32EE AV SUV B4 36.6 75 36.7 53 2006 Toyota Highlander Hybrid 2WD 6TYXT03.3CC1 AV SUV B3 36.8 72 36.2 45 2006 Toyota Highlander Hybrid 4WD 6TYXT03.3CC1 AV SUV B3 34.3 67 34.3 42 2007 Ford Escape Hybrid 2WD 7FMXT02.32ZE AV SUV B3 35.8 55 36.5 39 2007 Ford Escape Hybrid FWD 7FMXT02.32ZE AV SUV B3 41.1 64 40.6 45 2007 Lexus RX 400H 2WD 7TYXT03.3CC1 AV SUV B3 35.7 135 35.0 95 2007 Lexus RX 400H 4WD 7TYXT03.3CC1 AV SUV B3 34.3 126 34.3 91 2007 Mercury Mariner Hybrid 4WD 7FMXT02.32ZE AV SUV B3 35.8 55 36.5 39 2007 Toyota Highlander Hybrid 2WD 7TYXT03.3CC1 AV SUV B3 35.7 67 35.0 40 2007 Toyota Highlander Hybrid 4WD 7TYXT03.3CC1 AV SUV B3 34.3 52 34.3 32 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLES 2003 Honda Civic—CNG 3HNXV01.73W3 N/A B2 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. 2004 Honda Civic—CNG 4HNXV01.74W0 N/A B2 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. 2005 Honda Civic—CNG 5HNXV01.7BF3 N/A B2 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. 2003 Ford Crown Victoria—CNG 3FMXV04.6VP5 N/A B3 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. 2004 Ford Crown Victoria—CNG 4FMXV04.6VP5 N/A B3 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. Unless noted as a dedicated alternative fuel vehicle, all of the listed vehicles operate on gasoline, and some may also be flexible-fuel vehicles. MY = Model Year Mfr = Manufacturer Tran = Transmission type Int Wgt = Inertia Weight Class Std = Standard Unadj = Unadjusted FE = Fuel Economy Inc = Increase Cmb = Combined city-highway B = Bin For states that have adopted the California emission certification standards, based on the California LEV-II (LEV-II, ULEV-II, SULEV-II, and ZEV) emission standards for passenger vehicles and a comparison based on the hybrid-to-gasoline vehicle comparison methodology or a dedicated alternative fuel vehicle, the proposed list of vehicles eligible for the HOV occupancy exemption is as follows: Table 2.—List of California-Certified Eligible Low Emission and Energy-Efficient Vehicles Using the Hybrid-to-Vehicle Vehicle Comparison Methodology MY Mfr Vehicle model Engine family Tran Fuel economy guide class LEV-II std Unadj city FE
(mpg)City FE Inc over baseline (%) Unadj Cmb FE
(mpg)Cmb FE Inc over baseline (%) CARS 2003 Honda Civic Hybrid 3HNXV01.36CV AV Compact S2 52.6 52 56.0 45 2003 Honda Civic Hybrid 3HNXV01.36CV M5 Compact S2 50.0 59 55.7 46 2003 Honda Insight 3HNXV01.0PCE AV Two-Seater S2 62.8 249 66.4 201 2004 Honda Civic Hybrid 4HNXV01.37CP AV Compact S2 52.6 50 56.0 41 2004 Honda Civic Hybrid 4HNXV01.37CP M5 Compact S2 50.0 42 55.7 40 2004 Honda Insight 4HNXV01.0NCE AV Two-seater S2 62.8 214 66.4 177 2004 Toyota Prius 4TYXV01.5MC1 AV Midsize S2 66.6 200 65.8 139 2005 Honda Civic Hybrid 5HNXV01.3YCV AV Midsize S2 52.6 50 56.0 41 2005 Honda Civic Hybrid 5HNXV01.3YCV M5 Compact S2 50.0 42 55.7 40 2005 Honda Insight 5HNXV01.0XCE AV Compact S2 62.8 224 66.4 185 2005 Honda Accord Hybrid 5HNXV03.01B4 L5 Midsize S2 32.2 37 37.48 32 2005 Toyota Prius 5TYXV01.5MC1 AV Two-seater S2 66.6 201 65.8 140 2006 Honda Civic Hybrid 6HNXV01.3XCP AV Midsize S2 54.6 62 58.8 51 2006 Honda Insight 6HNXV01.0VK5 AV Compact S2 62.8 211 66.4 173 2006 Toyota Prius 6TYXV01.5MC1 AV Two-seater S2 66.6 200 65.8 144 2007 Honda Accord Hybrid 7HNXV03.0ZMC L5 Midsize S2 31.3 37 36.3 31 2007 Honda Civic Hybrid 7HNXV01.3JCP AV Midsize S2 54.6 67 58.8 51 2007 Toyota Camry Hybrid 7TYXV02.4HC1 AV Midsize S2 44.2 66 45.9 44 2007 Toyota Prius 7TYXV01.5HC1 AV Midsize S2 66.6 210 65.8 154 TRUCKS 2005 Ford Escape Hybrid 2WD 5FMXT02.31EE AV 4000 S2 39.6 65 39.5 46 2005 Ford Escape Hybrid 4WD 5FMXT02.31EE AV 4000 S2 36.6 78 36.7 57 2006 Ford Escape Hybrid 4WD 6FMXT02.32EE AV SUV S2 36.6 59 36.7 41 2006 Ford Escape Hybrid FWD 6FMXT02.32EE AV SUV S2 39.6 59 39.5 42 2006 Lexus RX 400H 2WD 6TYXT03.3CC1 AV SUV S2 36.8 141 36.2 96 2006 Lexus RX 400H 4WD 6TYXT03.3CC1 AV SUV S2 34.3 124 34.3 86 2006 Mazda Tribute Hybrid 4WD 6FMXT02.32EE AV SUV S2 36.6 59 36.7 41 2006 Mercury Mariner Hybrid 4WD 6FMXT02.32EE AV SUV S2 36.6 75 36.7 53 2006 Toyota Highlander Hybrid 2WD 6TYXT03.3CC1 AV SUV S2 36.8 72 36.2 45 2006 Toyota Highlander Hybrid 4WD 6TYXT03.3CC1 AV SUV S2 34.3 67 34.3 42 2007 Ford Escape Hybrid 4WD 7FMXT02.32ZE AV SUV S2 35.8 55 36.5 39 2007 Ford Escape Hybrid FWD 7FMXT02.32ZE AV SUV S2 41.1 64 40.6 45 2007 Lexus RX 400H 2WD 7TYXT03.3CC1 AV SUV S2 35.7 135 35 95 2007 Lexus RX 400H 4WD 7TYXT03.3CC1 AV SUV S2 34.3 126 34.3 91 2007 Mercury Mariner Hybrid 7FMXT02.32ZE AV SUV S2 35.8 55 36.5 39 2007 Toyota Highlander Hybrid 2WD 7TYXT03.3CC1 AV SUV S2 35.7 103 35 69 2007 Toyota Highlander Hybrid 4WD 7TYXT03.3CC1 AV SUV S2 34.3 52 34.3 32 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLES 2004 Honda Civic—CNG 4HNXV01.74W2 N/A S2 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. 2005 Honda Civic—CNG 5HNXV01.7BF4 N/A S2 DEDICATED ALTERNATIVE FUEL
(CNG)VEHICLE. Unless noted as a dedicated alternative fuel vehicle, all of the listed vehicles operate on gasoline, and some may also be flexible-fuel vehicles. MY = Model Year Mfr = Manufacturer Tran = Transmission Int Wgt = Inertia Weight Class Std = Standard Unadj = Unadjusted FE = Fuel Economy Inc = Increase Cmb = Combined city-highway S2 = SULEVII U2 = ULEVII 3. What Other Methods Did EPA Consider for Determining a “Comparable Vehicle”?
(a)Inertia Weight Class Methodology EPA also considered using inertia weight classes to determine comparable vehicles. This approach would consider all vehicles, regardless of fuel type or technology, as potentially energy-efficient, rather than just hybrid vehicles, as under the hybrid-to-gasoline vehicle comparison method. Thus, any gasoline, diesel, flexible-fuel, or hybrid vehicle could be considered energy-efficient, as long as it meets the fuel economy criteria referenced above. EPA considered this fuel-neutral approach because, while the legislative history of SAFETEA-LU indicates an intent by Congress to limit this provision to hybrid and alternative fuel vehicles, the statutory provisions enacted by Congress do not explicitly limit this option to those types of vehicles. Additionally, a fuel-neutral approach would encourage fuel efficiency for all types of vehicles, not just hybrid vehicles. On the other hand, this approach would increase the number of vehicles potentially eligible to use HOV facilities under this provision, which could create the potential for substantial HOV lane degradation. We are not proposing this method, but request comment on it. With the inertia weight class methodology, a comparable vehicle would be based on vehicle inertia weight classes, 7 which are consistent with those prescribed by the 2005 Energy Act. As the inertia weight classes are already defined in the 2005 Energy Act, 8 with an associated baseline city fuel economy value, the definition of a comparable vehicle would be based on the average fuel economy of all gasoline vehicles within the same inertia weight class for a vehicle type (car or truck). A baseline city fuel economy value and a baseline combined city-highway fuel economy value would then be used as the basis for the fuel economy comparison for each inertia weight class, separately for cars and trucks. 7 Inertia weight classes are determined by EPA regulations at 40 CFR 86.129-94. Inertia weight class is the class into which a vehicle is grouped for testing purposes based on its loaded vehicle weight (nominal empty vehicle weight plus 300 lbs. used for cars and for light-duty trucks up through 6000 lbs. GVWR) or adjusted loaded vehicle weight (average of nominal empty weight and gross vehicle weight rating used for light-duty trucks greater than 6000 lbs. GVWR). 8 § 30B.1(b)(2)(B)(i) of Internal Revenue Code, 26 U.S.C. The baseline city fuel economy value would be the unadjusted CAFE city fuel economy as described above in section B.1 for the 2002 model year, as specified in the 2005 Energy Act. EPA believes that the baseline city fuel economy in the 2005 Energy Act was derived from gasoline vehicles only (excluding any gasoline-fueled hybrids) based on reverse-calculations using a sales-weighted harmonic average. Further detail on how these calculations were performed can be found in the Draft Technical Support Document, which has been placed in the docket for this rulemaking (EPA-HQ-OAR-2005-0173). With regard to the baseline model for comparison using the inertia weight class method, we considered it most appropriate to use the model year 2002 data as a baseline for fuel economy comparisons for two reasons. First, the model year 2002 data was chosen in the 2005 Energy Act for alternative motor vehicle tax credit purposes. Second, the EPA Fuel Economy Trends Report (EPA420-R-06-011, July 2006) shows that overall fuel economy has been relatively constant over the past eight model years, except for light truck fuel economy, which has increased for two years. This increase is likely due, at least in part, to higher light-truck CAFE standards. Overall, fuel economy has been influenced by marginal changes in gasoline technology prior to the introduction of hybrid technology. 9 Thus, choosing a 2002 baseline can still be considered an appropriate baseline value for vehicle fuel economy comparisons, as it was calculated with gasoline vehicles whose overall fuel economy performance has remained somewhat constant for many years, except for the increase seen in light trucks over the last two years. Furthermore, applying one baseline for all model year comparisons would reduce time spent generating annual baselines and reduces the need to analyze annual sales data, which is often provided later in the model year than the date when a baseline would be required. Overall, EPA believes this approach would have a benefit of streamlining the implementation of the rule without impacting its effectiveness. 9 Hellman, Karl, and Robert Heavenrich. “Light-Duty Automotive Technology and Fuel Economy Trends: 1975 Through 2004” (FE Trends). EPA420-R-04-001, 2004. For the inertia weight class methodology, the following process would be used for making a fuel economy comparison:
(1)Sort the list of all potential vehicles (all model years available for sale prior to September 30, 2009) into two categories—car and light-duty truck.
(2)Sort both the car list and the light-duty truck list by inertia weight classes.
(3)Compare each vehicle's unadjusted city and unadjusted combined city-highway fuel economy values to the baseline values separately for cars and trucks.
(4)Calculate the percent increase in fuel economy for a candidate vehicle compared to the baseline for its given inertia weight class.
(5)Evaluate the results according to the following criteria: a. If the percent increase for city fuel economy is greater than 50 percent over the baseline city fuel economy for the given inertia weight class, then the vehicle would qualify as energy-efficient; b. If the percent increase for combined city-highway fuel economy is greater than 25 percent over the baseline combined city-highway fuel economy for the given inertia weight class, then the vehicle would qualify as energy-efficient; or c. Conversely, if the candidate vehicle's fuel economy does not meet these required thresholds when compared to the baseline fuel economy for that inertia weight class category of that vehicle, then the vehicle would not qualify as energy-efficient. Therefore, to qualify under the inertia weight class methodology, a candidate vehicle must achieve 25 percent or better city fuel economy or 50 percent or better combined city-highway fuel economy than the average of all vehicles in its inertia weight class. Using this approach, the lists of potentially qualifying vehicles include a few models that fail to achieve the level of the CAFE standard. Therefore, we believe that an additional criterion is necessary to determine if a vehicle is fuel efficient, not only on a relative basis, but on an absolute basis as well. Thus it is appropriate to add an additional comparison criterion, to be used as a “floor” to prevent the inclusion of vehicles which may be fuel efficient relative to others in the same inertia weight class, but which fail to have a combined fuel economy that is higher than 25 percent above the applicable CAFE car or truck standard. For example, the 2007 CAFE standard for light trucks is 22.2 miles per gallon (MPG). In order for a light truck to qualify for use in HOV facilities using the inertia weight class method, it would have to meet a minimum fuel economy of 27.75 MPG in order to qualify. We believe that this additional criterion is in keeping with the Transportation Act requirement that the combined fuel economy be 25 percent better than a comparable gasoline vehicle. A complete discussion of the inertia weight class methodology, including the list of vehicles that would qualify using this approach, can be found in the Draft Technical Support Document located in the docket for this rulemaking. EPA requests comment on using the inertia weight class methodology as a means for defining a comparable vehicle.
(b)“Best in Class” Methodology EPA also considered defining a “comparable vehicle” as the vehicle with the best fuel economy of a particular class of vehicles as defined by the annual Fuel Economy Guide, which is jointly published by EPA and DOE. This approach is not a fuel and technology neutral approach, meaning that it only considers hybrid vehicles. No gasoline, diesel, or flexible-fuel would be considered for an HOV facilities exemption using this methodology. The primary benefit of this approach is that it would result in the smallest list of eligible vehicles and thus have the least potential impact on traffic congestion. For the “best in class” methodology, the following process would be used for making a fuel economy comparison:
(1)Sort the list of all hybrid vehicles (all model years certified for sale prior to September 30, 2009) by the vehicle classes defined in the annual Fuel Economy Guide ( *http://www.fueleconomy.gov/feg/feg2000.htm* ) for each model year. The vehicle classes are defined in the Fuel Economy Guide as follows: Two-seater, Minicompact Vehicle, Subcompact Vehicle, Compact Vehicle, Midsize Vehicle, Large Vehicle, Small Station Wagon, Midsize Station Wagon, Large Station Wagon, Small Pickup Truck, Standard Pickup Truck, Passenger Van, Cargo Van, Minivan, Sport Utility Vehicle (SUV), and Special Purpose Vehicle.
(2)For each model year and each vehicle class, determine which gasoline vehicle has the highest unadjusted city and unadjusted city-highway combined fuel economy values. For example, for the 2006 model year, the compact vehicle with the highest unadjusted city and unadjusted combined city-highway fuel economy values is the Toyota Corolla. The Toyota Corolla would be the comparison vehicle for any 2006 hybrid vehicle that is classified as a compact car. In this case, the 2006 Honda Civic hybrid is the only hybrid classified as a compact car.
(3)Compare the hybrid vehicle fuel unadjusted economy values to the unadjusted city fuel economy value and the unadjusted city-highway fuel economy value for the comparison gasoline vehicle.
(4)Evaluate the results according to the following criteria: ○ If the percent increase for city fuel economy is greater than 50 percent over the baseline city fuel economy for the given specific vehicle, then the vehicle would qualify as energy-efficient; ○ If the percent increase for combined city-highway fuel economy is greater than 25 percent over the baseline combined city-highway fuel economy for the given specific vehicle, then the vehicle would qualify as energy-efficient; or ○ Conversely, if the candidate vehicle's fuel economy does not meet these required thresholds when compared to the baseline fuel economy for that class of vehicle, then the vehicle would not qualify as energy-efficient. A complete discussion of the “best in class” methodology, including the list of vehicles that would qualify using this approach, can be found in the technical support document located in the docket for this rulemaking. EPA requests comment on using the “best in class” methodology as a means for defining a comparable vehicle. C. Will All Hybrid Vehicles Qualify for the HOV Facilities Exemption?
(1)Hybrids That Do Not Meet the Low Emission Criterion As discussed in this proposal, in order for a vehicle to qualify for HOV exemptions, that vehicle must be considered both low-emission and energy-efficient. As discussed above, EPA is proposing that vehicles must be certified to comply with EPA's Tier 2 Bin 5 or cleaner emission standards (or the equivalent CARB emissions standards) in order to be considered as “low emission.” When we apply this criterion, there are some hybrid electric vehicles which do not meet the Tier 2 Bin 5 or better threshold. The 2003 Toyota Prius would not qualify for the HOV exemption because it does not meet the Tier 2 Bin 5 or better criterion for “low emission” as proposed in this action. In addition, some versions of the Honda Insight and Honda Civic Hybrid in specific model years would not qualify. To distinguish which versions of the Insight and Civic Hybrid would qualify from those that would not, it is necessary to know the EPA engine family name (also referred to as “test group name”), which is the unique EPA identifier pointing to the manufacturer's emission certification for that vehicle. This identifier is required to be printed on the emission information label located under the hood of every vehicle. Table 3 below shows the Honda Civic Hybrid and Insight models which would not comply with Tier 2 Bin 5 or better emission standards, along with their model year counterparts which are Bin 5 or better and would therefore qualify for an HOV facilities exemption. These vehicles would not qualify regardless of which fuel efficiency methodology is applied. Table 3.—Comparison of Engine Families/Test Groups That Would or Would Not Qualify Based on the Tier 2 Bin 5 or Better Criterion Model year and name Engine family/test groups that do not qualify Engine family/test group that would qualify 2003 Honda Civic Hybrid 3HNXV01.34A5 3HNXV01.36CV 2004 Honda Civic Hybrid 4HNXV01.35A6 4HNXV01.37CP 2005 Honda Civic Hybrid 5HNXV01.33A6 5HNXV01.3YCV 2003 Honda Insight 3HNXV01.01A4 3HNXV01.0PCE 2004 Honda Insight 4HNXV01.02A6 4HNXV01.0NCE 2005 Honda Insight 5HNXV01.02A6 5HNXV01.0XCE 2006 Honda Insight 6HNXV01.0YJV 6HNXV01.0VK5
(2)Hybrids That Would Not Meet the Fuel Efficiency Criteria With the hybrid-to-gasoline vehicle comparison methodology, the 2006 Honda Accord Hybrid would not qualify because its unadjusted city and unadjusted city-highway fuel economy values are not above the 25 percent and 50 percent thresholds when compared to the closest Honda Accord gasoline counterpart. In addition, the 2007 Lexus GS450H would not qualify either. Because the 2007 Lexus GS450H, which is classified as a compact car, does not have an identical gasoline counterpart, EPA compared its unadjusted city and unadjusted city-highway fuel economy to the median fuel economy values of all gasoline-fueled 2007 compact cars. When making this comparison, the GS 450H unadjusted city and unadjusted city-highway fuel economy values are not above the 25 percent and 50 percent thresholds and therefore would not qualify for an HOV facilities exemption. D. What Alternative Fuel Vehicles Could Qualify for the HOV Facilities Exemption? Alternative fuel vehicles would also qualify as energy-efficient vehicles under the HOV provisions in 23 U.S.C. 166. Congress specified that an alternative fuel vehicle must be operating on the alternative fuel in order to be eligible for an exemption from the HOV facility occupancy requirement. According to Section 166(f)(1) of 23 U.S.C. 166, the term “alternative fuel vehicle” means a vehicle that is operating on:
(1)Methanol, denatured ethanol, or other alcohols;
(2)A mixture containing at least 85 percent of methanol, denatured ethanol, and other alcohols by volume with gasoline or other fuels;
(3)Natural gas;
(4)Liquefied petroleum gas;
(5)Hydrogen;
(6)Coal derived liquid fuels;
(7)Fuels (except alcohol) derived from biological materials;
(8)Electricity (including electricity from solar energy); or
(9)Any other fuel that the Secretary prescribes by regulation that is not substantially petroleum and that would yield substantial energy security and environmental benefits, including fuels regulated under section 490 of title 10, Code of Federal Regulations (or successor regulations). There are, however, typically three different types of vehicles that might be considered alternative fuel vehicles—flexible-fuel vehicles, which can operate on a designated alternative fuel (such as 85 percent ethanol, 15 percent gasoline, known as E85), on a conventional fuel (such as gasoline), or any blend of the two; dual-fuel vehicles, which have two separate fuel systems allowing them to operate on either an alternative fuel (such as compressed natural gas) or on a conventional fuel (such as gasoline); or dedicated alternative fuel vehicles, which operate solely on a designated alternative fuel. Since the statute specifies that the vehicle must be operating on the alternative fuel to qualify for the HOV facilities exemption, and there is no way to determine that flex-fuel and dual-fuel vehicles are actually using the designated alternative fuel while they are being operated in an HOV facility, we are proposing to exclude dual-fuel and flex-fuel vehicles from the HOV exemption as “alternative fuel” vehicles. While the computer systems on flex-fuel vehicles are calibrated to operate in different manners depending on what type of fuel the vehicle is operating, a state official trying to enforce the HOV facility exemptions would not be able to visually determine which fuel a flexible-fuel or dual-fuel vehicle is operating on at any given time. Since current enforcement of HOV requirements relies on vehicle labels that can be easily viewed from a distance, verifying that a vehicle is operating on a flexible fuel at any given time would require a more detailed (and potentially traffic-disrupting) interaction between enforcement officials and the driver, such as requiring a receipt showing recent proof of purchase of the alternative fuel. It is also important to note that the actual usage rate of an alternative fuel in a flexible or dual-fuel vehicle is estimated at somewhat less than one percent. 10 Furthermore, while there are around five million flexible-fuel vehicles on the road today, the majority of alternative fuel refueling stations are located in the midwestern states, while the majority of HOV facilities reside in urban areas of Eastern and Western states, making it even more unlikely that these vehicles would actually be using the alternative fuel while in the HOV facilities. There is a national effort underway to increase the availability of alternative fueling stations, especially E85, but it is unlikely that the numbers will increase significantly before the expiration of these HOV exemption provisions. 10 National Highway and Traffic Safety Administration. “Analysis of the Effects of on Energy Conservation and the Environment.” *http://www.nhtsa.gov/cars/rules/rulings/CAFE/alternativefuels/analysis.htm* . Therefore, to ensure the enforceability of the HOV occupancy exemption, this notice proposes to allow only dedicated alternative fuel vehicles to be eligible under the “energy-efficient” provision, provided that they also meet the proposed minimum “low-emission” criteria of Tier 2 Bin 5 or cleaner, as described in section II.A.1 above. The dedicated alternative fuel vehicles that qualify are show above in Tables 1 and 2. E. How Will EPA Make Available the List of Eligible Vehicles? EPA is proposing to annually update the list of vehicles which it certifies would be eligible for exemption from the HOV facility requirement based on the low emission and energy-efficient requirements. This list of eligible vehicles would be provided to the Department of Transportation, which is responsible for implementation of HOV facilities, including these new HOV exemption provisions. EPA would also consider the most appropriate way to make the information available to the general public including posting the list on EPA's and DOT's web sites and/or publishing a notice in the **Federal Register** . It is important to note that while states have the flexibility to incorporate this HOV occupancy exemption for low emission and energy-efficient vehicles into their HOV facility programs, they are not required to offer it. In addition, because states have the option to increase the stringency of the designated fuel economy percent increase values, an individual state's list may differ from the list of eligible vehicles made available by EPA. Therefore, a vehicle on EPA's list may not qualify in one or more states depending on how DOT and the states choose to implement these regulations. Vehicle owners interested in the HOV facilities exemption must consult with their state and local transportation authorities to ensure that a particular vehicle qualifies in his or her particular state. F. What Labeling Requirements Is EPA Proposing for Low Emission and Energy-Efficient Vehicles? Under 23 U.S.C. 166(e)(1), EPA must supply requirements for labeling low emission and energy-efficient vehicles that are eligible for the HOV occupancy exemption. To date, there are 22 states (AZ, CA, CO, CT, FL, GA, HI, IL, MA, MD, MN, NC, NJ, NY, NV, OR, PA, TN, TX, UT, VA, and WA) in addition to Washington DC with existing HOV facilities. Under TEA-21 (Pub. L. 105-178, June 9, 1998), states were authorized to temporarily allow single-occupant clean fuel (i.e., alternative fuel) vehicles to use HOV facilities. As a result, many states already have labels. Label formats include decals and license plates, and these labels are used to identify the vehicle as eligible for the HOV occupancy exemption. An example of California's 2005 decal is depicted in Figure 1. This decal is one of four California decals placed on a vehicle and is color-coded to represent either an alternative fuel (white) or hybrid vehicle (yellow). The sticker has a box where a vehicle identification or registration number is located (“XXXXXXXX” in Figure 1). This number links the vehicle to the decal so that decals cannot be transferred from vehicle to vehicle. Since a vehicle that does not meet the minimum occupancy requirements for use in HOV facilities must have a special designation, the decal registration number provides the state with a method for tracking how many vehicles have qualified for use in HOV facilities. In addition, these existing formats are important for each state's ability to enforce the occupancy exemption allowance of vehicles in its HOV facilities. EP24MY07.000 We are proposing that vehicles allowed in the HOV facilities which do not meet the minimum occupancy requirement be labeled to identify this special occupancy exemption. We are also proposing to allow states to use their existing decals or license plates, provided the format requires the vehicle to be registered within the state of use. Other formats may also be deemed appropriate by the Department of Transportation if they meet all labeling requirements. We are not proposing to require a single standardized label for a number of reasons. First, EPA does not believe that a federally imposed label would be appropriate, since 23 U.S.C. 166 does not require states to allow low emission and energy-efficient vehicles that do not meet the established occupancy requirements in their HOV facilities. Thus, the requirements for labeling vehicles need to be limited to locales where they are eligible for use in HOV facilities. Moreover, since 23 U.S.C. 166 allows states to increase the stringency of the fuel economy comparison criteria, thereby decreasing the Federal list of eligible vehicles to use HOV facilities, states need flexibility to label only the eligible vehicles, as opposed to labeling all federally eligible vehicles. Second, since certain states already have labeling methods, they have a developed knowledge and local experience enforcing HOV facilities based on their current labeling method. As a result, it would be potentially time consuming and costly to require states to revise or replace any current labeling method. It would also place an unnecessary inconvenience to vehicle owners to have to change labels. Third, the most important purpose of the label is to facilitate a state's ability to enforce proper use of its HOV facilities, as well as monitor any degraded operational performance, by ensuring that only eligible low emission and energy-efficient vehicles are permitted in that state's HOV facilities. Thus, the format for a label must provide flexibility for each state to adopt what it believes is most enforceable. This notice proposes that states would be responsible for printing and/or distributing the labels and, as a result, states could charge a registration fee for issuing a label to an owner. In addition, states would be responsible for tracking the labels by linking each label to a specific vehicle, through a registration number such as that depicted on Figure 1 or by the license plate number on license plate formats. States would have to include information on the label that distinguishes a vehicle as low emission and as energy-efficient; wording such as that on California's decal (such as “Clean Air Vehicle”) in addition to color coding to distinguish between alternative fuel and meeting fuel economy requirements would be deemed acceptable. Thus options that states may want to consider for designating a vehicle as an eligible low emission and energy-efficient vehicle may include, but are not limited to, wording or color coding. EPA requests comment on how states with HOV facilities that border other states with HOV facilities (e.g. Virginia and Maryland), would address implementation and enforcement of the HOV facilities exemption. In summary, with respect to vehicle labeling requirements, this action proposes that: • Low emission and energy-efficient vehicles would be required to be labeled for the use in HOV facilities with easily visible labels for enforcement purposes; • Labels already implemented by States would be acceptable for continued use. Any state with an HOV facility that does not have an existing label would be required to develop one based on the formats already accepted or create a new format which includes all proposed requirements and subject to approval by the Department of Transportation; • Labels have a registration number that would link the label to the particular vehicle so that labels could not be transferred; • States are responsible for printing and/or distributing the labels; • Labels easily identify low emission and energy-efficient vehicles that are exempted from the HOV occupancy requirements and therefore permitted to use HOV facilities, based on factors such as, location, color, and wording that designates the vehicle as low emission and energy-efficient; and • States must include an expiration date on their labels. We believe it would be most appropriate for states to develop labels for purposes of identifying vehicles that qualify to be used in HOV facilities. However, we are seeking comment on the potential use of a federally-developed labeling program. By way of example, EPA has developed a voluntary “SmartWay” program that includes a variety of ways to reduce greenhouse gas and air pollution across a number of different industry sectors. While the program success to date has primarily been in the heavy-duty sector, SmartWay criteria have been established to designate light-duty vehicles that are environmental leaders, in terms of greenhouse gas and air pollution. There are two stringency levels for SmartWay vehicles: SmartWay and SmartWay Elite. Currently, these designations are used only on EPA's Green Vehicle Guide web site, which is targeted at car-buyers. The SmartWay logo used is shown in Figure 2 below. EP24MY07.001 There are currently no “decals” or “stickers” to place on vehicles, nor has EPA established guidelines to car makers to do so. However, if EPA were to specify a format, the SmartWay logo could potentially serve this purpose. EPA seeks comment on the usefulness and feasibility of a permanent federal SmartWay label on eligible vehicles as a potential component of the HOV labeling requirement. G. What Impacts Are Associated With This Rulemaking? The main impact associated with this rulemaking is the impact consistent with the Congressional intent to provide non-financial incentives to increase the purchase of hybrids and other fuel efficient vehicles (23 U.S.C. 166(c)) as an alternative to higher emitting and less fuel efficient vehicles. There is some evidence supporting Congress' intent that this incentive would help increase interest in purchasing low emission and fuel efficient vehicles. For instance, in the State of Virginia, the HOV allowance for hybrid-electric vehicles that do not meet the established occupancy requirement proved to increase the use of hybrids by threefold from 2003 to 2004. 11 In Virginia, for 2004, an increase of 4300 hybrid vehicles means a reduction in carbon dioxide of 430-1720 lbs. per mile. Even after the occupancy exemption for low emission and energy-efficient vehicles in HOV facilities expires in September 2009, the benefit of introducing these vehicles into each state's fleet remain due to the improved fuel efficiency. Thus, 23 U.S.C. 166 has predetermined that there are benefits to this allowance. There are no foreseen adverse economic or air quality impacts associated with providing a comparison methodology through this rulemaking, as described below. 11 Second Report of the High Occupancy Vehicle Enforcement Task Force, January 4, 2005, *http://www.vdot.virginia.gov/infoservice/news/newsrelease.asp?ID=NOVA-NR05-02.* 1. What Are the Economic Impacts? There are no anticipated economic impacts of this proposal as there are no associated costs. The HOV exemption for low emission and energy-efficient vehicles is an optional exemption. 23 U.S.C. 166 is explicit that states are not required to implement this exemption, but may voluntarily choose to implement this exemption. Thus, there are no required costs for any state to implement an HOV exemption. While states that voluntarily choose to implement the HOV facility exemption are responsible for ensuring that HOV facilities do not become overcrowded; enforcing the use of HOV facilities by the exempted vehicles; and issuing labels for the vehicles, there are compensation mechanisms in place. For instance, states could charge for the label, and enforcement provisions can result in collected fines. Moreover, as 23 U.S.C. 166 prescribed, states have authority to charge a toll for low emission and energy-efficient vehicles that do not meet the occupancy requirement in HOV facilities. 2. What Are the Congestion Impacts on HOV Facilities? Since there are relatively few HOV facilities that currently allow environmentally-friendly vehicles, data on the potential impact of hybrid vehicles on HOV facilities is limited. The best publicly available information comes from a report by the Virginia Department of Transportation's High-Occupancy Vehicle Enforcement Task Force dated January 4, 2005. This report illustrates that the growth in the number of clean special fuel license plates issued in Virginia has increased significantly since hybrid vehicles became available. In fall 2003, hybrid vehicles accounted for between two percent and 12 percent of the peak-period volumes in the HOV lanes in northern Virginia. In the fall of 2004, hybrid vehicles accounted for between 11 percent and 17 percent of vehicles in the I-95 HOV lanes during the three-hour morning peak-period. The actual number of hybrids during the morning peak period ranged from 844 to 1,422 and the corresponding total vehicle volumes in the HOV lane ranged from 7,994 to 8,450. While we do not have more current data, we would expect that these percentages have continued to grow over the last two years. The Task Force report concluded that, “The rapid growth in hybrids has helped push the I-95 HOV lanes beyond the recommended HOV operating capacity, which is 1,500 to 1,800 vehicles per lane, per hour. The Task Force recommends that only the cleanest hybrid vehicles be allowed to use the HOV lanes and that the current hybrid exemption from HOV restrictions expire in 2006, as provided in the current Virginia law.” 12 Subsequent to the report, Virginia did not let the hybrid exemption expire, but instead capped the number of hybrid vehicle plates. 12 Second Report of the High Occupancy Vehicle Enforcement Task Force, January 4, 2005, *http://www.vdot.virginia.gov/infoservice/news/newsrelease.asp?ID=NOVA-NR05-02.* For demonstration purposes, EPA has also estimated the potential number of vehicles that are projected to be available for sale nationwide in the 2007 model year for each of the comparable vehicle methodologies described above (see Table 4 below). Table 4.—Potential Number of Eligible Vehicles Based on Nationwide Sales for Each Vehicle Comparison Methodology Model year Hybrid-to- Gasoline comparison Inertia weight comparison Hybrid-to-“Best in Class” comparison 2003 33593 33593 1011 2004 71334 71334 48513 2005 105505 238424 79773 2006 213338 328250 124536 2007 326245 665157 147583 Total 750015 1336758 401416 These values include actual sales data whenever it is available. In cases where actual sales data is unavailable, we used projected sales data that are provided to EPA by each manufacturer. In addition, these values reflect nationwide sales data. Without state by state vehicle registration data, it is not possible to estimate with any accuracy the actual vehicles that are used in areas with HOV occupancy exemptions. 3. What Are the Other Impacts? There are no associated adverse air quality impacts of this proposal. 23 U.S.C. 166 requires EPA to codify a procedure for certifying low emission and energy-efficient vehicles and places the responsibility on individual states to determine if an HOV exemption for low emission and energy-efficient vehicles benefits or impedes the air quality goals of that state. As a result, 23 U.S.C. 166 provides mechanisms to ensure that such an exemption does not adversely impact air quality. First, 23 U.S.C. 166 designates the HOV exemption for low emission and energy-efficient vehicles as a voluntary program. Thus, a state chooses whether this exemption meets its needs or not. Second, 23 U.S.C. 166 allows states to increase the fuel economy thresholds per the energy-efficient designation in order to further minimize the number of vehicles which qualify as low emission and energy-efficient, thereby managing the number of exempted vehicles using the limited excess capacity of HOV facilities. Third, 23 U.S.C. 166 requires states that choose to implement this HOV exemption to ensure that the HOV facilities are not overburdened by the addition of exempted vehicles and provides minimum operating speed guidelines for assessing HOV facility degradation. Finally, EPA is proposing regulations to ensure that only the “cleanest” of the Tier 2 fleet qualify as “low emission” and the minimum number of truly energy-efficient vehicles qualify as “energy-efficient.” Therefore, these four safeguards form our belief that there would be no adverse environmental impacts due to the HOV exemption for low emission and energy-efficient vehicles. III. Request for Comments Although EPA requests comments on all aspects of this proposal, we are specifically requesting comment on the following topics proposed in this action: • Eligibility for a low emission vehicle based on Tier 2 Bin 5 or cleaner for light-duty vehicles, or comparable California LEV-II or cleaner for passenger vehicles to comply with the 23 U.S.C. 166 Tier 2 requirements. • Use of a hybrid-to-gasoline vehicle comparison methodology to determine vehicle eligibility. • Use of a “best in class” methodology to determine vehicle eligibility. • Eligibility for an energy-efficient vehicle based on operating on an alternative fuel limited to dedicated alternative fuel vehicles only. • Necessity of a Federal versus state-by-state labeling system. • Proposed labeling requirements, as well as any necessary enforcement provisions that should be required on a label. The following topics were not proposed in this action, but EPA is specifically requesting comment on them: • Use of an inertia weight class methodology to determine vehicle eligibility. • For the inertia weight class methodology, the usefulness of requiring an additional criterion that any vehicle which meets the low emissions and criteria must also have an unadjusted combined fuel economy that is at least 25 percent higher than the applicable car or truck CAFE standard. • The availability of technology or other methodology that can demonstrate when a flexible-fuel vehicle is operating on an alternative fuel versus a conventional fuel. • Data indicating the extent to which flexible-fuel vehicles are operating on the alternative fuel in an area or region. IV. What Are the Opportunities for Public Participation? We request comment on all aspects of this proposal. This section describes how you can participate in this process. We are opening a formal comment period by publishing this document. We will accept comments for the period indicated under DATES above. If EPA receives requests to present oral testimony, a public hearing will be scheduled. Information regarding the timing for requesting a public hearing is indicated under DATES above. Your comments will be most useful if you include appropriate and detailed supporting rationale, data, and analysis. If you disagree with parts of the proposal, we encourage you to suggest and analyze alternate approaches to meeting the goals described in this proposal. You should send all comments, except those containing proprietary information, to our Docket (see ADDRESSES ) before the end of the comment period. A. Copies of This Proposal and Other Related Information 1. Docket EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OAR-2005-0173. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include confidential business information
(CBI)or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing by referencing Docket No. EPA-HQ-OAR-2005-0173 (see ADDRESSES ). You may submit comments electronically, by mail, or through hand delivery/courier as described below. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked late. EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Section IV.C. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute. 2. Electronic Access You may access this **Federal Register** document electronically through the EPA Internet under the **Federal Register** listings at *http://www.epa.gov/fedrgstr/.* An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at *http://www.epa.gov/edocket/* to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select search, then key in the appropriate docket identification number. Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket. Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff. B. Public Hearing Anyone wishing to present testimony about this proposal at the public hearing (see DATES ) should notify the general contact person (see FOR FURTHER INFORMATION CONTACT ) no later than five days prior to the day of the hearing. The contact person should be given an estimate of the time required for the presentation of testimony and notification of any need for audio/visual equipment. Testimony will be scheduled on a first come, first served basis. A sign-up sheet will be available at the registration table the morning of the hearing for scheduling those who have not notified the contact earlier. This testimony will be scheduled on a first come, first served basis following the previously scheduled testimony. EPA requests that approximately 50 copies of the statement or material to be presented be brought to the hearing for distribution to the audience. In addition, EPA would find it helpful to receive an advance copy of any statement or material to be presented at the hearing at least one week before the scheduled hearing date. This is to give EPA staff adequate time to review such material before the hearing. Such advance copies should be submitted to the contact person listed. The official records of the hearing will be kept open for 30 days following the hearing to allow submission of rebuttal and supplementary testimony. All such submissions should be directed to Docket No. EPA-HQ-OAR-2005-0173 (see ADDRESSES ). The hearing will be conducted informally, and technical rules of evidence will not apply. A written transcript of the hearing will be placed in the above docket for review. Anyone desiring to purchase a copy of the transcript should make individual arrangements with the court reporter recording the proceedings. V. What Are the Administrative Requirements for This Proposed Rule? A. Executive Order 12866: Regulatory Planning and Review Under Executive Order
(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This action does not require any state to implement the provisions of this action. In addition, this action does not require that any information is collected, but rather supplies guidance and a comparison methodology for generating a list of eligible low emission and energy-efficient vehicles that are exempted from the HOV occupancy requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposal on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule on small entities, EPA certifies that this action would not have a significant economic impact on a substantial number of small entities. This proposed rule would not impose any requirements on small entities. This action proposes regulations for defining low emission and energy-efficient vehicles and for labeling these vehicles in HOV facilities, according to the provisions defined by Congress in SAFETEA-LU. As also prescribed by Congress, these definitions and comparison strategies are implemented optionally by the states; there is no requirement that a state would have to allow low emission and energy-efficient vehicles to use the HOV facilities. Furthermore, this action proposes a flexible format for labeling vehicles, so as to minimize the burden on states with existing HOV programs and labeling strategies. We have therefore concluded that this proposed rule would not impact, or would have a neutral impact on, burden for all small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This proposal contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments or the private sector. This action proposes to implement mandates specifically and explicitly set forth by the Congress in SAFETEA-LU without the exercise of any policy discretion by EPA, and the proposal would impose no enforceable duty on any state, local or tribal governments or the private sector. This proposal provides clarification on determining whether a vehicle is low emission and energy-efficient and a comparison strategy for designating a comparable vehicle for performing fuel economy percent increase calculations. This action was prescribed by Congress, and SAFETEA-LU is explicit that states are not required to adopt these provisions. Instead, participation in this program would be voluntary and would allow voluntary measures to increase the stringency of the comparison strategy to meet individual state's needs. EPA has determined that this proposal does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. These provisions are applicable for states with existing HOV facilities and do not require any state to install HOV facilities. In addition, the labeling requirements have been proposed as flexible in order to avoid causing expenditures on a new method of labeling vehicles in states where labeling systems already exists. Thus, this proposal is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The provisions in this proposed rule do not require that a state implement them, and the stringency of the provisions can be optionally increased. This proposed rule defines requirements that could be used to implement HOV occupancy exemptions for low emission and energy-efficient vehicles, but provides ample flexibility for states to decide whether or not to implement and/or whether or not to increase stringency. Thus, Executive Order 13132 does not apply to this proposal. Although section 6 of Executive Order 13132 does not apply to this proposal, EPA did consult with representatives of state and local governments in developing it. The conversations resulted in requests for flexibility in labeling and allowing states to determine any implementation or enforcement provisions. This action would allow both. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule would not have tribal implications, as specified in Executive Order 13175. This proposed rule would apply to state highways with HOV facilities, and involves state governments and/or transportation entities if a state chooses to implement the rule. Thus, Executive Order 13175 does not apply to this proposed rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This proposed rule is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule is the result of a directive by 23 U.S.C. 166 to codify the certification of low emission and energy-efficient vehicles. The sense of Congress is to “provide additional incentives (including the use of high occupancy vehicle facilities on State and Interstate highways) for the purchase and use of hybrid and other fuel efficient vehicles, which have been proven to minimize air emissions and decrease consumption of fossil fuels” (Section 1121(c) of 23 U.S.C. 166). This intent demonstrates Congress's belief that this rule would not have adverse effects on the supply, distribution, or use of energy. In fact, the HOV occupancy exemption provision for “low emission and energy-efficient” vehicles should have a positive effect, reducing the effect on the supply, distribution, or use of energy by encouraging the purchase and use of fuel efficient vehicles. Thus, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation. VI. What Are the Statutory Provisions and Legal Authority for This Proposed Rule? Statutory authority for this action is found in 23 U.S.C. 166. This action is being proposed under the administrative and procedural provisions of the Administrative Procedures Act, 5 U.S.C. 553. List of Subjects in 40 CFR Part 601 Environmental protection, Administrative practice and procedure, Fuel economy, Reporting and recordkeeping requirements. Dated: May 16, 2007. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, title 40 Chapter I of the Code of Federal Regulations is proposed to be amended by adding a new part 601 as follows: PART 601—QUALIFICATION CRITERIA FOR LOW EMISSION AND ENERGY-EFFICIENT VEHICLES Sec. 601.1 General applicability. 601.2 Definitions. 601.3 Abbreviations. 601.4 Criteria for qualifying as a low emission and energy-efficient vehicle. 601.5 Criteria for qualifying as a low emission vehicle. 601.6 Criteria for qualifying as an energy-efficient vehicle. 601.7 Criteria for determining a comparable gasoline-fueled vehicle based upon the unadjusted city fuel economy. 601.8 Criteria for determining a comparable gasoline-fueled vehicle based upon the unadjusted combined city-highway fuel economy. 601.9 How to determine if a candidate vehicle meets the “energy-efficient” criteria based on fuel economy. 601.10 Certification requirements. 601.11 Labeling requirements for low emission and energy-efficient vehicles. Authority: 23 U.S.C. 166. § 601.1 General applicability. The provisions of this part are applicable to 2002 and later model year vehicles that may qualify for use in high occupancy vehicle facilities in states that elect to allow such use. These provisions expire on September 30, 2009. § 601.2 Definitions. Any terms defined in 40 CFR parts 86 and 600 and not defined in this part shall have the meaning given them in §§ 86.1803 and 600.002 of this chapter. *Alternative fuel vehicle* means a vehicle that is operating on—
(1)Methanol, denatured ethanol, or other alcohols;
(2)A mixture containing at least 85 percent of methanol, denatured ethanol, and other alcohols by volume with gasoline or other fuels;
(3)Natural gas;
(4)Liquefied petroleum gas;
(5)Hydrogen;
(6)Coal derived liquid fuels;
(7)Fuels (except alcohol) derived from biological materials;
(8)Electricity (including electricity from solar energy); or
(9)Any other fuel that the Secretary of Transportation prescribes by regulation that is not substantially petroleum and that would yield substantial energy security and environmental benefits, including fuels regulated under section 490 of title 10, Code of Federal Regulations (or successor regulations). *Unadjusted city fuel economy* means the model type city fuel economy as calculated in 40 CFR 600.207-93. *Unadjusted combined city-highway fuel economy* means the model type combined fuel economy as calculated in 40 CFR 600.207-93. § 601.3 Abbreviations. The abbreviations of 40 CFR parts 86 and 600 also apply to this part. The abbreviations in this section apply to this part only. *HOV* means High Occupancy Vehicle. § 601.4 Criteria for qualifying as a low emission and energy-efficient vehicle. In order to meet the criteria for being certified as a low emission and energy-efficient vehicle under this part, a vehicle must meet the criteria for qualifying as a low emission vehicle under § 601.5 and must meet the criteria for qualifying as an energy-efficient vehicle under § 601.6. A state that elects to allow low emission and energy-efficient vehicles to use HOV facilities may require that a vehicle meet a level of comparative percentage increase in fuel economy that is greater than the percentages in § 601.6(b) and
(c)in order to qualify as a low emission and energy-efficient vehicle in that state. § 601.5 Criteria for qualifying as a low emission vehicle. Light-duty vehicles and light-duty trucks up to 8500 lbs. GVWR must be certified by the U.S. Environmental Protection Agency as meeting emission standards that are as or more stringent than the Tier 2 Bin 5 emission standard as specified in Table S04-1 of 40 CFR 86.1811-04. § 601.6 Criteria for qualifying as an energy-efficient vehicle. Light-duty vehicles and light-duty trucks up to 8500 lbs. GVWR must be certified by the U.S. Environmental Protection Agency as meeting the criteria of either paragraph
(a)or
(b)of this section:
(a)It is an alternative fuel vehicle. This does not include flexible-fuel or dual-fuel vehicles.
(b)It meets one of the unadjusted fuel economy criteria in this paragraph:
(1)The unadjusted city fuel economy of the vehicle must be at least 50 percent higher than the city fuel economy of a comparable gasoline-fueled vehicle, as determined in § 601.7; or
(2)The unadjusted combined city-highway fuel economy of the vehicle must be at least 25 percent higher than the unadjusted combined city-highway fuel economy of a comparable gasoline-fueled vehicle, as determined in § 601.8. § 601.7 Criteria for determining a comparable gasoline-fueled vehicle based upon unadjusted city fuel economy.
(a)For hybrid vehicles with a similar gasoline counterpart (e.g. same make/model), the Administrator will compare the unadjusted city fuel economy value as determined under 40 CFR 600.207-93 of a candidate hybrid vehicle, to the unadjusted city fuel economy value of the similar gasoline counterpart.
(b)For hybrid vehicles with no similar gasoline counterpart, the Administrator will determine the candidate vehicle by calculating the median unadjusted city fuel economy values for all gasoline vehicles in the same comparable vehicle class as defined in EPA's annual Fuel Economy Guide, which is jointly published by EPA and DOE. The Administrator will then compare the unadjusted city fuel economy value of the candidate hybrid vehicle, as determined under 40 CFR 600.207-93, to the median unadjusted city fuel economy value for the comparison gasoline vehicle in same vehicle class. § 601.8 Criteria for determining a comparable gasoline-fueled vehicle based upon the unadjusted combined city-highway fuel economy.
(a)For hybrid vehicles with a similar gasoline counterpart (e.g. same make/model), the Administrator will compare the unadjusted combined city-highway fuel economy value of the candidate hybrid vehicle, as determined under 40 CFR 600.207-93, to the unadjusted combined city-highway fuel economy value of the similar gasoline counterpart.
(b)For hybrid vehicles with no similar gasoline counterpart, the Administrator will determine the candidate vehicle by calculating the median unadjusted combined city-highway fuel economy values for all gasoline vehicles in the same comparable vehicle class as used in the annual Fuel Economy Guide published jointly by EPA and the Department of Energy. The Administrator will then compare the unadjusted combined city-highway fuel economy value of the candidate hybrid vehicle, as determined under 40 CFR 600.207-93, to the median unadjusted combined city-highway fuel economy value for the comparison gasoline vehicle in same vehicle class. § 601.9 How to determine if a candidate vehicle meets the “energy-efficient” criteria based on fuel economy.
(a)The Administrator will compare the candidate vehicle's unadjusted city fuel economy and unadjusted combined city-highway fuel economy to the city fuel economy values and combined-city highway fuel economy values for the applicable gasoline comparable vehicle as described in §§ 601.7 and 601.8.
(b)A candidate vehicle qualifies as energy-efficient if it meets either of the following fuel economy criteria:
(1)The percent increase for the unadjusted city fuel economy is greater than 50 percent over the baseline city fuel economy of the comparable vehicle; or
(2)The percent increase for the unadjusted combined city-highway fuel economy is greater than 25 percent over the baseline combined city-highway fuel economy of the comparable vehicle. § 601.10 Certification requirements. The Administrator will annually certify those vehicles that qualify as low emission and energy-efficient vehicles, as determined in § 601.4 and provide a list of certified vehicles to the Department of Transportation. § 601.11 Labeling requirements for low emission and energy-efficient vehicles.
(a)States that elect to allow low emission and energy-efficient vehicles to use HOV facilities must label low emission and energy-efficient vehicles for usage in HOV facilities in a manner that allows state enforcement officials to easily identify these vehicles.
(b)States with existing programs to allow the use of low emission and energy-efficient vehicles in HOV facilities may continue to use the labels they have designed for use in such programs, as long as they meet the other requirements of this section. States without labels must develop labels based on existing formats, i.e., decals or license plates, and the criteria in § 601.11.
(c)States are responsible for printing and/or distributing the labels and may charge a registration fee for issuing a label to an owner.
(d)Labels must identify the vehicle as low emission and energy-efficient by such means as specific wording and/or color coding.
(e)Labels must contain an identifier that is unique to the specific vehicle such that they could not be transferred. [FR Doc. E7-9821 Filed 5-23-07; 8:45 am] BILLING CODE 6560-50-P 72 100 Thursday, May 24, 2007 Notices DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration Request for Extension and Revision of a Currently Approved Information Collection AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Notice and request for comments. SUMMARY: This notice announces our intention to request a three year extension of a currently approved information collection in support of the reporting and recordkeeping requirements under the Clear Title program. This approval is required under the Paperwork Reduction Act. DATES: We will consider comments that we receive by July 23, 2007. ADDRESSES: We invite you to submit comments on this notice. You may submit comments by any of the following methods: • *E-Mail:* Send comments via electronic mail to *comments.gipsa@usda.gov.* • *Mail:* Send hardcopy written comments to Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • *Fax:* Send comments by facsimile transmission to:
(202)690-2755. • *Hand Delivery or Courier:* Deliver comments to: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. *Instructions:* All comments should make reference to the date and page number of this issue of the **Federal Register** . *Background Documents:* Information collection package and other documents relating to this action will be available for public inspection in the above office during regular business hours. *Read Comments:* All comments will be available for public inspection in the above office during regular business hours (7 CFR 1.27(b)). FOR FURTHER INFORMATION CONTACT: For information regarding the information collection activities and the use of the information, contact Catherine Grasso at, (202)720-7201 or *Catherine.M.Grasso@usda.gov.* SUPPLEMENTARY INFORMATION: The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers the Clear Title program for the Secretary of Agriculture. The Clear Title program is authorized by Section 1324 of the Food Security Act of 1985 and requires that States implementing central filing system for notification of liens on farm products must have such systems certified by the Secretary of Agriculture. The regulations implementing the Clear Title program are contained in 9 CFR part 205, Clear Title-Protection for Purchasers of Farm Products. Nineteen States currently have certified central filing systems. *Title:* “Clear Title” Regulations to implement section 1324 of the Food Security Act of 1985 (7 U.S.C. 1631). *OMB Number:* 0580-0016. *Expiration Date of Approval:* November 30, 2007. *Type of Request:* Extension and revision of a currently approved information collection. *Abstract:* The information is needed to carry out the Secretary's responsibility for certifying a State's central filing system under section 1324 of the Food Security Act of 1985. Section 1324 of the Food Security Act of 1985 enables States to establish central filing systems to notify potential buyers, commission merchants, and selling agents of security interests (liens) against farm products. The Secretary of Agriculture has delegated authority to GIPSA for certifying the systems. Nineteen States have certified central filing systems. The purpose of this notice is to solicit comments from the public concerning our information collection. *Estimate of Burden:* Public reporting and recordkeeping burden for this collection of information is estimated to be 5 to 40 hours per response (amendments to certified systems require less time, new certifications require more time). *Respondents (Affected Public):* States seeking certification of central filing systems to notify buyers of farm products of any mortgages or liens on the products. *Estimated Number of Respondents:* Less than 1 per year. Since 2004, one State requested an amendment to its certification. However, a change to the Clear Title enabling legislation and subsequent change in the regulations allowing States to use an approved unique identifier number other than a social security number may result in a larger number of amendments in the next several years. *Estimated Number of Responses per Respondent:* 1. *Estimated Total Annual Burden on Respondents:* 5-40 hours. As required by the Paperwork Reduction Act (44 U.S.C. 3506(c)(2)(A)) and its implementing regulations (5 CFR 1320.8(d)(1)(i)), we specifically request comments on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden on the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All responses to this notice will be summarized and included in the request for the Office of Management and Budget approval. All comments will also become a matter of public record. Authority: 44 U.S.C. 3506 and 5 CFR 1320.8. James E. Link, Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. E7-10050 Filed 5-23-07; 8:45 am] BILLING CODE 3410-KD-P DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration Request for Extension and Revision of a Currently Approved Information Collection AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Notice and request for comments. SUMMARY: This notice announces our intention to request a three year extension and revision of a currently approved information collection in support of the reporting and recordkeeping requirements under the Packers and Stockyards Act. This approval is required under the Paperwork Reduction Act. DATES: We will consider comments that we receive by July 23, 2007. ADDRESSES: We invite you to submit comments on this notice. You may submit comments by any of the following methods: • *E-Mail:* Send comments via electronic mail to * comments.gipsa@usda.gov.* • *Mail:* Send hard copy written comments to Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • *Fax:* Send comments by facsimile transmission to:
(202)690-2755. • *Hand Delivery or Courier:* Deliver comments to: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All comments should make reference to the date and page number of this issue of the **Federal Register** . *Background Documents:* Information collection package and other documents relating to this action will be available for public inspection in the above office during regular business hours. *Read Comments:* All comments will be available for public inspection in the above office during regular business hours (7 CFR 1.27(b)). FOR FURTHER INFORMATION CONTACT: For information regarding the information collection activities and the use of the information, contact Catherine Grasso at
(202)720-7201 or *Catherine.M.Grasso@usda.gov.* SUPPLEMENTARY INFORMATION: The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers and enforces the Packers and Stockyards Act of 1921, as amended and supplemented (7 U.S.C. 181-229) (P&S Act). The P&S Act prohibits unfair, deceptive, and fraudulent practices by livestock market agencies, dealers, stockyard owners, meat packers, swine contractors, and live poultry dealers in the livestock, poultry, and meatpacking industries. *Title:* Packers and Stockyards Programs Reporting and Recordkeeping Requirements. *OMB Number:* 0580-0015. *Expiration Date of Approval:* November 30, 2007. *Type of Request:* Extension and revision of a currently approved information collection. *Abstract:* The P&S Act and the regulations under the P&S Act authorize the collection of information for the purpose of enforcing the P&S Act and regulations and to conduct studies as requested by Congress. The information is needed for GIPSA to carry out its responsibilities under the P&S Act. The information is necessary to monitor and examine financial, competitive, and trade practices in the livestock, meat packing, and poultry industries. The purpose of this notice is to solicit comments from the public concerning our information collection. *Estimate of Burden:* Public reporting and recordkeeping burden for this collection of information is estimated to average 8.5 hours per response. *Respondents (Affected Public):* Livestock auction markets, livestock dealers, packer buyers, meat packers, and live poultry dealers. *Estimated Number of Respondents:* 10,950. *Estimated Number of Responses per Respondent:* 3.3. *Estimated Total Annual Burden on Respondents:* 304,106 hours. Copies of this information collection can be obtained from Tess Butler; see ADDRESSES section for contact information. As required by the Paperwork Reduction Act (44U.S.C. 3506(c)(2)(A)) and its implementing regulations (5 CFR 1320.8(d)(1)(i)), we specifically request comments on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c)Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)Ways to minimize the burden on the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All responses to this notice will be summarized and included in the request for the Office of Management and Budget approval. All comments will also become a matter of public record. Authority: 44 U.S.C. 3506 and 5 CFR 1320.8. James E. Link, Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. E7-10051 Filed 5-23-07; 8:45 am] BILLING CODE 3410-KD-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA47 Endangered and Threatened Species; Recovery Plans AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce. ACTION: Notice of availability; recovery plan SUMMARY: The National Marine Fisheries Service
(NMFS)announces the adoption of an Endangered Species Act
(ESA)Recovery Plan (Recovery Plan) for the Hood Canal and Eastern Strait of Juan de Fuca Summer Chum Salmon ( *Oncorhynchus keta* ) Evolutionarily Significant Unit (ESU). The Recovery Plan consists of two documents: the Hood Canal and Eastern Strait of Juan de Fuca Summer Chum Salmon Recovery Plan prepared by the Hood Canal Coordinating Council (HCCC Plan), and a NMFS Final Supplement to the HCCC Plan (Supplement). The Final Supplement contains revisions and additions in consideration of public comments on the proposed Recovery Plan for Hood Canal summer chum salmon. ADDRESSES: Additional information about the Recovery Plan may be obtained by writing to Elizabeth Babcock, National Marine Fisheries Service, 7600 Sandpoint Way N.E., Seattle, WA 98115, or calling
(206)526-4505. Electronic copies of the Recovery Plan and the summary of and response to public comments on the proposed Recovery Plan are available online at *www.nwr.noaa.gov/Salmon Recovery Planning/Recovery Domains/Puget Sound/Index.cfm* , or the Hood Canal Coordinating Council website, www.hccc.wa.gov/. A CD-ROM of the documents can be obtained by calling Sharon Houghton at
(503)230-5418 or by e-mailing a request to *sharon.houghton@noaa.gov* , with the subject line “CD-ROM Request for Final ESA Recovery Plan for Hood Canal Summer Chum Salmon.” FOR FURTHER INFORMATION CONTACT: Elizabeth Babcock, NMFS Puget Sound Salmon Recovery Coordinator at
(206)526-4505, or Elizabeth Gaar, NMFS Salmon Recovery Division at
(503)230-5434. SUPPLEMENTARY INFORMATION: Background Recovery plans describe actions beneficial to the conservation and recovery of species listed under the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531 *et seq.* ). The ESA requires that recovery plans, to the extent practicable, incorporate
(1)objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered;
(2)site-specific management actions that may be necessary to achieve the plan's goals; and
(3)estimates of the time required and costs to implement recovery actions. The ESA requires the development of recovery plans for listed species unless such a plan would not promote the recovery of a particular species. NMFS' goal is to restore endangered and threatened Pacific salmon ESUs and steelhead distinct population segments
(DPSs)to the point that they are again self-sustaining members of their ecosystems and no longer need the protections of the ESA. NMFS believes it is critically important to base its recovery plans on the many state, regional, tribal, local, and private conservation efforts already underway throughout the region. Therefore, the agency supports and participates in locally led collaborative efforts to develop recovery plans, involving local communities, state, tribal, and Federal entities, and other stakeholders. As the lead ESA agency for listed salmon, NMFS is responsible for reviewing these locally produced recovery plans and deciding whether they meet ESA statutory requirements and merit adoption as ESA recovery plans. On November 15, 2005, the Hood Canal Coordinating Council (HCCC), a regional council of governments, presented its locally developed listed species recovery plan (HCCC Plan) to NMFS. The HCCC is a watershed-based council of governments that was established in 1985 in response to concerns about water quality problems and related natural resource issues in the watershed. It was incorporated in 2000 as a 501(c)(3) Public Benefit Corporation under RCW 24.03. Its board of directors includes the county commissioners from Jefferson, Kitsap, and Mason counties, and elected tribal council members from the Skokomish and Port Gamble S'Klallam Tribes. It also includes a slate of ex-officio board members composed of representatives from state and Federal agencies. After reviewing the HCCC Plan, NMFS prepared a Supplement, clarifying how the HCCC Plan satisfies ESA recovery plan requirements and addressing additional elements needed to comply with those requirements. A notice of availability soliciting public comments on the proposed Recovery Plan was published in the **Federal Register** on August 16, 2006 (71 FR 47180). NMFS received three comment letters on the HCCC Plan and draft Supplement. NMFS summarized the public comments and prepared responses, now available on the NMFS website at *www.nwr.noaa.gov/Salmon-Recovery-Planning/Recovery-Domains/Puget-Sound/Hood-Canal-Plan.cfm* . NMFS has revised its Supplement based on the comments received. The HCCC Plan and the Final Supplement now, together, constitute the ESA Recovery Plan for the Hood Canal and eastern Strait of Juan de Fuca summer-run chum salmon. By endorsing this locally developed recovery plan, NMFS is making a commitment to implement the actions in the plan for which it has authority, to work cooperatively on implementation of other actions, and to encourage other Federal agencies to implement Recovery Plan actions for which they have responsibility and authority. NMFS will also encourage the State of Washington to seek similar implementation commitments from state agencies and local governments. NMFS expects the Recovery Plan to help NMFS and other Federal agencies take a more consistent approach to future ESA Section 7 consultations and other ESA decisions. For example, the Recovery Plan will provide greater biological context for the effects that a proposed action may have on the listed ESU. Recovery Plan science will become a component of the “best available information” reviewed for ESA section 7 consultations, section 10 permits and habitat conservation plans, and other ESA decisions. Such information includes viability criteria for the ESU and its independent populations, better understanding of and information on limiting factors and threats facing the ESU, better information on priority areas for addressing specific limiting factors, and better geographic context for assessing where the ESU can tolerate varying levels of risk while still maintaining overall viability. The Recovery Plan The HCCC Plan is one of many ongoing salmon recovery planning efforts funded under the Washington State Strategy for Salmon Recovery. The State of Washington designated the HCCC as the Lead Entity for salmon recovery planning for the Hood Canal watershed. The HCCC has consistently involved the public in its recovery planning process. The HCCC Plan draws extensively on the research and publications of the Summer Chum Salmon Conservation Initiative (SCSCI) (WDFW and PNPTT 2000), an ongoing planning forum initiated in 2000 by the Point No Point Treaty Tribes (PNPTT) and Washington Department of Fish and Wildlife
(WDFW)(WDFW and PNPTT 2000). PNPTT and WDFW are the co-managers directly responsible for fisheries harvest and hatchery management for the Hood Canal and eastern Strait of Juan de Fuca watersheds. The PNPTT comprises the Skokomish, Port Gamble S'Klallam, Jamestown S'Klallam, and Lower Elwha Klallam Tribes, which have Treaty rights to usual and accustomed fishing in this area. The SCSCI provides a mechanism for the development and implementation of harvest management regimes and supplementation programs designed to bring about the recovery of summer chum salmon when integrated with habitat protection and restoration, also considered in the process. Annual reviews are documented in supplemental reports (e.g., WDFW and PNPTT 2003 and PNPTT and WDFW 2003), which can be found at *wdfw.wa.gov/fish/chum/chum.htm* . The HCCC Plan makes extensive use of the SCSCI and subsequent supplemental reports, as well as the watershed plans for Watershed Resource Inventory Areas 14, 15, 16, 17, and 18 (Correa, 2002; Correa, 2003; Kuttel, 2003). The fishery co-managers (WDFW and PNPTT) participated in the development of aspects of this plan, and it is designed to support and complement the co-managers' fisheries and salmon recovery goals and objectives. As in other regional domains defined by NMFS Northwest Region, the Hood Canal planning effort was supported by a NMFS-appointed science panel, the Puget Sound Technical Recovery Team (PSTRT). This panel of seven scientific experts from Federal, state, local, private, and tribal organizations identified historical populations and recommended ESU viability criteria. They provided scientific review of the HCCC Plan. In addition, staff biologists of the Skokomish and Port Gamble S'Klallam Tribes reviewed the HCCC Plan at each stage, and County staff reviewed the land use planning sections. NMFS Northwest Region staff biologists also reviewed draft versions of the HCCC Plan and provided substantial guidance for revisions. The Recovery Plan incorporates the NMFS viable salmonid population
(VSP)framework as a basis for biological status assessments and recovery goals for Hood Canal summer chum salmon, and the Supplement incorporates the most recent work of the PSTRT on viability criteria for this ESU. ESU Addressed and Planning Area The Recovery Plan will be implemented within the range of the Hood Canal summer-run chum salmon ESU ( *Oncorhynchus keta* ), listed as threatened on March 25, 1999 (64 FR 14508). NMFS reviewed the ESU in 2005 and determined that it still warranted ESA protection (Good *et al.* , 2005). The range of the Hood Canal summer-run chum salmon is the northeastern portion of the Olympic Peninsula in Washington State. The ESU includes summer-run chum salmon populations that spawn naturally in tributaries to Hood Canal as well as in Olympic Peninsula rivers between Hood Canal and Dungeness Bay. The recovery planning area includes portions of the Washington counties of Jefferson, Mason, Kitsap, and Clallam; the reservations of the Skokomish, Port Gamble S'Klallam, and Jamestown S'Klallam Tribes; and portions of Water Resource Inventory Areas 14, 15, 16, 17, and 18. The Recovery Plan focuses on the recovery of Hood Canal summer chum salmon. Two other ESA-listed salmonid species, Puget Sound Chinook salmon and Coastal/Puget Sound bull trout, are indigenous to the Hood Canal and eastern Strait of Juan de Fuca regions encompassed by the Recovery Plan. On June 30, 2005, the Shared Strategy for Puget Sound, a nonprofit organization that coordinates recovery planning for Puget Sound Chinook, submitted a recovery plan for Puget Sound Chinook salmon to NMFS. On December 27, 2005, NMFS published a Notice of Availability of the Shared Strategy plan as a proposed recovery plan for Puget Sound Chinook (70 FR 76445). The final Puget Sound Chinook Salmon Recovery Plan was published January 19, 2007. Coastal/Puget Sound bull trout are under the jurisdiction of the U.S. Fish and Wildlife Service (USFWS) and are the subject of a recovery plan published by the USFWS in May 2004. Many of the actions identified in the Hood Canal summer chum salmon plan will also benefit the latter two species. The Shared Strategy and HCCC will work together to make their respective recovery efforts consistent and complementary. The PSTRT identified two independent populations of Hood Canal summer chum. The Strait of Juan de Fuca population spawns in rivers and streams entering the eastern Strait and Admiralty Inlet. The Hood Canal population includes all spawning aggregations within the Hood Canal watershed (Sands *et al.* , 2007). Sixteen historically present “stocks,” of which eight are extant, made up the Hood Canal Summer-Run Chum Salmon ESU. The co-managers identified these stocks in the SCSCI and subsequent supplemental reports (WDFW and PNPTT 2000, 2003). The PSTRT considers these stocks “subpopulations, which contribute to either the Hood Canal or Strait of Juan de Fuca population, depending on their geographical location” (Currens, 2004, p. 19). As noted in the HCCC Plan, the PSTRT report stated that summer chum salmon in the Hood Canal and eastern Strait are probably “a single metapopulation held together historically by a stepping stone pattern of demographic exchange” (Currens, ibid.), created by straying between adjacent streams. For planning purposes, the HCCC Plan assigned the 16 stocks to six geographic groupings called “conservation units.” The HCCC Plan organizes descriptions of population status, limiting factors and threats, and recommended site-specific actions based on these conservation units. Recovery Goals, Objectives and Criteria The overall goal of the HCCC Plan is to achieve recovery and delisting of the summer-run chum salmon in Hood Canal and the eastern Strait of Juan de Fuca. The HCCC Plan's recovery strategy focuses on habitat protection and restoration throughout the geographic range of the ESU; the plan incorporates the co-managers' harvest management and hatchery supplementation programs that are ongoing as part of the SCSCI. The HCCC Plan also includes reintroduction of natural-origin summer chum salmon aggregations to several streams where they were historically present. ESU Viability Criteria Evaluating a species for potential delisting requires an explicit analysis of population or demographic parameters (biological recovery criteria) and also of threats under the five ESA listing factors in ESA section 4(a)(1). Together these make up the “objective, measurable criteria” required under section 4(f)(1)(B). While the ESU is the listed entity under the ESA, the ESU-level viability criteria are based on the collective viability of the individual populations that make up the ESU their characteristics and their distribution throughout the ESU's geographic range. The Recovery Plan adopts both long-term viability criteria and short-term recovery goals or targets for the two populations of Hood Canal summer chum. The long-term viability criteria were identified by the PSTRT (Sands *et al.* , 2007) and describe characteristics predicted to result in a negligible risk of extinction for the ESU in 100 years. The short-term criteria are “interim” recovery goals for the next 10 years that were developed by the co-managers in the SCSCI (PNPTT and WDFW 2003). These two sets of criteria are based on different, but compatible, approaches. Both may be refined as new information becomes available. The NMFS Supplement published in 2006 included viability criteria for each of the two independent populations of Hood Canal summer-run chum salmon identified by the PSTRT. In early 2007, the PSTRT completed additional viability modeling for both populations. That work was shared with state, tribal, and HCCC technical staff. NMFS updated the viability criteria for both populations based on the PSTRT's additional analysis and the input from technical staff. This ESA Recovery Plan includes viability criteria based on both methods of analysis. NMFS has asked the PSTRT to continue to work with HCCC staff and the co-managers to integrate the interim recovery goals described in the HCCC Plan with the long-term criteria for the ESU. This will not necessitate a revision of the HCCC Plan, but will be considered part of the adaptive management and implementation phase of the Recovery Plan. Adaptive Management Adaptive management is the process of adjusting management actions and/or directions based on new information. It requires building an evaluation method into an implementation plan, so that selection and design of future recovery actions can be adjusted depending on the results of previous actions. Adaptive management is essential to salmon recovery planning. The HCCC Plan incorporates by reference the integrated program for monitoring, evaluation, and adaptive management included in the SCSCI (WDFW and PNPTT 2000, Part 4, Sections 4.2.5 and 4.2.5). In addition, the HCCC is developing a monitoring and adaptive management element in its overall implementation plan. NMFS will continue to work with the HCCC on its adaptive management program as appropriate during plan implementation. Causes for Decline and Current Threats Listing factors are those features that were evaluated under section 4(a)(1) when the initial determination was made to list the species for protection under the ESA. These factors are:
(a)The present or threatened destruction, modification, or curtailment of a species' habitat or range;
(b)overutilization for commercial, recreational, or educational purposes;
(c)disease or predation;
(d)the inadequacy of existing regulatory mechanisms; and
(e)other natural or man made factors affecting the species' continued existence. These may or may not still be limiting recovery when in the future NMFS reevaluates the status of the species to determine whether the protections of the ESA are no longer warranted and the species could be delisted. In the Recovery Plan, NMFS provides specific criteria for each of the relevant listing/delisting factors to help ensure that underlying causes of decline have been addressed and mitigated prior to considering the species for delisting. The HCCC Plan identifies the main causes for the decline of the Hood Canal summer chum as
(1)climate-related changes in stream flow patterns,
(2)past fishery exploitation, and
(3)cumulative habitat loss. *Climate change:* NMFS agrees that summer chum are particularly sensitive to variations in instream flows, which vary naturally between years and perhaps over decades. However, NMFS cautions that possible changes in climate over the past 30 years were reasoned from flow records and have not been investigated by a detailed study. NMFS expects that current, ongoing research on impacts of climate change on salmon habitat restoration (e.g., Battin *et al.* , 2007) will further clarify this question. *Harvest:* The Recovery Plan draws upon data and conclusions from the SCSCI indicating that harvest (including in U.S. and Canada) was a factor in the decline of summer chum salmon prior to 1992. Exploitation rates ranging from 21 percent for the Salmon/Snow and Jimmycomelately populations to 90 percent for the Quilcene population were seen to correlate with declines in escapements. Beginning in 1992 and culminating in the implementation of the SCSCI in 2000, the co-managers designed harvest management regimes to limit mortality from fishing to a rate that allows the vast majority of summer chum salmon to return to their natal spawning grounds. Implementation of the harvest management strategy since 2000 has worked as expected. Escapements have increased to all components of the ESU, and observed exploitation rates are even lower than anticipated (below 3 percent and 1 percent for Hood Canal and Strait of Juan de Fuca populations, respectively). *Habitat:* Chapter 6 of the HCCC Plan summarizes overall habitat issues for the ESU. More detail is included in the HCCC Plan's individual chapters on conservation units. NMFS' 2005 Report to Congress on the Pacific Coastal Salmon Recovery Fund (PCSRF) described habitat-related factors for decline as the following:
(1)Degraded floodplain and mainstem river channel structure;
(2)degraded estuarine conditions and loss of estuarine habitat;
(3)riparian area degradation and loss of in-river large woody debris in mainstem;
(4)excessive sediment in spawning gravels;
(5)reduced stream flow in migration areas;
(6)degraded nearshore conditions. These factors are all covered in detail in the HCCC Plan. Site-Specific Actions The HCCC Plan lists potential sources of funding, administrative paths, and target activities that could be undertaken for salmon recovery in the region (pp. 43-45), then makes site-specific recommendations based on conservation units (Chapters 7-12). A full range of policy options for acquiring, funneling, and allocating resources for salmon habitat conservation was developed and presented to the members of the HCCC Board for review and decision-making. *Habitat:* The HCCC provided a summary table for the Supplement, linking limiting factors and recommended habitat actions by conservation unit and stock. *Harvest:* The co-managers developed through the SCSCI a harvest management strategy called the Base Conservation Regime
(BCR)(details in WDFW and PNPTT 2000, section 3.5.6.1). The intent of the BCR is to initiate rebuilding by fostering incremental increases in escapement over time, while providing a limited opportunity for fisheries conducted for the harvest of other salmon species. The BCR will pass through to spawning escapement, on average, in excess of 95 percent of the Hood Canal-Strait of Juan de Fuca summer chum salmon abundance in U.S. waters. The harvest management component of the SCSCI was provided to NMFS in 2000 as the co-managers' proposed joint Resource Management Plan
(RMP)for managing salmon fisheries to meet summer chum salmon ESA conservation needs. NMFS subsequently determined that the RMP adequately addressed all requirements specified under Limit 6 of the ESA 4(d) Rule for Hood Canal summer chum salmon (66 FR 31600, June 12, 2001). More information can be found at *www.nwr.noaa.gov/Salmon-Harvest-Hatcheries/State-Tribal-Management/HC-Chum-RMP.cfm* . NMFS and the co-managers will continue to evaluate the performance of the harvest management strategy as new information becomes available, consistent with the evaluation and adaptive management elements of the SCSCI and the Recovery Plan. *Hatcheries:* The HCCC Plan incorporates the supplementation and reintroduction approach implemented by the co-managers under the SCSCI beginning in 1992 to conserve summer chum salmon in the action area. Under the SCSCI, artificial production directed at summer chum recovery is applied only to preserve stocks identified as at moderate or high risk of extinction, and to reintroduce naturally spawning aggregations in selected watersheds from which the indigenous stocks have been extirpated. Hatchery supplementation programs use native broodstock, allow hatchery-origin fish to spawn naturally, are carefully monitored and evaluated, and are scheduled to be terminated in a maximum of three salmon generations. Four such programs have met their goals and have been terminated. In addition, implementation of conservation hatchery actions was guided by these premises: “Commensurate, timely improvements in the condition of habitat critical for summer chum salmon survival are necessary to recover the listed populations to healthy levels. . . The intent of the supplementation efforts is to reduce the short-term extinction risk to existing wild populations, and to increase the likelihood of their recovery” (HCCC Plan, p. 54). NMFS agrees with the PSTRT's conclusion in its 2005 review of the HCCC Plan that the hatchery strategy to supplement summer chum in Hood Canal is very well designed and has been well implemented throughout its tenure. The monitoring information resulting from the hatchery program is exemplary, and the co-managers have used the data to adjust their supplementation strategies as needed. Time and Cost Estimates The ESA section 4(f)(1) requires that the recovery plan include “estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal” (16 U.S.C. 1533(f)(1)). Appendix D of the recovery plan (Costing of the Hood Canal Coordinating Council's Summer Chum Salmon Recovery Plan, August 2004) provides cost estimates to carry out specific recovery actions for the first 10 years of plan implementation. The cost estimates cover all capital projects judged to be feasible in the six conservation units, as well as non-capital work projected to occur over the 10-year period. The HCCC Plan contains an extensive list of actions that need to be undertaken to recover Hood Canal summer chum salmon; however, there are many uncertainties involved in predicting the course of recovery and in estimating total costs. Such uncertainties include biological and ecosystem responses to recovery actions as well as long-term and future funding. NMFS supports the HCCC Plan's determination to focus on the first 10 years of implementation, provided that, before the end of this first implementation period, specific actions and costs will be estimated for subsequent years, to achieve long-term goals and to proceed until a determination is made that listing is no longer necessary. NMFS estimates that recovery of the Hood Canal Summer Chum ESU, like recovery for most of the ESA-listed Pacific Northwest salmon, could take 50 to 100 years. The HCCC Plan provides a total estimated cost for the first ten years of approximately $136 million. This estimate includes approximately $2 million for continuing agency and organization costs, and it is conceivable that this level of effort will need to continue for the Plan's duration. Also, continued actions in the management of habitat, hatcheries, and harvest, including both capital and non-capital costs, will likely warrant additional expenditures beyond the first 10 years. Although it is not practicable to accurately estimate the total cost of recovery, it appears that most of the costs will occur in the first 10 years. The costs for the remaining years are expected to be lower, possibly ranging from a total of $15 million to $65 million. Periodic Status Reviews In accordance with its responsibilities under section 4(c)(2) of the Act, NMFS will conduct status reviews of Hood Canal summer chum salmon once every five years to evaluate the ESU's status and determine whether the ESU should be removed from the list or changed in status. Such evaluations will take into account the following: • The biological recovery criteria (Sands *et al.* , 2007) and listing factor (threats) criteria described in the Supplement. • Management programs in place to address the threats. • Principles presented in the Viable Salmonid Populations paper (McElhany *et al.* , 2000). • Co-managers' interim stock-level recovery goals. • Best available information on population and ESU status and new advances in risk evaluation methodologies. • Other considerations, including: the number and status of extant spawning groups; the status of the major spawning groups; linkages and connectivity among groups; diversity groups and the two populations; the diversity of life history and phenotypes expressed; and considerations regarding catastrophic risk. • Principles laid out in NMFS' Hatchery Listing Policy (June 28, 2005, 70 FR 37204). Conclusion NMFS reviewed the HCCC Plan, the public comments, and the notes and conclusions of the PSTRT from its reviews of the HCCC Plan in May and July 2005. Based on that evaluation, NMFS concludes that the HCCC Plan, in combination with this NMFS Supplement, meets the requirements in section 4(f) of the ESA for developing a recovery plan. Literature Cited Battin, J., M.W. Wiley, M.H. Ruckelshaus, R.N. Palmer, E. Korb, K.K. Bartz, and H. Imaki. 2007. Projected impacts of climate change on salmon habitat restoration. PNAS 104:16:6720-6725. April 17, 2007. Correa, G. 2002. Salmon and Steelhead Habitat Limiting Factors. Water Resource Inventory Area 17. Quilcene-Snow Basin. Washington State Conservation Commission. Final Report. November 2002. 316p. Correa, G. 2003. Salmon and Steelhead Habitat Limiting Factors. Water Resource Inventory Area 16. Dosewallips-Skokomish Basin. Washington State Conservation Commission. Final Report. June 2003. 257p. Currens, K. 2004. Identification of independent populations of summer chum salmon and their recovery targets. January 29, 2004, draft document. Northwest Fisheries Science Center. NOAA Fisheries. Seattle, Washington. 18p. Good, T.P., R.S. Waples, and P. Adams (editors). 2005. Updated status of federally listed ESUs of West Coast salmon and steelhead. U.S. Dept. Commerce, NOAA Tech. Memo. NMFS-NWFSC-66. 598p. Kuttel, M., Jr. 2003. Salmon and Steelhead Habitat Limiting Factors. Water Resource Inventory Areas 15 (West), Kitsap Basin and 14 (North) Kennedy-Goldsborough Basin. Washington State Conservation Commission. Final Report. June 2003. 312p. McElhany, P., M. H. Ruckelshaus, M. J. Ford, T. C. Wainwright, E. P. Bjorkstedt. 2000. Viable salmon populations and the recovery of evolutionarily significant units. U.S. Dept. of Commerce, NOAA Tech. Memo., NMFS-NWFSC-42. 156p. Point No Point Treaty Tribes (PNPTT) and Washington Department of Fish and Wildlife (WDFW). 2003. Summer chum salmon conservation initiative—an implementation plan to recover summer chum salmon in the Hood Canal and Strait of Juan de Fuca region. Supplemental report No. 5. Report on summer chum salmon interim recovery goals. Washington Department of Fish and Wildlife. Olympia, Washington. Washington Department of Fish and Wildlife. Olympia, Washington. Sands, N.J., K. Rawson, K. Currens, B. Graeber, M. Ruckelshaus, B. Fuerstenberg, and J. Scott. 2007. Dawgz 'n the Hood: The Hood Canal Summer Chum Salmon ESU. February 28, 2007 draft document available at: *www.nwfsc.noaa.gov/trt/trt_puget.cfm* . Washington Department of Fish and Wildlife
(WDFW)and the Point No Point Treaty Tribes (PNPTT). 2000. Summer chum salmon conservation initiative—an implementation plan to recover summer chum in the Hood Canal and Strait of Juan de Fuca region. Fish Program, Washington Department of Fish and Wildlife. Olympia, Washington. 424p. plus three appendices. 2003. Summer chum salmon conservation initiative—an implementation plan to recover summer chum in the Hood Canal and Strait of Juan de Fuca region. Supplemental report No. 3. Annual report for the 2000 summer chum salmon return to the Hood Canal and Strait of Juan de Fuca region. Washington Department of Fish and Wildlife, Olympia, Washington. 123p. Authority: 16 U.S.C. 1531 *et seq.* Dated: May 21, 2007. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-10074 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA48 Fisheries of the Exclusive Economic Zone off Alaska; Application for an Exempted Fishing Permit AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of an application for an exempted fishing permit. SUMMARY: This notice announces receipt of an application for an exempted fishing permit
(EFP)from Alaska Groundfish Data Bank. If granted, the EFP would allow the applicants to explore electronic monitoring
(EM)as a tool for monitoring halibut discards and estimating amounts of halibut discarded. This project is intended to promote the objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska
(FMP)and National Standard 9 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Comments will be accepted at the June 4-12 North Pacific Fishery Management Council (Council) meeting in Sitka, AK. DATES: Interested persons may comment on the EFP application during the Council's June 4-12, 2007, meeting in Sitka, AK. ADDRESSES: The Council meeting will be held at Centennial Hall, 330 Harbor Drive, Sitka, AK. Copies of the EFP application and the environmental assessment
(EA)are available by writing to the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian. The application and EA also are available from the Alaska Region, NMFS website at *http://www.fakr.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228 or *jason.anderson@noaa.gov* . SUPPLEMENTARY INFORMATION: NMFS manages the domestic groundfish fisheries in the Gulf of Alaska
(GOA)under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Act. Regulations governing the groundfish fisheries of the GOA appear at 50 CFR parts 600 and 679. The FMP and the implementing regulations at §§ 679.6 and 600.745(b) authorize issuance of EFPs to allow fishing that would be otherwise prohibited. Procedures for issuing EFPs are contained in the implementing regulations. NMFS received an EFP application from Alaska Groundfish Data Bank on April 30, 2007. The primary objectives of the proposed EFP are to 1) test the feasibility of using video to monitor halibut discards at a single location on catcher vessels, 2) estimate the amount of halibut discarded at this location, and 3) assess the costs associated with collecting and reviewing EM data. The applicants developed the EFP in cooperation with NMFS scientists at the Alaska Fisheries Science Center (AFSC). The AFSC approved the EFP scientific design on May 2, 2007. The project is intended to provide information needed by the Council and NMFS to inform decisions on future management actions in the Gulf of Alaska rockfish fisheries. Specifically, the project would assess whether NMFS can relax recently increased observer coverage requirements implemented under the Central GOA rockfish pilot program (Program) on catcher vessels that employ EM. Background NMFS issued a final rule to implement the Program on November 20, 2006 (71 FR 67210). Program development was initiated by trawl industry representatives, primarily from Kodiak, Alaska, in conjunction with catcher/processor representatives. They sought to improve the economic efficiency of Central GOA rockfish fisheries by developing a program that establishes cooperatives that receive exclusive harvest privileges for a specific set of rockfish species, and for associated species harvested incidentally to those rockfish in the Central GOA. Participants in the program include the catcher vessel, onshore processing, and offshore catcher/processor sectors. NMFS, Sustainable Fisheries Division, consulted with the Council, members of the industry, NMFS Office of Law Enforcement, NOAA General Counsel, and the U.S. Coast Guard to design a monitoring program to increase data quality for total catch reporting. As part of that monitoring program, observer coverage was increased on many catcher vessels to 100 percent (one observer at all times). Industry is concerned that costs associated with increased observer coverage are high relative to the increased revenue associated with the Program. To address these concerns, Alaska Groundfish Data Bank developed, in conjunction with staff at the AFSC and NMFS Alaska Region, an alternative approach to manage shoreside rockfish fisheries that could include the use of EM to replace increased observer coverage. Rockfish fishing for the major target species in the Program (Pacific ocean perch, northern rockfish, and pelagic shelf rockfish) is relatively selective in terms of the percentage of catch that is rockfish. Additionally, retention rates are high relative to flatfish and other GOA target fisheries. Selective fisheries where a high fraction of the catch is retained are logical candidates for reliance on shoreside sampling as the primary fishery data collection point, and EM to monitor and account for at-sea discards. Under the EFP, halibut are proposed to be the only species allowed to be discarded at sea. Further, discarding would only be allowed at a single, specially designed discard chute. The vessel would be fitted with several cameras designed to assess whether video can adequately detect all discard activities. The discard chute would be modified to retain all discarded halibut. Data on total halibut discarded would be compared against EM data to determine its effectiveness. Additionally, the discard chute would be equipped with cameras to obtain individual halibut length data. The weight of each halibut would be estimated based on the International Pacific Halibut Commission length-to-weight table, and a total halibut removal weight would be calculated for each haul. If successful and feasible, catch accounting data of all non-halibut species could thus be obtained during deliveries to shoreside plants, and at-sea halibut discards could be estimated through this specialized application of EM. Information gathered during this project could assist the Council in developing future monitoring protocols for all North Pacific fisheries. To support this EFP, an allocation of rockfish and associated bycatch species in addition to those allocated under the Program is proposed. Groundfish and halibut amounts required are listed in the table below: Species Amount
(mt)arrowtooth flounder 34 halibut 12 northern rockfish 88 Pacific cod 42 pelagic shelf rockfish 52 Pacific ocean perch 145 sablefish 26 shortraker/rougheye rockfish 1 thornyhead rockfish 4 other 8 total 412 The project would begin September 15, 2007, and continue until either the halibut mortality limit is reached or 30 hauls (5 to 7 individual trips) are completed. Additionally, NMFS may consider extending the EFP to allow additional testing in the following year, if needed. Fishing would occur in the Central GOA. The EFP would exempt the applicant from Central GOA directed fishing closures implemented under §§ 679.20, 679.21, 679.23 or 679.25 for reasons other than overfishing. The EFP would allow for the harvest of up to 400 mt of groundfish species. The EFP would exempt the applicant from the requirements of the Program under §§ 679.4(n), 679.5(r) and 679.7(n). Because the participating vessel would be carrying at-sea samplers, the EFP would exempt the applicant from regulations requiring observers to be onboard the vessel. Specifically, the permit would exempt the applicant from §§ 679.50, 679.7(a)(3), 679.7(g) while the experiment is being conducted. Halibut mortality from this project would not be applied against the halibut prohibited species catch
(PSC)limits allocated to the Central GOA trawl fishery or to the prohibited species quota limits in the Program. The proposed EFP would exempt a vessel from halibut PSC limits at § 679.21(d)(3) and allow up to 12 mt of halibut mortality associated with fishing under this project. The vessel would be exempted from maximum retainable amount
(MRA)regulations at § 679.20(e) and Table 10 to 50 CFR part 679. Additional discards occurring during the experiment would hamper the ability of reviewers to determine whether or not all halibut were retained. It is highly unlikely that discard above the MRA would be required. These exemptions are necessary to allow the permit holder to 1) effectively test the feasibility of using video to monitor for halibut discards at a single location on the catcher vessel, 2) estimate the amount of halibut discarded at this location, and 3) assess the costs of collecting and reviewing EM data. Information gathered during this proposed EFP could be used by the Council to develop future monitoring protocols for all North Pacific fisheries The applicant will present draft results of the project to members of the industry in Kodiak, Alaska. Additionally, the applicant, in conjunction with NMFS staff involved with the project, would present the draft findings to the Council and its advisory bodies at a meeting convenient to the Council. The applicant also would be responsible for providing the final report to the interested public once that report has been reviewed by the Council and its advisory bodies. In accordance with § 600.745(b) and § 679.6, NMFS has determined that the proposal warrants consideration and has initiated consultation with the Council. The Council will consider the EFP application during its meeting in Sitka, AK, from June 4-12, 2007. The applicant has been invited to appear in support of the application. Public Comments Interested persons may comment on the application at the June 2007 Council meeting during public testimony. Information regarding the meeting is available at 72 FR 26606 (May 10, 2007) and on the Council's website at *http://www.fakr.noaa.gov/npfmc/council.htm* . Authority: 16 U.S.C. 1801 *et seq.* Dated: May 21, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-10020 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA37 Marine Mammals; File No. 978-1857 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of permit. SUMMARY: Notice is hereby given that Dr. Paul Nachtigall, Hawaii Institute of Marine Biology, University of Hawaii, P.O. Box 1106, Kailua, Hawaii 96734, has been issued a permit to conduct research on three captive bottlenose dolphins ( *Tursiops truncatus* ) and one false killer whale ( *Pseudorca crassidens* ). ADDRESSES: The permit and related documents are available for review upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone
(301)713-2289; fax
(301)427-2521; and Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI 96814-4700; phone
(808)973-2935; fax
(808)973-2941. FOR FURTHER INFORMATION CONTACT: Amy Sloan or Jaclyn Daly,
(301)713-2289. SUPPLEMENTARY INFORMATION: On October 2, 2006, notice was published in the **Federal Register** (71 FR 57926) that a request for a scientific research permit to take the species identified above had been submitted by the above-named individual. The requested permit has been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 *et seq.* ) and the regulations governing the taking and importing of marine mammals (50 CFR part 216). The 5-year permit authorizes Dr. Nachtigall to conduct acoustic studies on captive marine mammals at the Hawaii Institute of Marine Biology. Research methods will employ the use of suction cup electrodes to measure auditory brainstem response, auditory evoked potentials, and temporary threshold shifts. Echolocation studies will also be conducted. In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), a final determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. Dated: May 17, 2007. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-10071 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA38 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of a letter of authorization. SUMMARY: In accordance with the Marine Mammal Protection Act
(MMPA)and implementing regulations, notification is hereby given that a 1-year letter of authorization
(LOA)has been issued to the Monterey Bay National Marine Sanctuary (MBNMS or the Sanctuary) to incidentally take, by Level B Harassment only, California sea lions ( *Zalophus californianus* ) and Pacific harbor seals ( *Phoca vitulina* ) incidental to authorizing professional fireworks displays within the Sanctuary in California waters. DATES: The LOA will be effective from July 4, 2007, through July 3, 2008. ADDRESSES: The LOA and supporting documentation are available by writing to Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning one of the contacts listed here ( FOR FURTHER INFORMATION CONTACT ), or online at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802. FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected Resources, NMFS,
(301)713-2289, or Monica DeAngelis, Southwest Regional Office, NMFS,
(562)980-4023. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 *et seq.* ) directs NMFS to allow, on request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. Under the MMPA, the term “taking” means to harass, hunt, capture, or kill or to attempt to harass, hunt, capture or kill marine mammals. Authorization may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements for monitoring and reporting of such taking. Regulations governing the taking of California sea lions and Pacific harbor seals, by Level B harassment, incidental to the authorization of fireworks displays within the Sanctuary became effective on July 4, 2006, and remain in effect until July 3, 2011. For detailed information on this action, please refer to the original **Federal Register** notice at 71 FR 40928 (July 19, 2006). These regulations include mitigation, monitoring, and reporting requirements for the incidental taking of marine mammals during the fireworks displays within the Sanctuary boundaries. This will be the second LOA issued pursuant to these regulations. Summary of Request On February 27, 2007, NMFS received a request for an LOA pursuant to the aforementioned regulations that would authorize, for a period not to exceed 1 year, take of marine mammals incidental to fireworks displays at the MBNMS. Justification for conducting fireworks displays within the MBNMS can be found in the proposed rule (71 FR 25544). Summary of Activity and Monitoring Under the Current LOA In compliance with the 2006 LOA, the MBNMS submitted an annual report on the fireworks displays at MBNMS. A summary of that report follows. Four fireworks displays took place within the MBNMS in 2006. Observers conducted pre-event census to document abundance of marine mammals and protected species pre-event and post-event surveys to record any injured or dead wildlife species. Pre-event monitoring of the City of Monterey Bay Independence fireworks found 61 sea lions, nine harbor seals, and six sea otters ( *Enhydra lutris* ) in the vicinity of the event area. Post-monitoring revealed no dead or injured marine mammals and one dead cormorant; however, dead birds are commonly found on area beaches and this death could not be contributed directly to the fireworks display. Observers monitored the area around the location of Cambria Independence Day fireworks display and found no animals present at the site before the event and no dead or injured marine mammals or other animal species post-event. On July 30, 2006, Pacific Grove hosted The Feast of Lanterns Annual Fireworks display. On July 28, 2006, a pre-census count found seventeen harbor seals and three sea otters within the display area. A non-mandatory census was also conducted on July 29 with no marine mammals observed, possibly due to music, festivities, and increased human presence in the area. No dead or injured marine mammals were reported for this event. The Monte Foundation fireworks display was held on October 14, and a pre-event census was conducted on October 13. The census revealed four harbor seals and one sea otter in the area. No animals were reported dead or injured the day after the event. In summary, the total number of potentially harassed sea lions
(61)and harbor seals
(13)for all fireworks displays, was well below the authorized limits as stated in the final rule (71 FR 40928). No dead or injured marine mammals were reported for all events. These monitoring results supports NMFS initial findings that fireworks display will result in no more than Level B harassment of small numbers of California sea lions and harbor seals and that effects will be limited to short term behavioral changes, including temporary abandonment of haulouts to avoid sights and sounds of commercial fireworks. Authorization Accordingly, NMFS has issued an LOA to MBNMS authorizing the Level B harassment of marine mammals incidental to the authorization of fireworks display within the Sanctuary. Issuance of this LOA is based on findings, described in the preamble to the final rule (71 FR 40928, July 19, 2006), that the activities described under this LOA will have a negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses. No mortality or injury of affected species is anticipated. Dated: May 17, 2007. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-9964 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [XRIN: 0648-XA55] Mid-Atlantic Fishery Management Council; Public Meetings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meetings. SUMMARY: The Mid-Atlantic Fishery Management Council (Council), its Research Set Aside
(RSA)Committee, its Ecosystems Committee, its Law Enforcement/Vessel Safety Committee, its Squid, Mackerel, and Butterfish Committee, its Executive Committee, and its Bycatch/Limited Access Privilege Program Committee will hold public meetings. Prior to the Council's meeting there will be a meeting of the Joint Council New England and Mid-Atlantic Councils Standardized Bycatch Reporting Methodology
(SBRM)Committee. DATES: The meetings will be held on Monday, June 11, 2007 through Thursday, June 14, 2007. See SUPPLEMENTARY INFORMATION for specific dates and times. ADDRESSES: These meetings will be held at the Embassy Suites, 1700 Coliseum Drive, Hampton, VA 23666; telephone:
(757)827-8200. *Council address* : Mid-Atlantic Fishery Management Council, 300 S. New Street, Dover, DE 19904; telephone:
(302)674-2331. FOR FURTHER INFORMATION CONTACT: Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone:
(302)674-2331, ext. 19. SUPPLEMENTARY INFORMATION: Monday, June 11, 2007 *2 p.m. until 5 p.m.* , the Joint Council SBRM Committee will meet. Tuesday, June 12, 2007 *9 a.m. until 12 noon* , the RSA Committee with NMFS Cooperative Research Staff will meet. *10 a.m. until 11 a.m.* , the Ecosystems Committee will meet concurrently with the RSA Committee. *11 a.m. until 12 noon* , the Law Enforcement/Vessel Safety Committee will also meet concurrently with the RSA Committee. *1 p.m. until 4 p.m* ., the Squid, Mackerel, and Butterfish Committee will meet with its advisors. *4 p.m. until 5:30 p.m.* , the Executive Committee will meet. Wednesday, June 13, 2007 *8 a.m. until 9 a.m.* , the Bycatch/Limited Access Privilege Program
(LAPP)Committee will meet. *9 a.m. until 9:30 a.m.* , the Council will convene and receive a presentation on the Coral Reef Conservation Amendments Act of 2007. *9:30 a.m. until 12 noon* , the Council will conduct its regular Council business session. *1 p.m. until 2:30 p.m.* , the Council will discuss and develop 2008, 2009, and 2010 quota specifications for the surfclam and ocean quahog fisheries. *2:30 p.m. until 5 p.m* ., the Council will discuss and develop 2008 quota specifications for the Atlantic mackerel, squid and butterfish fisheries. Thursday, June 14, 2007 *8 a.m.* , the Council will convene to receive a presentation by the NMFS on the Status of its Recreational Data Collection Initiative. *9 a.m. until 12 noon* , the Council will discuss Amendment 1 to the Tilefish Fishery Management Plan (FMP). *1 p.m. until 2:30 p.m.* , the Council will review and take action on the Omnibus Amendment for Standardized Bycatch Reporting Methodology. *2:30 p.m. until 3:30 p.m.* , the Council will review and consider actions taken by the Atlantic States Marine Fisheries Commission (ASMFC) regarding Amendment 15 to the Summer Flounder, Scup, and Black Sea Bass FMP. *3:30 p.m. until adjournment* , the Council will receive and discuss committee reports, and address any continuing and/or new business. Agenda items for the Council's committees and the Council itself are: The Joint Council SBRM Committee will review revisions to the SBRM Amendment including the environmental assessment, select preferred alternatives, and develop the Council's final position for Secretarial submission. The RSA Committee will meet to review the Mid-Atlantic RSA program performance and discuss future directions; discuss ways to improve program effectiveness, dissemination of results, and coordination with other cooperative research efforts; initiate discussion of research priorities for the 2009 program year; and, develop comments as appropriate for Council consideration. The Ecosystems Committee will review “Taking the Bait” ... A Blueprint for Councils to Protect the Ocean Forage Base. The Law Enforcement/Vessel Safety Committee will address National Standard 10 in context of the recent Congressional Hearing on commercial fishing vessel safety, and review the Council's Fisheries Achievement Award process and timeline for 2007. The Squid, Mackerel, and Butterfish Committee will meet with its Advisors to review the Monitoring Committee's recommendations for 2008 quota levels and associated management measures and develop 2008 quota specifications and associated management measures for Council consideration and action; and, receive status updates on Amendments 9 and 10. The Executive Committee will review the Council Coordination Committee
(CCC)meeting results and action items including: budget outcome from CCC meeting and its impact on the Council's 2007 operations; Council member training/mentoring; and, status of NMFS Regulatory Streamlining Program efforts. The Executive Committee will also review the Northeast Regional Coordinating Council meeting agenda and actions; discuss the role of the Scientific and Statistical Committee; discuss practicability and applicability of an interactive web site for the Council; and, review Commercial Fishing Vessel Safety issues. The Bycatch/LAPP Committee will review and evaluate public comments on the proposed SBRM Amendment, discuss and develop a Council position regarding Secretarial submission of the proposed Amendment; and, receive an update on the LAPP. The Council will receive a presentation on the Coral Reef Ecosystem Conservation Amendments Act of 2007; this will be followed by the Council's regular business session. The Council will then review staff's recommendations for 2008, 2009, and 2010 surfclam and ocean quahog quota specifications and associated management measures, and then the Council will develop and adopt quota specifications and associated management measures for a multi-year surfclam and ocean quahog specification program. The Council will review the Atlantic Mackerel, Squid, and Butterfish Committee's recommendations for 2008 quota specifications and associated management measures, and will develop and adopt 2008 quota specifications and associated management measures for squid, mackerel, and butterfish. The Council will receive a presentation on the Status of NMFS' Recreational Data Collection Initiative. The Council will then review alternatives associated with various measures proposed in Amendment 1 to the Tilefish FMP, and select preferred alternatives for that Amendment, and then review and adopt the Public Hearing Document
(PHD)and associated Draft Environmental Impact Statement (DEIS). The Council will review and take action on the Standardized Bycatch Reporting Methodology Omnibus Amendment for Secretarial submission. The Council will review and consider actions taken by the ASMFC regarding Amendment 15 to the Summer Flounder, Scup, and Black Sea Bass FMP. The Council will conclude its meeting by receiving various committee reports and by addressing any continuing and/or new business. Although non-emergency issues not contained in this agenda may come before the Council for discussion, these issues may not be the subject of formal Council action during these meetings. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final actions to address such emergencies. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Bryan at
(302)674-2331 ext: 18 at least 5 days prior to the meeting date. Dated: May 21, 2007. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-10010 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [XRIN: 0648-XA52] Pacific Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meetings. SUMMARY: The Pacific Fishery Management Council (Council) and its advisory entities will hold public meetings. DATES: The Council and its advisory entities will meet June 9-15, 2007 . The Council meeting will begin on Monday, June 11, at 2 p.m., reconvening each day through Friday, June 15. All meetings are open to the public, except a closed session will be held from 2 p.m. until 3 p.m. on Monday, June 11 to address litigation and personnel matters. The Council will meet as late as necessary each day to complete its scheduled business. ADDRESSES: The meetings will be held at the Crowne Plaza Hotel, 1221 Chess Drive, Foster City, CA 94404; telephone:
(650)570-5700. *Council address* : Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220. FOR FURTHER INFORMATION CONTACT: Dr. Donald O. McIsaac, Executive Director; telephone:
(503)820-2280. SUPPLEMENTARY INFORMATION: The following items are on the Council agenda, but not necessarily in this order: A. Call to Order 1. Opening Remarks and Introductions 2. Roll Call 3. Executive Director's Report 4. Approve Agenda B. Administrative Matters 1. Future Council Meeting Agenda Planning 2. Council Operating Procedure for Providing Highly Migratory Species Management Recommendations to Regional Fishery Management Organizations 3. Recreational Fishery Information Network Data and Sampling Refinements 4. Council Operating Procedure for Reviewing Proposed Changes to Groundfish Essential Fish Habitat
(EFH)and Establishing a Groundfish EFH Oversight Committee 5. Magnuson-Stevens Act Reauthorization Implementation 6. Legislative Matters 7. Fiscal Matters 8. Appointments to Advisory Bodies, Standing Committees, and Other Forums, and Changes to Council Operating Procedures as Needed 9. Approval of Council Meeting Minutes 10. Council Three-Meeting Outlook, Draft September 2007 Council Meeting Agenda, and Workload Priorities C. Open Public Comment Comments on Non-Agenda Items D. Habitat Current Habitat Issues E. Groundfish Management 1. NMFS Report 2. Proposed Process and Schedule for Developing Biennial (2009-10) Harvest Specifications and Management Measures 3. Shore-Based Pacific Whiting Monitoring Program 4. Amendment 22: Limiting Entry in the Open Access Groundfish Fishery 5. Preliminary Review of Exempted Fishing Permits for 2008 6. Stock Assessments for 2009-10 Groundfish Fisheries 7. Consideration of Inseason Adjustments 8. Amendment 21: Intersector Allocation 9. Amendment 20: Trawl Rationalization Alternatives (Trawl Individual Quotas and Cooperatives) 10. Final Consideration of Inseason Adjustments (if needed) 11. Amendment 15: American Fisheries Act Issues F. Coastal Pelagic Species Management 1. NMFS Report 2. Pacific Mackerel Stock Assessment and Harvest Guideline for 2007-08 SCHEDULE OF ANCILLARY MEETINGS SATURDAY, June 9, 2007 Scientific and Statistical Committee Groundfish Subcommittee 1 p.m. SUNDAY, June 10, 2007 Scientific and Statistical Committee Groundfish Subcommittee 9 a.m. Groundfish Advisory Subpanel 1 p.m. Groundfish Management Team 1 p.m. MONDAY, June 11, 2007 Council Secretariat 8 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Scientific and Statistical Committee 8 a.m. Budget Committee 8:30 a.m. Habitat Committee 9 a.m. Legislative Committee 10 a.m. Enforcement Consultants 4:30 p.m. Groundfish Stock Assessment Question and Answer Session 7 p.m. TUESDAY, June 12, 2007 Council Secretariat 7 a.m. California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Enforcement Consultants 8 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Scientific and Statistical Committee 8 a.m. WEDNESDAY, June 13, 2007 Council Secretariat 7 a.m. California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Enforcement Consultants 8 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Scientific and Statistical Committee 8 a.m. Trawl Individual Quota Committee 8:30 a.m. Olympic National Marine Sanctuary Marine Habitat Research Report 7 p.m. THURSDAY, June 14, 2007 Council Secretariat 7 a.m. California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Enforcement Consultants As necessary Informal Vessel Monitoring Program Review with Industry 7 p.m. FRIDAY, June 15, 2007 Council Secretariat 7 a.m. California State Delegation 7 a.m. Oregon State Delegation 7 a.m. Washington State Delegation 7 a.m. Enforcement Consultants As necessary Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at
(503)820-2280 at least 5 days prior to the meeting date. Dated: May 21, 2007. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-10009 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [XRIN: 0648-XA53] Pacific Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. SUMMARY: The Pacific Fishery Management Council's (Council) Model Evaluation Workgroup
(MEW)will hold a work session to finalize documentation for the Chinook and Coho Fishery Regulation Assessments Models (FRAM), and to plan work projects for 2007 and beyond. The meeting is open to the public. DATES: The work session will be held Wednesday, June 13, 2007, from 9 a.m. to 4 p.m. ADDRESSES: The work session will be held at the Pacific Fishery Management Council Office, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384. FOR FURTHER INFORMATION CONTACT: Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council; telephone:
(503)820-2280. SUPPLEMENTARY INFORMATION: The purpose of the work session is to finalize documentation for the Chinook and Coho FRAM, plan work activities associated with the Council's 2007 salmon methodology review precess, and to consider a strategic work plan for the MEW. Although non-emergency issues not contained in the meeting agendas may come before the MEW for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at
(503)820-2280 at least 5 days prior to the meeting date. Dated: May 21, 2007. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-10011 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA42 Endangered Species; File No. 1604 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Issuance of permit. SUMMARY: Notice is hereby given that the U.S. Fish and Wildlife Service (Dr. Chester Figiel, Principal Investigator), 5308 Spring Street, Warm Springs, GA 31830, has been issued a permit to take captive shortnose sturgeon ( *Acipenser brevirostrum* ) for purposes of enhancement and scientific research. ADDRESSES: The permit and related documents are available for review upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Protected Resources Division, Southeast Region, NMFS, 263 13th Avenue South,St. Petersburg, FL 33701; phone
(727)824-5312; fax
(727)824-5309. FOR FURTHER INFORMATION CONTACT: Malcolm Mohead, or Jennifer Skidmore (301)713-2289. SUPPLEMENTARY INFORMATION: On April 13, 2007, notice was published in the **Federal Register** (72 FR 18636) that a request for an enhancement and scientific research permit to take captive shortnose sturgeon had been submitted by the above-named organization. The requested permit has been issued under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 *et seq.* ) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226). The primary objective is to utilize the available captive brood stock population to provide information needed for implementation of recovery efforts, as described in the “Final Recovery Plan for the Shortnose Sturgeon ( *Acipenser brevirostrum* )” (NMFS, 1998). Captive shortnose sturgeon will be maintained, conditioned, spawned and the gametes and progeny used for scientific studies, such as cryo-preservation, genetics, culture techniques, behavioral studies, nutrition, and tagging techniques. An additional study characterizing the genetic strains of sturgeon in rivers of the Southeast Atlantic coast will be accomplished using tissues samples archived at the NOAA/NOS Laboratory in Charleston, South Carolina. This project will not require any further takes from the wild or any release of captive sturgeon into the wild. The permit is authorized for five years. Issuance of this permit, as required by the ESA, was based on a finding that such permit
(1)was applied for in good faith,
(2)will not operate to the disadvantage of such endangered or threatened species, and
(3)is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: May 18, 2007. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-9961 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA41 Endangered Species; File No. 1526 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application for modification SUMMARY: Notice is hereby given that Andre Landry, Sea Turtle and Fisheries Ecology Research Lab, Texas A&M University at Galveston, 5007 Avenue U, Galveston, TX 77553, has requested a modification to scientific research Permit No. 1526. DATES: Written, telefaxed, or e-mail comments must be received on or before June 25, 2007. ADDRESSES: The modification request and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727)824-5312; fax (727)824-5309. Written comments or requests for a public hearing on this request should be submitted to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular modification request would be appropriate. Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is *NMFS.Pr1Comments@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier: File No. 1526. FOR FURTHER INFORMATION CONTACT: Patrick Opay, (301)713-2289. SUPPLEMENTARY INFORMATION: The subject modification to Permit No. 1526, issued on August 1, 2005 (70 FR 44091) is requested under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226). Permit No. 1526 authorizes the permit holder to study Kemp's ridley, loggerhead, green, and hawksbill sea turtles in the Gulf of Mexico to identify their relative abundance over time; detect changes in sea turtle size composition; document movement and migration patterns; and determine the role of nearshore habitats in sea turtle survival. The permit holder is asking to extend his current annual authorization to take 50 juvenile and 50 sub-adult green sea turtles in Laguna Madre, Texas through year 2010 in order to generate more robust population estimates, yield a larger sample size for estimating growth rates and residency and fidelity in constituent habitats, and increase the potential to recapture turtles for additional information. The permit holder also requests authorization to attach satellite transmitters to 20 animals annually and to collect biopsy samples from 150 animals annually for stable isotope analysis through year 2010 to learn more about habitat preference and residency. All animals would be captured in Texas waters in the manner already authorized under Permit No. 1526. Dated: May 17, 2007. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-9963 Filed 5-23-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE Patent and Trademark Office Trademark Trial and Appeal Board
(TTAB)Actions ACTION: Proposed collection; comment request. SUMMARY: The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the revision of a continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: Written comments must be submitted on or before July 23, 2007. ADDRESSES: You may submit comments by any of the following methods: • *E-mail: Susan.Fawcett@uspto.gov.* Include “0651-0040 comment” in the subject line of the message. • *Fax:* 571-273-0112, marked to the attention of Susan K. Fawcett. • *Mail:* Susan K. Fawcett, Records Officer, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. • *Federal e-Rulemaking Portal: http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to the attention of Jyll Taylor, Administrative Trademark Judge, Trademark Trial and Appeal Board, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-4314; or by e-mail at *jyll.taylor@uspto.gov.* SUPPLEMENTARY INFORMATION: I. Abstract This collection of information is required by the Trademark Act Sections 13, 14, and 20, 15 U.S.C. 1063, 1064, and 1070, respectively. Under the Trademark Act, any individual or entity that adopts a trademark or service mark to identify its goods or services may apply to federally register its mark. Section 14 of the Trademark Act allows individuals and entities to file a petition to cancel a registration of a mark, while Section 13 allows individuals and entities who believe that they would be damaged by the registration of a mark to file an opposition, or an extension of time to file an opposition, to the registration of a mark. Section 20 of the Trademark Act allows individuals and entities to file an appeal from any final decision of the Trademark Examining Attorney assigned to review an application for registration of a mark. The USPTO administers the Trademark Act pursuant to 37 CFR part 2, which contains the various rules that govern the filing of petitions to cancel the registrations of marks, notices of opposition to the registration of a mark, extensions of time to file an opposition, appeals, and other papers filed in connection with inter partes and ex partes proceedings. These petitions, notices, extensions, and additional papers are filed with the Trademark Trial and Appeal Board (TTAB). The information in this collection can be submitted in paper format or electronically through the Electronic System for Trademark Trials and Appeals (ESTTA). There are no paper forms associated with this collection. However, the TTAB has suggested formats for the Petition to Cancel and the Notice of Opposition that individuals and entities can use when submitting these petitions and notices to the TTAB. These are not forms and, as such, do not have form numbers. If applicants or entities wish to submit the petitions, notices, extensions, and additional papers in inter partes and ex parte cases electronically, they must use the forms provided through ESTTA. Oppositions to extensions of protection under the Madrid Protocol (or requests for extensions to time to oppose) must be filed electronically through ESTTA. This collection contains two suggested formats and six electronic forms. The additional papers filed in inter partes and ex parte proceedings can be filed in paper or electronically. Although the number of paper filings are decreasing in favor of electronic filings, there are still a substantial number of paper submissions. Therefore, the USPTO is taking this opportunity to add the paper submissions of the additional papers that are filed in inter partes and ex parte proceedings into the collection. II. Method of Collection By mail, hand delivery, or electronically through ESTTA when a party files a petition to cancel a trademark registration, an opposition to the registration of a trademark, a request to extend the time to file an opposition, a notice of appeal, or additional papers for inter partes and ex parte proceedings with the USPTO. However, notices of opposition and extensions of time to file notices of opposition against the extensions of protection under the Madrid Protocol must be filed electronically through ESTTA. Only notices of appeal for ex parte appeals can be submitted by facsimile, in accordance with 37 CFR 2.195(d)(3). III. Data *OMB Number:* 0651-0040. *Form Number(s):* PTO 2120, 2151, 2153, 2188, 2189, and 2190. *Type of Review:* Revision of a currently approved collection. *Affected Public:* Business or other for-profit; not-for-profit institutions. *Estimated Number of Respondents:* 78,589 responses per year. *Estimated Time Per Response:* The USPTO estimates that it takes the public approximately 10 to 45 minutes (0.17 to 0.75 hours) to complete this information, depending on the request. This includes the time to gather the necessary information, prepare the petitions, notices, extensions, or additional papers, and submit the completed request to the USPTO. The USPTO believes that it will take the same amount of time (and possibly less time) to gather the necessary information, prepare the submission, and submit it electronically to the TTAB as it does to submit it in paper form. *Estimated Total Annual Respondent Burden Hours:* 18,566 hours. *Estimated Total Annual Respondent Cost Burden:* $3,657,502. The USPTO estimates that it will take a 50/50 level of effort by associate attorneys and paraprofessionals/paralegals to complete the requirements in this collection. The professional hourly rate for associate attorneys in private firms is $304, while the hourly rate for paraprofessionals/paralegals in private firms is $90. After calculating the average of these rates, the USPTO believes that the hourly rate for completing the petitions, notices, requests, and other papers will be $197. Using this hourly rate, the USPTO estimates that the total respondent cost burden for this collection is $3,657,502 per year. Item Estimated time for response (minutes) Estimated annual responses Estimated annual burden hours Petition to Cancel 45 476 357 Electronic Petition to Cancel 45 1,109 832 Notice of Opposition 45 2,015 1,511 Electronic Notice of Opposition 45 4,975 3,731 Extension of Time to File an Opposition 10 2,476 421 Electronic Request for Extension of Time to File an Opposition 10 22,284 3,788 Papers in Inter Partes Cases (file answers, amendments to pleadings, amendment of application or registration during proceeding, motions (such as consent motions, motions to extend, and motions to suspend), evidence, briefs, surrender of registration, abandonment of application, documents related to concurrent use applications, and appeals to court and civil actions in opposition and cancellation proceedings) 10 11,500 1,955 Electronic Papers in Inter Partes Cases (file answers, amendments to pleadings, amendment of application or registration during proceeding, motions (such as consent motions, motions to extend, and motions to suspend), evidence, briefs, surrender of registration, abandonment of application, documents related to concurrent use applications, and appeals to court and civil actions in opposition and cancellation proceedings) 10 25,000 4,250 Notice of Appeal 15 1,168 292 Electronic Notice of Appeal 15 1,752 438 Miscellaneous Ex Parte Papers 10 4,320 734 Electronic Miscellaneous Ex Parte Papers 10 1,514 257 Total 78,589 18,566 *Estimated Total Annual Non-hour Respondent Cost Burden:* $2,915,634. There are postage and recordkeeping costs, as well as filing fees, associated with this information collection. This collection does not have any capital start-up or maintenance costs. The petitions to cancel, the notices of opposition and appeal, the extensions of time to file an opposition, and the additional papers filed in inter partes and ex parte cases may be submitted to the USPTO or served on other parties by Express or first-class mail through the United States Postal Service. These papers can also be hand delivered to the TTAB. The USPTO estimates that 6% of the petitions, notices, extensions, and additional inter partes and ex parte papers that are filed in paper will be submitted using Express Mail. The USPTO estimates that the average submission will weigh 2 ounces and that the respondent will be mailing the original to the TTAB and serving copies on the other parties involved in the proceedings. The USPTO estimates that it costs $16.25 to send the petitions, notices, extensions, appeals, and additional papers by Express Mail to the TTAB. To account for the service of papers on other parties, the USPTO is adding an additional 20% of the postage rate for an estimated cost of $19.50. The USPTO estimates that up to 1,317 submissions per year may be mailed to the USPTO and other parties by Express Mail, for a postage cost of $25,682. The USPTO believes that 89% of the petitions to cancel, the notices of opposition and appeal, the extensions of time to file an opposition, and the additional papers filed in inter partes and ex parte proceedings that are filed in paper will be sent by first-class mail. The USPTO estimates that the average submission will weigh 2 ounces and that the respondent will be mailing the original to the TTAB and serving copies on the other parties involved in the proceedings. The USPTO estimates that it costs 58 cents to mail the petitions, notices, extensions, appeals, and additional papers to the TTAB. To account for the service of papers on other parties, the USPTO is adding an additional 80% of the postage rate for an estimated cost of $1.04. The USPTO estimates that up to 19,540 submissions per year may be mailed to the USPTO and other parties by first-class mail, for a postage cost of $20,322. Therefore, the USPTO estimates that the total postage cost for this collection is $46,004 per year. In addition, the USPTO also strongly advises applicants who file their petitions to cancel, notices of opposition, appeals, extensions of time to file an opposition, and additional papers for ex parte and inter partes cases electronically to keep a copy of the acknowledgment receipt as clear evidence that the file was received by the USPTO on the date noted. The USPTO estimates that it will take 5 seconds (0.001 hours) to print the acknowledgment receipt and that 56,634 petitions, notices, extensions, and other papers will be submitted electronically. Using the paraprofessional rate of $90 per hour, the USPTO estimates that the total recordkeeping cost for this collection will be $5,130 per year. There is also annual nonhour cost burden in the way of filing fees associated with this collection. The petitions to cancel and the notices of opposition and appeal have filing fees. There are no filing fees for the extensions of time to file an opposition. The additional papers that are filed in ex parte and inter partes proceedings do not have their own specific fees, so they do not add new fees to the collection. The filing fees for the petitions to cancel and notices of opposition are per class of goods and services in the subject application or registration; therefore the total filing fees can vary depending on the number of classes. The total filing fees of $2,864,500 shown here are the minimum fees associated with this information collection. Item Responses
(yr)Filing fees Total non-hour cost burden
(a)×
(b)Petition to Cancel 476 $300.00 $142,800.00 Electronic Petition to Cancel 1,109 300.00 332,700.00 Notice of Opposition 2,015 300.00 604,500.00 Electronic Notice of Opposition 4,975 300.00 1,492,500.00 Extension of Time to File an Opposition 2,476 0.00 0.00 Electronic Request for Extension of Time to File an Opposition 22,284 0.00 0.00 Papers in Inter Partes Cases (file answers, amendments to pleadings, amendment of application or registration during proceeding, motions (such as consent motions, motions to extend, and motions to suspend), evidence, briefs, surrender of registration, abandonment of application, documents related to concurrent use applications, and appeals to court and civil actions in opposition and cancellation proceedings) 11,500 0.00 0.00 Electronic Papers in Inter Partes Cases (file answers, amendments to pleadings, amendment of application or registration during proceeding, motions (such as consent motions, motions to extend, and motions to suspend), evidence, briefs, surrender of registration, abandonment of application, documents related to concurrent use applications, and appeals to court and civil actions in opposition and cancellation proceedings) 25,000 0.00 0.00 Notice of Appeal 1,168 100.00 116,800.00 Electronic Notice of Appeal 1,752 100.00 175,200.00 Miscellaneous Ex Parte Papers 4,320 0.00 0.00 Electronic Miscellaneous Ex Parte Papers 1,514 0.00 0.00 Totals 78,589 2,864,500.00 The USPTO estimates that the total non-hour respondent cost burden for this collection, in the form of postage and recordkeeping costs, in addition to the filing fees, is $2,915,634 per year. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: May 18, 2007. Susan K. Fawcett, Records Officer, USPTO, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division. [FR Doc. E7-10041 Filed 5-23-07; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF COMMERCE Patent and Trademark Office Patent Public Advisory Strategic Planning Survey ACTION: Proposed collection; comment request. SUMMARY: The Patent and Trademark Office, Patent Public Advisory Committee, invites the general public and other Federal agencies to take this opportunity to comment on this new information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: Written comments must be submitted on or before July 23, 2007. ADDRESSES: You may submit comments by any of the following methods: • *E-mail: Susan.Fawcett@uspto.gov.* Include “0651-00xx PPAC Strategic Planning Survey” in the subject line of the message. • *Fax:* 571-273-0112, marked to the attention of Susan K. Fawcett. • *Mail:* Susan K. Fawcett, Records Officer, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. • *Federal e-Rulemaking Portal* : *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to the attention of 0651-00xx Patent Public Advisory Strategic Planning Survey c/o Andrew I. Faile, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by facsimile at 571-273-6950, or by e-mail at *Andrew.faile@uspto.gov.* SUPPLEMENTARY INFORMATION: I. Abstract The Patent Public Advisory Committee
(PPAC)was established under 35 U.S.C. 5 as a nine member committee appointed by the Secretary of Commerce and serving at the pleasure of the Secretary of Commerce, with the duty to review the policies, goals, performance, budget, and user fees of the United States Patent and Trademark Office with respect to patents. In order to obtain data for a review of the policies, goals, and performance, the PPAC will conduct a survey, gather and analyze issues pertaining to potential problems and improvements to the U.S. Patent systems. Through this survey the PPAC will assist the USPTO in meeting its strategic goals, including efforts to optimize the patent process, in a clearly and concisely articulated and documented format. The outreach survey project will be designed to query from a representative diversity of business and industry sectors, as well as academia and others involved in developing innovation from conception to commercialization. The PPAC intends to use the data to measure how well the agency is meeting established programmatic expectations, to identify any disjoints between industry expectations and USPTO performance, and to develop improvement strategies that are inline with the agency strategic plan. To obtain data, the PPAC proposes to use data gathering mechanisms to include but not be limited to: Focus groups, online surveys and one-on-one interviews. Focus groups will include individuals representing a cross section of the external Intellectual Property community and analysis of survey results will obtain both quantitative and qualitative responses. This is a voluntary survey. The collected data will not be linked to the respondent and contact information that is used for sampling purposes will be maintained in a separate file from the quantitative data. Respondents are not required to provide any identifying information such as their name, address, or Social Security Number. In order to access and complete the online survey, respondents will need to use the username and password provided by the USPTO. II. Method of Collection In person, by mail, and/or electronically over the Internet. III. Data *OMB Number:* 0651-00xx. *Form Number(s):* N/A. *Type of Review:* New information collection. *Affected Public:* Individuals or households; business or other for-profit; not-for-profit institutions; Federal Government; and state, local, or tribal Government. *Estimated Number of Respondents:* 2,665 responses per year. It is estimated that the PPAC will conduct 6 focus groups of 20 respondents, 6 virtual focus groups of 20 attendees, 4 online surveys of up to 600 participants, and up to 25 one-on-one interviews. The respondent group will include industry leadership throughout the United States. Due to the nature of the survey, which is being conducted as an outreach support project, the respondent group is expected to be higher than a random sampling survey audience. The PPAC expects to conduct these surveys once. The PPAC estimates that 70% of online surveys will be completed, 60% of all focus group invitees will attend, 60% of online surveys will be submitted, and 50% of the one-on-one interviews will be attended. *Estimated Time per Response:* The USPTO estimates that it will take approximately 10 minutes (0.17 hours) to complete the online version of this survey. This includes the time to gather the necessary information, complete the request, and submit it to the USPTO. The expectation is that it will take approximately 30 minutes (0.5 hours) to complete a focus group session; and 20 minutes (0.33 hours) to complete a one-on-one interview. *Estimated Total Annual Respondent Burden Hours:* 536 hours. *Estimated Total Annual Respondent Cost Burden:* $162,944. The USPTO believes that a variety of professionals and industry leaders will be responding to these surveys, and as such the basis used for cost burden is that of the professional hourly rate of $304 for associate attorneys in private firms. Item Estimated time for response (in minutes) Estimated annual responses Estimated annual burden hours PPAC Focus Group Session 30 120 60 PPAC Virtual Focus Groups 30 120 60 PPAC Online Strategic Planning Survey 10 2,400 408 PPAC One-On-One Interview Survey 20 25 8 Total 2,665 536 *Estimated Total Annual Non-hour Respondent Cost Burden:* $0. There are no capital start-up, maintenance, operation, or recordkeeping costs, nor are there any filing fees associated with this information collection. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper planning of strategic initiatives, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: May 18, 2007. Susan K. Fawcett, Records Officer, U.S. Patent and Trademark Office, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division. [FR Doc. E7-10042 Filed 5-23-07; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF COMMERCE Patent and Trademark Office [Docket No. PTO-P-2007-0021] Grant of Interim Extension of the Term of U.S. Patent No. 4,927,855; NUVIGIL
(TM)(armodafinil) AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Notice of interim patent term extension. SUMMARY: The United States Patent and Trademark Office has issued an order granting interim extension under 35 U.S.C. 156(d)(5) for a one-year interim extension of the term of U.S. Patent No. 4,927,855. FOR FURTHER INFORMATION CONTACT: Mary C. Till by telephone at
(571)272-7755; by mail marked to her attention and addressed to the Commissioner for Patents, Mail Stop Hatch-Waxman PTE., P.O. Box 1450, Alexandria, VA 22313-1450; by fax marked to her attention at
(571)273-7755, or by e-mail to *Mary.Till@uspto.gov* . SUPPLEMENTARY INFORMATION: Section 156 of Title 35, United States Code, generally provides that the term of a patent may be extended for a period of up to five years if the patent claims a product, or a method of making or using a product, that has been subject to certain defined regulatory review, and that the patent may be extended for interim periods of up to a year if the regulatory review is anticipated to extend beyond the expiration date of the patent. On May 7, 2007, Cephalon, Inc., an agent of Laboratoire L. Lafon, the owner of record in the United States Patent and Trademark Office of U.S. Patent No. 4,927,855, timely filed an application under 35 U.S.C. 156(d)(5) for an interim extension of the term of U.S. Patent No. 4,927,855. The patent claims the human drug product NUVIGIL
(TM)(armodafinil) and a method of said product. The application indicates, and the Food and Drug Administration has confirmed, that a new drug application (NDA 21-875) for the human drug product NUVIGIL
(TM)(armodafinil) has been filed and is currently undergoing regulatory review before the Food and Drug Administration for permission to market or use the product commercially. Review of the application indicates that, except for permission to market or use the product commercially, the subject patent would be eligible for an extension of the patent term under 35 U.S.C. 156, and that the patent should be extended for one year as required by 35 U.S.C. 156(d)(5)(B). Because it is apparent that the regulatory review period will continue beyond the original expiration date of the patent (May 22, 2007), interim extension of the patent term under 35 U.S.C. 156(d)(5) is appropriate. An interim extension under 35 U.S.C. 156(d)(5) of the term of U.S. Patent No. 4,927,855 is granted for a period of one year from the expiration date of the patent, i.e., until May 22, 2008. Dated: May 18, 2007. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E7-10084 Filed 5-23-07; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF DEFENSE Office of the Secretary Sub Committee Meeting of the President's Commission on Care for America's Returning Wounded Warriors AGENCY: Department of Defense. ACTION: Federal Advisory Committee Sub Committee Meeting Notice. SUMMARY: Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended) and 41 Code of Federal Regulations
(CFR)102-3.140 thorough 160, the Department of Defense announces the forthcoming sub committee meeting: Subcommittees of the Commission will conduct preparatory work meetings at Ft. Bragg and Camp Lejeune, North Caroline June 19th to gather information, conduct research and analyze relevant issues and facts in preparation for a meeting of the Commission. Pursuant to section 102-3.160(a) of 41 Code of Federal Regulations (CFR), these subcommittee meetings are not open to the public, and the subcommittees are required to report their findings to the Commission for further deliberation. Dated: May 18, 2007. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. 07-2596 Filed 5-22-07; 10:59 am]
Connectionstraces to 64
Traces to 64 documents
U.S. Code
51 references not yet in our index
  • 18 CFR 292
  • Pub. L. 109-58
  • 119 Stat. 594
  • 18 CFR 39
  • 44 USC 3501-3520
  • 5 CFR 1320.11
  • 5 USC 601-12
  • 16 USC 791a-825r
  • 42 USC 7101-7352
  • 32 CFR 635
  • 5 USC 601-612
  • 42 USC 14071
  • 40 CFR 52
  • Pub. L. 104-4
  • 48 CFR 970
  • 5 CFR 1320.3(c)
  • 10 CFR 1021
  • Pub. L. 105-277
  • 41 USC 418b
  • 14 CFR 39
  • 33 CFR 110
  • Pub. L. 104-121
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 33 USC 2035
  • 33 USC 2030
  • 34 CFR 75
  • 34 CFR 79
  • 34 CFR 74.2
  • 34 CFR 80.3
  • 39 CFR 111
  • 40 CFR 601
  • 40 CFR 2
  • Pub. L. 109-59
  • 40 CFR 86.1811-04(k)
  • 40 CFR 86.129-94
  • Pub. L. 105-178
  • 40 CFR 9
  • Pub. L. 104-113
  • 40 CFR 600.207-93
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U.S.C.§ 3502
U.S.C.§ 3507
C.F.R.§ 380.4
U.S.C.§ 632
Cite18 CFR 292
Pub. L.Pub. L. 109-58
Stat.119 Stat. 594
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